Mohd. Moin Faridulla Qureshi (A-43) Vs. The State of Maharashtra, through CBI-STF, Mumbai

Appeal: Criminal Appeal Nos. 653 and 656 of 2008

Petitioner: Mohd. Moin Faridulla Qureshi (A-43)

Respondent: The State of Maharashtra, through CBI-STF, Mumbai

Apeal: Criminal Appeal Nos. 653 and 656 of 2008

Judges:

Date of Judgment: Mar 21, 2013

TADA Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 304, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Sections 3, 27 Conviction under Bombay blast case Role and involvement of accused Md. Moin Faridulla Qureshi (A43) Charge of conspiracy, murder etc. Evidence against him Appreciation Evidence comprising of confessional statements by co-accused namely A13, A 23, A32, A36, A39, A49, A52, A 57, A64 Further corroboration by approver (PW2) and other PWs Accused fled in order to avoid his arrest Filled RDX etc., in vehicles Accused identified in TIP Recoveries from spot establishing presence of RDX Recoveries of hand grenades at his instance in presence of PWs Evidence of injured victims regarding deaths Evidence of his participating in training programme at Sandheri, but those witness not identifying this accused Sufficient evidence about his presence brought on record. Held that charges stand proved. He actively and knowingly participated in crime. Conviction and sentences affirmed.

Held
Upon perusal of the said confessions of co-accused persons, it is thus established that the appellant:-

(i) participated in training of handling of arms and ammunitions and explosives at Sandheri and Borghat;

(ii) participated in conspiratorial meeting;

(iii) took oath that he will do Jehad;

(iv) conducted survey of targets along with PW-2 and other co-accused;

(v) filled RDX and iron scraps in vehicles;

(vi) lobbed hand grenades at fishermens colony;

(vii) after committing such a heinous crime fled in order to avoid his arrest.

Depositions of PWs 5, 6 and 13, the eye witnesses to the incident, it is established that the appellant lobbed hand grenades and caused explosions. They further identified the Maruti van bearing number MP-D-13-385 as the vehicle in which the appellant came along with other co-accused and, thereafter, fled away after lobbing the hand grenades. (Para 324.6)

The aforesaid eye-witnesses viz., PWs-5, 6 and 13 have duly identified the appellant in the TIP dated 15.05.1993 conducted by Shri Moreshwar Thakur (PW-469) for which memorandum panchnama marked as Exh. 1515 was prepared. (Para 325)

On 26.04.1993, the appellant, in the presence of panch witnesses, viz., Eknath Jadhav (PW-606) and Krishnanad Alwin (PW-41), made a disclosure to the police for which disclosure Panchnama Exhibit 133 was prepared, and thereafter, he led the police party and the panchas and got recovered 17 hand grenades (marked as Art. 54(xvii) colly) which he took out from a water tank and the same were seized by the police vide seizure Panchnama Exhibit 134. (Para 327)

Maruti Van in which A-13, A-32, A-36, A-39, A-43 and Mehboob Liyaqat Khan (AA) were seated was arranged by Suleman Lakdawala (PW-365) at the behest of Mohd. Shafi Jariwala (AA). This has also been proved by the said witness. Further, the depositions of Kailash Govind Rao Baheti (PW-342) and Shakeel Suleman Hasham (PW-366) are pertinent as it complete the link relating to purchase/arrangement of the said Maruti Van used in the incident. (Para 331)

Number and the said blue Maruti Van has been identified by PWs-5, 6 and 13 in their depositions as the vehicle which was involved in the said incident at Fishermens Colony. Thus, PW- 342, therefore, corroborates the deposition of PW-366 in that both the Vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain and was given registration number bearing MP-13-D-0385. (Para 331.3)

The confessions of the co-accused viz. A-13 and A-23, establish the involvement and participation of the appellant in the training programme. Even if the witnesses have not identified that does not cause any dent on the prosecution case as sufficient evidence has been placed on record by the prosecution to establish the presence and participation of the appellant at Sandheri and Borghat. (Para 333)

This Court in Hari Ram v. State of Rajasthan & Anr., [JT 2009 (8) SC 47], considered the definition of juvenile given under Section 2 (k) & (l) for offences committed prior to 01.04.2001 when the JJ Act came into force and held that by virtue of the amendment introduced in Section 20 of the JJ Act, particularly, putting the proviso and explanation to Section 20 of the Act made explicit that in all pending cases including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the JJ Act would apply retrospectively as if the said provisions had been in force when the alleged offence was committed. The issue of juvenile can be raised at any stage of the proceeding and even if the accused ceased to be juvenile on or before the commencement of the JJ Act. Thus, any person who was below 18 years of age on the date of commission of offence, even prior to 01.04.2001 would be treated as juvenile even if the claim of the juvenility is raised after attaining the age of 18 years on or before the commencement of the Act. The Court has categorically held that the JJ Act applies retrospectively and a person can apply even where the criminal proceedings have attained finality. The Juvenile Justice (Care and Protection of Children) Rules 2007 (hereinafter referred to as 2007 Rules) were brought into force on 26th October 2007. As per Rule 97(2) all the cases pending which have not received finality will be dealt with and disposed of in terms of the provisions of the 2000 Act as amended on 22.08.2006 and 2007 Rules. This view stands approved and affirmed by a larger bench judgment on reference in Abuzar Hossain @ Gulam Hossain v. State of West Bengal [JT 2012 (10) SC 454] (Para 339)

A statute must be interpreted having regard to the purport and object of the Act. The doctrine of purposive construction must be resorted to. It would not be permissible for the court to construe the provisions in such a manner which would destroy the very purpose for which the same was enacted. The principles in regard to the approach of the Court in interpreting the provisions of a statute with the change in the societal condition must also be borne in mind. The rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations. It is the duty of the court to adopt a harmonious construction by which both the provisions remain operative. (Para 341)

Where two statutes provide for overriding effect on the other law for the time being in force and the court has to examine which one of them must prevail, the court has to examine the issue considering the following two basic principles of statutory interpretation:

1. leges posteriores priores conterarias abrogant (later laws abrogate earlier contrary laws).

2. generalia specialibus non derogant (a general provision does not derogate from a special one.) (Para 342)

A general provision does not derogate from a special one. It means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. (Para 343)

While passing a special Act, the legislature devotes its entire consideration to a peculiar subject. Therefore, when a general Act is subsequently passed, it is logical to presume that the legislature has not repealed or modified the former special Act unless an inference may be drawn from the language of the special Act itself. (Para 345)

Where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature conveyed by the language of the relevant provisions therein. (Para 347)

Section 6 of JJ Act contains a non-obstante clause giving overriding effect to any other law for the time being in force and provides that Juvenile Justice Board, where it has been constituted, shall have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. Section 18(i) further provides that notwithstanding contained in Section 223 of the Code or any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. More so, non-obstante clause contained in various provisions thereof, particularly, Sections 15, 16, 18, 19 and 20 make the legislative intent unambiguous that the JJ Act being a special law would have override effect on any other statute for the time being in force. (Para 361)

The TADA 1987 provides for a deterrent measures to deal with the menace of such serious offences like terrorism and disruptive activities and for matters connected therewith. Therefore, the object of the Act is to deal with the security of the State as well as the citizens. (Para 364)

TADA contains many non-obstante clauses as well. The punishments provided by Sections 5 and 6 of TADA are to be imposed notwithstanding anything to the contrary in any other law. Section 7 enables the State to confer the power of arrest to certain persons. The Designated Court alone has the jurisdiction to try offences under TADA as revealed under Section 9. Further, Section 20 of TADA provides that irrespective of any provision of the Code or any other law. (Para 365)

Sections 5 and 6 which are mandatory in nature provide for imposition of minimum sentence to achieve the objectives of the Act. Undoubtedly, TADA applies to deal with an extraordinary situation and problems and extreme measures to be resorted when it is not possible for the State to tackle the situation under the ordinary penal law. TADA provides for a special machinery to combat the growing menace of terrorism in the country specifically where accused cannot be checked and controlled under the ordinary law of the land. Disruptive activities have been defined in clause 2(b) as the Act deals to prevent the menace of terrorism. (Para 367)

Section 3 provides for punishment for terrorist acts and provides whoever with intention commits such acts shall be punishable. Section 3 provides for punishment for terrorist acts and its submissions started with whoever except clause 5 which starts with any person. Therefore, it covers every person including the juvenile. Section 4(1) provides for punishment for disruptive activities and also uses the same terminology i.e. whoever. Section 6 provides for enhanced punishments and refers to any person. Therefore, the phraseology used by legislature included every person whoever he may be. (Para 369)

we cannot accept the contention that JJ Act would over-ride the provisions of TADA in all circumstances without any exception and in case the legislature itself has carved out an exception not to grant relief to a juvenile under the JJ Act, it cannot be held that it would prevail over TADA under all possible circumstances. (Para 372)

Section 4(1) of JJ Act was added by amendment with effect from 22.08.2006. In fact, this provision gives the over-riding effect to this Act over other statutes. However, it reads that the Act would override anything contained in any other law for the time being in force. TADA was admittedly not in force on 22.8.2006. (Para 379)

Thus, we do not think that the JJ Act would have an over-riding effect on TADA which was not in existence on the date of commencement of the provisions of Section 1(4) of JJ Act. (Para 380)

TADA, being a special act, meant to curb the menace of terrorist and disruptive activities will have effect notwithstanding the fact that JJ Act is general and beneficial legislation. On perusal of aims and objects of TADA, it is clear that the act is brought into the statute books to deal with a special category of persons, viz., Terrorists. (Para 381)

TADA, thus, being an act enacted for special purposes, as stated above, will have precedence over any other act. (Para 382.1)

From the reading of the entire evidence placed by the prosecution, it is established beyond doubt that:

(i) The appellant took oath that he will take revenge against Hindus;

(ii) The appellant received training in handling of arms and explosives at Sandheri and Borghat;

(iii) He attended conspiratorial meeting at the residence of Babloo and Mobina;

(iv) He participated in filling of RDX and iron scraps in vehicles in the intervening night of 11/12.03.1993 at Al-Hussaini Building;

(v) He along with other co-accused lobbed hand-grenades at Mahim Fishermens colony;

(vi) He possessed 17 hand-grenades which were concealed in the over-head water tank of Room No. 27, Chawl No. 22, Transit Camp, Bandra (E), Bombay which were recovered at his instance. (Para 384)

Upon a reading of the entire evidence, we hold that all the charges framed against him stand proved beyond any doubt. (Para 384.1)

The appellant took training in handling of arms and ammunitions and explosives at Sandheri, attended conspiratorial meetings, kept hand grenades in his possession, actively participated in the preparation of vehicle bombs which were later planted at various locations resulting in the death of hundreds of people and injuries to many others and went to the Fishermens Colony at Mahim and threw hand grenades. Despite being fully aware of the conspiracy, the appellant proceeded to act by taking training, preparation of vehicle bombs and even throwing hand grenades in a populated place, thereby, furthering the object of such a heinous conspiracy. (Para 387)

316. Shri Prakash Sinha, learned counsel for the appellant (A-43) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
317. The instant appeals by Mohd. Moin Faridulla Qureshi (A-43) are directed against the final judgment and order of conviction and sentence dated 04.12.2006 and 24.07.2007 respectively, whereby the appellant (A-43) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
318. A common charge of conspiracy was framed against all the co- conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Machhimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
318.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant in pursuance of the criminal conspiracy abetted and knowingly facilitated acts preparatory to terrorist acts and committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He received training in handling of arms, ammunitions and explosives at Borghat and Sandheri;
(b) He attended conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Baya Musa Biwandiwala (A-96) where plans for committing terrorist acts were discussed and chalked out;
(c) He participated in filling and loading of explosives like RDX in various vehicles fitted with time device detonators in the intervening night of 11/12th March, 1993 at Al-Hussaini Building.
At head Thirdly: The appellant, along with other co-accused persons, went to Fishermens Colony at Mahim on 12.03.1993 at about 1.45 pm, in a Maruti Van bearing No. MP-13-D-385 and lobbed hand grenades on the hutments causing death of 3 persons, injuring 6 persons and causing loss of property worth Rs. 50,000/- and thereby committed an offence punishable under section 3(2)(i)(ii) of TADA read with Section 149 IPC.
At head Fourthly: The appellant, by doing the aforesaid act, committed an offence punishable under Section 148 IPC.
At head Fifthly: The appellant, by doing the aforesaid act which resulted into death of 3 persons, committed an offence punishable under Section 302 read with Section 149 IPC.
At head Sixthly: The appellant, by doing the aforesaid act which resulted into injuries to 6 persons, committed an offence punishable under Section 307 read with Section 149 IPC.
At head Seventhly: The appellant, by doing the aforesaid act which resulted into several injuries, committed an offence punishable under Section 324 read with Section 149 IPC.
At head Eighthly: The appellant, by doing the aforesaid act which resulted into loss of property worth Rs.50,000/-, committed an offence punishable under Section 436 read with Section 149 IPC.
At head Ninthly: The appellant was in possession of 17 hand-grenades during the period from January, 1993 to 26th April, 1993, which he concealed in the over-head water tank of the toilet of Room No. 27, Chawl No. 22, Transit Camp, Bandra (E), unauthorisedly, in a notified area of Greater Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Tenthly: The appellant was in possession of the above mentioned 17 hand-grenades with intention to commit terrorist act and thereby committed an offence punishable under Section 6 of TADA.
At head Eleventhly: The appellant, by possessing the above mentioned 17 hand-grenades, has committed an offence punishable under Sections 3 and 7 read with 25(1-A) and 25(1-B) (a) of the Arms Act, 1959.
319. The Designated Court found the appellant guilty on all the charges except charge at head tenthly. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy punishable under Section 3(3) of TADA and under Section 120-B for the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
(ii) The appellant has also been convicted under Section 3(3) of TADA for commission of acts specified at head secondly and has been sentenced to RI for 12 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 (one) year. (charge secondly)
(iii) The appellant has also been convicted for the commission of offence under Section 3(2)(i)(ii) of TADA read with Section 149 of IPC and has been sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for a period of 6 months. (charge thirdly)
(iv) The appellant has also been convicted for the commission of offence punishable under Section 148 of IPC and has been sentenced to RI for 3 years. (charge fourthly)
(v) The appellant has also been convicted under Section 302 read with Section 149 of IPC and has been sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. (charge fifthly)
(vi) The appellant has also been convicted under Section 307 read with Section 149 of IPC and has been sentenced to RI for 14 years along with a fine of Rs. 10,000/-, in default, to further undergo RI for a period of 3 (three) months. (charge sixthly)
(vii) The appellant has also been convicted under Section 324 read with Section 149 of IPC and has been sentenced to RI for 2 years. (charge seventhly)
(viii) The appellant has also been convicted under Section 436 read with Section 149 of IPC and has been sentenced to RI for 10 years along with a fine of Rs. 5,000/-, in default, to further undergo RI for a period of 1 (one) month. (charge eighthly)
(ix) The appellant has also been convicted for the commission of offence punishable under Section 5 of TADA and has been sentenced to RI for 10 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 (six) months. (charge ninethly)
Evidence
320. The evidence against the appellant (A-43) is in the form of:-
(i) confessions made by other co-conspirators; (co-accused);
(ii) testimony of prosecution witnesses; and
(iii) documentary evidence.
Confessional Statements of co-accused:
321. The prosecution pointed out that the involvement of the appellant in committing overt acts is revealed in the confessional statements of several co-accused persons which are summarized as under:
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
321.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The facts emerging from the said confession pertaining to the appellant are summarized as follows:
(i) The appellant was present on 7/8.03.1993, along with other co-accused persons, in a flat on the 7th floor of the building on the Hill Road, Bandra behind Bhabha Hospital.
(ii) The appellant, along with other co-accused persons, took oath by placing his hands on Holy Quran that they will take revenge for the atrocities committed on their community and will do Jehad for Islam and they would not disclose anything about this to anyone.
(iii) The appellant, along with A-13 and others, as instructed by Tiger, went to offer Namaz at Bandra Masjid and was told to wait for Tigers man, who would take him for the next job.
(iv) After offering Namaz, as told, around 1:15 in the night, they were picked up by Tigers man named Gani and they all left and reached on a hill where they were imparted training by Tiger Memon.
(v) After the training, they came back to Bombay and the appellant got down at Kala Nagar.
(vi) The appellant, along with other co-accused persons, attended a conspiratorial meeting on 10.03.1993 at a flat on Hill Road, Bandra. All the co-accused persons were given Rs. 5,000/- for giving the same at their homes in order to celebrate Eid and he further told them not to spend the money on themselves.
(vii) The appellant was present inside the garage at Al-Hussaini Building compound in the night of 11/12.03.1993 when black chemical was being filled in vehicles.
(viii) In the morning of 12.03.1993, the appellant and other co-accused persons were present at Al-Hussaini building where Javed gave them Rs. 5,000/-.
(ix) As told by Javed, the appellant, along with Salim, Bashir Khairulla, Mehmood, Feroz, Zakir and Abdul Akhtar went to throw the hand-grenades at Mahim slope cause-way.
(x) The appellant, along with other co-accused, got down from the car and lobbed hand grenades at Mahim Slope.
(xi) The appellant or Mahmood was having the bag containing hand grenades.
322. A perusal of the confession of A-13 shows that the appellant actively participated in the entire conspiracy to commit terrorist acts. He committed all possible acts, viz., taking oath to commit jehad; received training in handling of arms and ammunitions and explosives; attended conspiratorial meeting where plans were discussed; was present inside the garage of Al-Hussaini building when black chemical was being filled in vehicles and lobbed hand grenades at fishermens colony at Mahim.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
322.1 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone-III, Bombay. The facts emerging from the said confession pertaining to the appellant are summarized as follows:
(i) The appellant, along with others, took oath to do Jehad in order to take revenge for the atrocities on their community and not to disclose anything to anyone at a flat behind Bhaba Hospital.
(ii) The appellant, along with others, as instructed by Tiger Memon, went to Bandra and waited near Badi Masjid from where they were picked up around 12:30-1:00 a.m. in the night, by a man of Tiger who had come in a sky blue coloured Jeep.
(iii) Thereafter, they reached on a hill where they were imparted training in throwing hand-grenades and firing with AK-56 by Tiger Memon.
(iv) The appellant and others came back to Bombay after the training. The appellant, along with A-23, got down from the vehicle at the MHADA office.
(v) Two days thereafter, the appellant attended a meeting in a Flat at Bandra where all the members discussed their plans and Tiger distributed Rs. 5,000/- to each one of them for Eid celebrations.
(vi) He participated in the filling of RDX in the vehicles in the garage at Tiger’s residence.
(vii) The appellant was present in Tigers house at Mahim and received hand grenades from Javed and Usman.
(viii) The appellant went to Bangalore with Mehmud and A-23 in order to avoid arrest.
(ix) The appellant, after returning from Bangalore, went to his country.
322.2 The prosecution vehemently submitted that the confession of A-23 duly corroborates the role played by the appellant in the entire conspiracy. It is clear that the appellant committed all possible overt acts in order to commit terrorist acts. It is also clear from his confession that he was present inside the garage of Al-Hussaini building and participated in the filling of RDX in vehicles which were later planted as bombs at various places.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
322.3 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The facts emerging from the said confession, with reference to the appellant, are summarised hereunder:
(i) The appellant attended the conspiratorial meeting on 10.03.1993 at Bandra where Tiger Memon formed groups. They were directed to go to the godown of Bharat Petroleum Company at Chembur in order to throw hand grenades. Next day, PW-2 took all of us to the spot in a commander Jeep and did survey. All the people of our group were in the Jeep.
(ii) He was present in the night intervening 11/12 March, 1993 at the Al-Hussaini Building.
(iii) He was present in the flat of Tiger where he was given hand grenades by Javed and Usman.
(iv) Javed gave Rs. 5,000/- to each one of them and told them to leave for their mission at 2:30 p.m.
(v) The appellant, along with Zakir Hussain, Mehmood, Abdul Akhtar, Saleem Dandekar and Feroz went to Mahim slope Koliwada colony around 2:30 p.m. in a blue Maruti and lobbed hand-grenades.
322.4 Upon perusal of the confession of A-32, it is clear that the same corroborates with the fact that the appellant attended conspiratorial meeting; was present at Al-Hussaini building in the intervening night of 11/12.03.1993; lobbed hand grenades at fishermens colony. The appellant also conducted survey along with PW-2 and other co-accused persons.
Confessional Statement of Abdul Akhtar Khan (A-36)
322.5 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-36 reveals the following facts:
(i) The appellant, along with others, was loading RDX in the vehicles in the night intervening 11/12.03.1993 at Al-Hussaini Building.
(ii) Javed gave Rs. 5000/- to each one of them.
(iii) The appellant, along with others, was given hand grenades by Javed and Usman.
(iv) The appellant and Zakir brought a bag full of hand grenades.
(v) Javed also gave 5-6 grenades to others who were present there which they put in their bag which was being carried by the appellant and Zakir.
(vi) The appellant, along with others, went to Mahim slope-way and threw grenades on the hutments.
322.6 It can easily be inferred that the confession of A-36 corroborates with the fact that appellant filled RDX in vehicles and he along with other co-accused persons lobbed hand grenades at Fishermens colony
Confessional Statement of Akram Amani Malik (A-39)
322.7 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The facts emerging from the said confession, pertaining to the appellant, are summarised as under:
(i) On 10.03.1993, the appellant attended a meeting at Bandra.
(ii) The appellant and others were asked by Tiger Memon to do some work and that they will be given Rs. 5,000/- each.
(iii) The appellant, along with PW-2 and others, went to survey Chembur refinery.
(iv) The appellant, along with co-accused, went in a Maruti Van and threw hand grenades.
322.8 The confession of A-39 corroborates the abovesaid confessions and in particular that the appellant attended conspiratorial meeting; conducted survey of the target; travelled along with co-accused persons and lobbed hand grenades.
Confessional Statement of Nasim Ashraf Sherali Barmare (A-49)
322.9 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-49 corroborates with the fact that the appellant filled black soap (RDX) mixed with steel scrap jointly with other co-accused and was present at Al-Hussaini building till morning.
Confessional Statement of Salim Rahim Shaikh (A-52)
322.10 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The facts emerging from the said confession, pertaining to the appellant, are summarized as under:
(i) The appellant was present in the meeting held at Tigers flat where he formed groups.
(ii) The appellant, A-52 himself, Alam, Zakir, Bashir and Aslam were in one group.
(iii) On 11.03.1993, the appellant was present at the residence of Tiger Memon along with other accused persons.
(iv) The appellant also filled black soap from the soap boxes kept in the garage.
(v) All the persons including the appellant, who were filling the black soap wore gloves in their hands.
(vi) He, along with the accused and others, went in the Maruti Car to Mahim Slope, Koliwada and threw hand grenades causing bomb blast.
322.11 The confession of A-52 also corroborates the fact that the appellant attended conspiratorial meeting and that he filled RDX in vehicles in the night intervening 11/12.03.1993 and also lobbed hand grenades at fishermens colony.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
322.12 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 Hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The facts emerging from the said confession pertaining to the appellant are summarized as under:
(i) The appellant, along with others, was present in the flat at Bandra when Tiger Memon gave lecture about the loss suffered by Muslim community and also that they were doing this for their community and gave Rs. 5,000/- to everyone present there.
(ii) The appellant participated in filling of RDX in vehicles and putting of iron pieces in it.
(iii) The appellant was asked by Anwar to take rest from work of filling RDX.
(iv) In the morning, the appellant carried the rifle and kept it in the Maruti Car No. MFC 1972.
322.13 The confession of A-57 corroborates the fact that the appellant attended meeting where Tiger Memon talked about taking revenge and filled RDX in vehicles which were planted as bombs at various places.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
322.14 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 (9:15 pm.) and 24.01.1995 (9.45 am) by Shri HC Singh (PW-474), the then SP, CBI/SPE/STF, New Delhi. The confession of A-64 corroborates with the fact that the appellant was present at Al-Hussaini building in the night intervening 11/12.03.1993.
323. Upon perusal of the said confessions of co-accused persons, it is thus established that the appellant:-
(i) participated in training of handling of arms and ammunitions and explosives at Sandheri and Borghat;
(ii) participated in conspiratorial meeting;
(iii) took oath that he will do Jehad;
(iv) conducted survey of targets along with PW-2 and other co-accused;
(v) filled RDX and iron scraps in vehicles;
(vi) lobbed hand grenades at fishermens colony;
(vii) after committing such a heinous crime fled in order to avoid his arrest.
Deposition of Prosecution Witnesses:
324. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2) (Approver)
324.1 His deposition reveals about the involvement of A-43 in the conspiracy. The relevant material in his evidence is as under:-
(i) PW-2 stated that he knew Moin Faridulla Qureshi as Moin.
(ii) He identified the appellant before the Court.
(iii) The appellant attended the conspiratorial meeting at Shakeels residence on 07.03.1993.
(iv) Tiger Memon told PW-2 to show the Chembur Refinery to the appellant and others.
(v) The appellant was also present in Tigers flat at Al-Hussaini building in the night of 11/12.03.1993.
(vi) He was actively involved in filling of RDX in the dickey of motor vehicles on the night of 11/12.03.1993.
(vii) Javed Chikna gave 4 hand grenades to A-43 and others in order to throw the same at Fishermens Colony at Mahim.
324.2 The above deposition of the approver duly corroborates the confessions of the co-accused and thus establishes the fact that the appellant attended conspiratorial meetings, he was present at Al-Hussaini building in the night intervening 11/12.03.1993 and filled RDX in vehicles and that he was given hand grenades to be lobbed at Fishermens colony. PW-2 duly corroborates the confession of co-accused in material respects.
Deposition of Laxmikant Ramachandra Patil (PW-5)
324.3 PW-5 is a resident of the Fishermens Colony and is an eye witness to the incident. He had witnessed the incident while he was waiting on the road which is summarized as under:
(i) He deposed that 5-6 persons got down from a blue coloured Maruti Van and threw green coloured things, which could be held in the hand, towards the colony.
(ii) He identified the appellant in court.
(iii) He participated in the identification parade dated 15.05.1993 conducted by Moreshwar Thakur (PW-469) Special Executive Magistrate at Mahim Police Station and he also identified the appellant.
(iv) On 13.03.1993, in the police station, he also identified the vehicle No. MP-13-D-385 as the car in which the appellant came to Mahim slope in order to throw hand grenades.
Deposition of Santosh Patil (PW-6)
324.4 PW-6 is a resident of Mahim Fishermens Colony at Mahim. He deposed that he witnessed the incident while he was waiting near the Municipal School at Mahim slope. He deposed as under:
(i) 6 persons came in a blue Maruti Van to Mahim Machhimar colony and the number of the said vehicle was MP 385 and threw something in the direction of the Zopadpatty which caused explosions.
(ii) He identified the appellant before the court to be the person who lobbed the hand grenades.
(iii) On 10.04.1993, he identified the blue Maruti Van at the Mahim Police Station. The Van was bearing the Reg. No. MP 13 D-385.
(iv) He also identified the appellant in the identification parade dated 15.05.1993 (Exhibit 1515) conducted by Special Executive Magistrate (PW-469) at Mahim Police Station.
Deposition of Shashikant Shetty (PW-13)
324.5 PW-13 is a resident of Mahim Fishermens Colony at Mahim. He is an eye witness to the incident. He deposed as under:
(i) He witnessed a part of the incident as soon as he came out of his house after hearing the sound of explosions.
(ii) He saw 4-5 people getting down from the Van and throwing something on the basti which resulted in explosions.
(iii) PW 13 identified the appellant in Court.
(iv) PW-13 participated in the identification parade dated 15.05.1993 (Exhibit 1515) conducted by Special Executive Magistrate (PW-469) at Mahim police station and identified all the accused including the appellant.
(v) PW-13 identified the Maruti Van in which the appellant along with co-accused persons came to Mahim Machhimar Colony as MP-D-13-385.
(vi) PW 13 lodged a First Information Report (FIR) in respect of the explosions at Mahim Fishermens colony.
324.6 Upon perusal of the aforesaid depositions of PWs 5, 6 and 13, the eye witnesses to the said incident, it is established that the appellant lobbed hand grenades and caused explosions. They further identified the Maruti van bearing number MP-D-13-385 as the vehicle in which the appellant came along with other co-accused and, thereafter, fled away after lobbing the hand grenades.
Investigation, Recoveries and Reports:
325. The aforesaid eye-witnesses viz., PWs-5, 6 and 13 have duly identified the appellant in the TIP dated 15.05.1993 conducted by Shri Moreshwar Thakur (PW-469) for which memorandum panchnama marked as Exh. 1515 was prepared.
326. On 12.03.1993, Shantaram Gangaram Hire (PW-562), Police Officer, visited the blast site i.e., Fishermens colony at Mahim and prepared spot panchnama in the presence of panch witnesses, viz., Dayaram Timbak Akare and Mahendra Sadanand Mehre. PW-562, in the presence of Tamore (PW-330) and experts collected the articles from the blast site vide Panchnama Exh. No. 1221 which were sent to the Forensic Science Laboratory (FSL) for opinion. The FSL Report Exh. Nos. 1943, 1943-A(i) and 1943-A(ii) proves the remnants to be explosives and part of hand grenades.
327. On 26.04.1993, the appellant, in the presence of panch witnesses, viz., Eknath Jadhav (PW-606) and Krishnanad Alwin (PW-41), made a disclosure to the police for which disclosure Panchnama Exhibit 133 was prepared, and thereafter, he led the police party and the panchas and got recovered 17 hand grenades (marked as Art. 54(xvii) colly) which he took out from a water tank and the same were seized by the police vide seizure Panchnama Exhibit 134.
328. The seized articles were sent to FSL for opinion vide Exhibit 2439 and the FSL Report (Exhibit 2439-A) confirms the articles to contain Penta Crythritol Tetra Nitrate (PENT).
Evidence regarding injured victims and deceased:
329. It is seen from the records that in July, 1993, Achyut Shamrao Pawal (PW-542), Police Inspector, collected the injury certificates of injured persons, namely, Mr. Gurudutt Agaskar, Ms. Rajashri Agaskar and Ms. Sheetal Keni from Bhaba Hospital which amply prove that they sustained injuries during the blast. Injured Shashikant Shetty (PW-13) and Sheetal Keni (PW-412) also proved to have sustained injuries during the blast. Dr. Wadekar (PW-641) and Dr. Krishna Kumar (PW-640) were the doctors who have proved the injury certificates issued to PW-13 and PW-412 respectively.
330. Gajanan Tare (PW-413) (husband of the deceased Gulab Tare) and Karande (PW-414) (nephew of the deceased Hira Dhondu Sawant) claimants of two bodies, have proved the death of Mrs. Gulab Tare (wife of PW-413) and Smt. Hira Dhondu Sawant (PW 414s aunt) in the said incident. PW-482 and PW-480 have established the cause of death to be the injuries received on 12.03.1993. Achyut Shamrao Pawal (PW-542) also proved the death of 3 persons at Fishermens Colony in the said incident.
Vehicle used for committing the act:
331. It is seen from the materials that the said Maruti Van in which A-13, A-32, A-36, A-39, A-43 and Mehboob Liyaqat Khan (AA) were seated was arranged by Suleman Lakdawala (PW-365) at the behest of Mohd. Shafi Jariwala (AA). This has also been proved by the said witness. Further, the depositions of Kailash Govind Rao Baheti (PW-342) and Shakeel Suleman Hasham (PW-366) are pertinent as it complete the link relating to purchase/arrangement of the said Maruti Van used in the incident.
Deposition of Kailash Govind Rao Baheti (PW-342)
331.1 He deposed as follows:-
On 18.01.1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red coloured Maruti Van in the name of Asif Darvesh resident of M.G. Road, Indore and another new Maruti Van of blue coloured in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti Van at Indore and send the same to Bombay. He also told me that the payments of the same would be made at Bombay to the driver. I quoted a price of Rs.1,69,000/- per vehicle inclusive of registration and transport charges. I was having red colour Maruti Van brought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue colour Maruti Van brought from Vipul Motors, Faridabad, Haryana, in my stock. I had brought both the said vehicles by making advance payment. After receipt of booking from Shakil Hasham for red and blue coloured brand new Maruti Vans, I informed the details of the purchasers to M/s Bhatia Company and M/s Vipul Motors. After receipt of the said letters and bills from both the said companies in the name of purchasers who wanted red and blue Maruti Vans I sent papers of both the Vans for registration to RTO. The blue coloured Maruti Van was registered in the name of Kasam Ahmed at Ujjain RTO. The blue coloured Maruti Van could not be registered at Indore due to lack of E-Form necessary for registration. Thereafter, I sent both the said Vans to Bombay to Shakil Hasham. Shakil Hasham received the delivery and paid Rs.3,38,000/- to my drivers. My drivers gave the said amount to me. I made the necessary entries in my office record for sending the said Vans to Bombay to Shakil Hasham after purchasing the same for the parties told by him. The RTO Authority at Ujjain had given registration Number MP-13-D-0385 to blue coloured Maruti Van. Today I am not remembering the engine number and chassis number of the said Maruti Van.
Deposition of Shakeel Suleman Hasham (PW-366)
331.2 In his deposition, he deposed that he had asked PW-342 to arrange for two Maruti Vans (red and blue colour) in February, 1993. Both the vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain with the registration number MP-13-D-0385. PW-366 further deposed as under:
In the same month (February 1993) I had also arranged for one blue coloured and another red coloured Maruti Vans also registered at Madhya Pradesh for Suleman Lakdawala. The said vehicles were registered at Madhya Pradesh Indore in the name of the purchasers given to me by Suleman Lakdawala. I had given the work of registration to one Kailash baheti of Indore. Both the said vans were insured by Insurance Agent Rakesh Tiwari before giving the same to Suleman Lakdawala. Both the said vehicles had arrived from Indore. I had sent the same to the Petrol pump of Suleman and asked him to take the delivery from the said drivers who had brought the delivery of the said vehicles. Accordingly he took the delivery by making payment to the drivers.
331.3 It is relevant to note that this number and the said blue Maruti Van has been identified by PWs-5, 6 and 13 in their depositions as the vehicle which was involved in the said incident at Fishermens Colony. Thus, PW- 342, therefore, corroborates the deposition of PW-366 in that both the Vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain and was given registration number bearing MP-13-D-0385.
332. Further, the deposition of Mukhtar Ahmed (PW-281) reveals that the cavity was prepared by him in the said Maruti Van at the behest of Mohd. Shafi Jariwala (AA). This further corroborates the fact that it is the same vehicle which was used in the Mahim Causeway incident.
333. It is contended on behalf of the appellant that 3 eye witnesses viz., Ashok Vichare (PW-104), Harish Chandra Pawar (PW-105) and Rajaram Kadam (PW- 106) have deposed about the incident of training which took place at Sandheri but they have not identified the appellant and hence his participation in the training programme cannot be established. It is brought to our notice by the CBI that the confessions of the co-accused viz. A-13 and A-23, establish the involvement and participation of the appellant in the training programme. Even if the above witnesses have not identified that does not cause any dent on the prosecution case as sufficient evidence has been placed on record by the prosecution to establish the presence and participation of the appellant at Sandheri and Borghat.
Juvenile Issue:
334. It is contended on behalf of the appellant that he was 17 years and 3 months old on the date of commission of offence and his case ought to have been dealt under the Juvenile Justice (Care & Protection of Children) Act, 2000 (in short JJ Act) and the provisions of TADA are inapplicable to his case and the learned Designated Court erred in negating the said contention. Before dealing with this contention, it would be appropriate to first deal with the law on the subject:
Juvenile Justice (Care & Protection of Children) Act, 2000
Preamble:
An act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their need, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation.
334.1 Section 1 (4) of the JJ Act was brought into the statute book w.e.f. 22.08.2006 which reads as under:-
Notwithstanding anything contained in any other law for the time being in force, the provisions of this act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law
334.2 Section 2 (k) defines juvenile or child means a person who has not completed eighteen years of age.
334.3 Section 2 (l) defines juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence.
335. Section 15 deals with the Order that may be passed regarding juvenile which is as under:-
(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks, fit-
(g) make an order directing the juvenile to be sent to a special home-(before the amendment dated 22-8-2006)
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile
336. Section 16 deals with the order that may not be passed against Juvenile which is as under:-
(1) Not-withstanding anything to the contrary contained in any law for the time being in force no juvenile in conflict with law shall be sentenced to death (or life imprisonment) or committed to prison in default of payment of fine or in default of furnishing security:
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juveniles in a special home to send him to such special home and that none of the other measures provided under this act is suitable or sufficient, the board may order the juvenile in conflict with law to be kept in such safety and in such manner as it thinks fit and shall report the case for the order of the State Government.
xxxxx
337. Section 28 of the JJ Act deals with Alternative Punishment which is as under:-
Where an act or omission constitute an offence punishable under this act and also under any other Central or State act, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offences shall be liable to punishment only under such act as provides for punishment which is greater in degree.
In the same light if some of the provisions of the THE TERRORIST AND DISRUPTIVE ACTIVITIES ACT, 1987 may be considered which was also a special act to deal with extraordinary circumstances ‘An act to make special provisions for the prevention of, and for coping with terrorist and disruptive activities and for matters connected therewith or incidental thereto.’
338. Overriding Effect: Section 25 of TADA
The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this act or in any instrument having effect by virtue of any enactment other than this Act.
Whether Juvenile Justice Act, 2000 prevails over TADA Act, 1987:
TADA vs JJ ACT:
339. The question does arise as to whether the provisions of JJ Act as well as of TADA provide for over-riding effect on any other law for the time being in force; and as to whether the provisions of JJ Act would be applicable in case of TADA for the reason that this Court in Hari Ram v. State of Rajasthan & Anr., [JT 2009 (8) SC 47 : (2009) 13 SCC 211], considered the definition of juvenile given under Section 2 (k) & (l) for offences committed prior to 01.04.2001 when the JJ Act came into force and held that by virtue of the amendment introduced in Section 20 of the JJ Act, particularly, putting the proviso and explanation to Section 20 of the Act made explicit that in all pending cases including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the JJ Act would apply retrospectively as if the said provisions had been in force when the alleged offence was committed. More so, Section 7-A of the JJ Act made it clear that the issue of juvenile can be raised at any stage of the proceeding and even if the accused ceased to be juvenile on or before the commencement of the JJ Act. Thus, any person who was below 18 years of age on the date of commission of offence, even prior to 01.04.2001 would be treated as juvenile even if the claim of the juvenility is raised after attaining the age of 18 years on or before the commencement of the Act. The Court further held that in borderline cases, the benefit may be given to the accused as the very Scheme behind such legislation is rehabilitatory so as to prevent such offenders from becoming hardened criminals. Under such a statute, the court has responsibility to see that punishment serves social justice which is the validation of deprivation of citizens liberty. Correctional treatment with a rehabilitative orientation may be an imperative of modern penology. Such values may find their roots under Article 19 of the Constitution which itself sanctions deprivation of freedoms provided they render a reasonable service to social defence, public order and security of the State. The Court has categorically held that the JJ Act applies retrospectively and a person can apply even where the criminal proceedings have attained finality. The 1986 Act was subsequently repealed by Juvenile Justice (Care and Protection of Children) Act, 2000. On 22.03.2006, Section 2(1) of the Act was amended stating that Juvenile in conflict with law means juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. The Juvenile Justice (Care and Protection of Children) Rules 2007 (hereinafter referred to as 2000 Rules) were brought into force on 26th October 2007. As per Rule 97(2) all the cases pending which have not received finality will be dealt with and disposed of in terms of the provisions of the 2000 Act as amended on 22.08.2006 and 2007 Rules. This view stands approved and affirmed by a larger bench judgment on reference in Abuzar Hossain @ Gulam Hossain vs. State of West Bengal [ JT 2012 (10) SC 454 : (2012) 10 SCC 489.
340. Admittedly, the TADA Act 1985/1987 and JJ Act, 1986/2000, both contained provisions providing over-riding effect on any other law for the time being in force.
341. A statute must be interpreted having regard to the purport and object of the Act. The doctrine of purposive construction must be resorted to. It would not be permissible for the court to construe the provisions in such a manner which would destroy the very purpose for which the same was enacted. The principles in regard to the approach of the Court in interpreting the provisions of a statute with the change in the societal condition must also be borne in mind. The rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations. It is the duty of the court to adopt a harmonious construction by which both the provisions remain operative. (Vide: Cantonment Board, Mhow & Anr. v. M.P. State Road Transport Corpn., [JT 1997 (4) SC 561 : AIR 1997 SC 2013]; Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli & Ors., [JT 2007 (6) SC 264 : (2007) 6 SCC 81]; and Krishna Kumar Birla v. Rajendra Singh Lodha & Ors., [JT 2008 (4) SC 82 : (2008) 4 SCC 300)].
342. Where two statutes provide for overriding effect on the other law for the time being in force and the court has to examine which one of them must prevail, the court has to examine the issue considering the following two basic principles of statutory interpretation:
1. leges posteriores priores conterarias abrogant (later laws abrogate earlier contrary laws).
2. generalia specialibus non derogant (a general provision does not derogate from a special one.)
343. The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one. It means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one.
344. The basic rule that general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the competent authority, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions must be given effect to.
345. It is a settled legal proposition that while passing a special Act, the legislature devotes its entire consideration to a peculiar subject. Therefore, when a general Act is subsequently passed, it is logical to presume that the legislature has not repealed or modified the former special Act unless an inference may be drawn from the language of the special Act itself.
346. In order to determine whether a statute is special or general one, the court has to take into consideration the principal subject matter of the statute and the particular perspective for the reason that for certain purposes an Act may be general and for certain other purposes it may be special and such a distinction cannot be blurred.
347. Thus, where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature conveyed by the language of the relevant provisions therein. (Vide: Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd., [AIR 1956 SC 614]; J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh, [AIR 1960 SC 1170]: Kumaon Motor Owners’ Union Ltd. & Anr. v. State of Uttar Pradesh, [AIR 1966 SC 785]; Shri Sarwan Singh v. Shri Kasturi Lal, [(1977) 1 SCC 750]; The U.P. State Electricity Board v. Hari Shanker Jain & Ors, [(1978) 4 SCC 16]; The Life Insurance Corporation of India v. D.J. Bahadur, [AIR 1980 SC 2181]; Ashoka Marketing Ltd. and Anr. v. Punjab National Bank & Ors., [JT 1990 (3) SC 417 : AIR 1991 SC 855]; and T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., [JT 2002 (1) SC 486 : AIR 2003 SC 355].
348. In Punjab State Electricity Board v. Bassi Cold Storage, Khara and Anr., [JT 1994 (2) SC 628 : AIR 1994 SC 2544], the question was whether Arbitration would be applicable to all disputes under the Indian Electricity Act, 1910. This Court after considering the relevant provisions of the Act 1910 held:
If the legislature while putting the Act in the statute book would have required that all the disputes between the parties should be subject-matter of arbitration, there would have been no necessity to mention about some disputes or difference specifically in the aforesaid section as being remediable by arbitration. This clearly shows, according to us, that the legislature did require that the matters enumerated in the Act alone should go for arbitration, and no others.
(See also: Mohan Karan v. State of U.P. and Anr., [JT 1998 (2) SC 521].
349. In RBI v. Peerless General Finance and Investment Company Ltd., and Ors. [JT 1987 (1) SC 246 : (1987) 1 SCC 424], this Court highlighted the importance of the rule of contextual interpretation and held:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. .No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
350. In Employees Provident Fund Commr. v. Official Liquidator, [JT 2011 (13) SC 104 : AIR 2012 SC 11], the question arose as to whether priority given to the dues payable by an employer under Section 11 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, is subject to Section 529-A of the Companies Act, 1956 in terms of which the workmens dues and debts due to secured creditors are required to be paid in priority to all other debts in view of the non-obstante clause contained in the subsequent legislation, i.e. Section 529A(1) of the Companies Act would prevail over similar clause contained in earlier legislation, i.e. Section 11(2) of the EPF Act. The Court made reference to provisions of both enactments, and placing reliance on earlier judgment in UCO Bank v. Official Liquidator, High Court, Bombay & Anr. [JT 1994 (6) SC 350 : (1994) 5 SCC 1], A.P. State Financial Corpn. v. Official Liquidator, [JT 2000 (8) SC 587 : (2000) 7 SCC 291], Textile Labour Assn. and Anr. v. Official Liquidator and Another, [JT 2004 (Supp-1) SC 1 : (2004) 9 SCC 741]; Maharashtra State Coop. Bank Ltd. v. Assistant Provident Fund Commr. And Ors. [JT 2009 (13) SC 123 : (2009) 10 SCC 123]; observed:
The EPF Act is a social welfare legislation intended to protect the interest of a weaker section of the society i.e. the workers employed in factories and other establishments, who have made significant contribution in economic growth of the country. The workers and other employees provide services of different kinds and ensure continuous production of goods, which are made available to the society at large. Therefore, a legislation made for their benefit must receive a liberal and purposive interpretation keeping in view the directive principles of State policy contained in Articles 38 and 43 of the Constitution.
This Court held that the non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. The non-obstante clause must be given effect to, to the extent the legislature intended and not beyond the same.
351. In A.P. State Financial Corpn. (supra), this Court held that right to sell the property by Financial Corporation under Section 29 of the State Financial Corporations Act, 1951 will be subject to the non obstante clause contained in Section 529-A of the Companies Act and observed:
10. The Act of 1951 is a special Act for grant of financial assistance to industrial concerns with a view to boost up industrialisation and also recovery of such financial assistance if it becomes bad and similarly the Companies Act deals with companies including winding up of such companies. The proviso to sub-section (1) of Section 529 and Section 529-A being a subsequent enactment, the non obstante clause in Section 529-A prevails over Section 29 of the Act of 1951 in view of the settled position of law. We are, therefore, of the opinion that the above proviso to sub-section (1) of Section 529 and Section 529-A will control Section 29 of the Act of 1951. In other words the statutory right to sell the property under Section 29 of the Act of 1951 has to be exercised with the rights of pari passu charge to the workmen created by the proviso to Section 529 of the Companies Act. Under the proviso to sub-section (1) of Section 529, the liquidator shall be entitled to represent the workmen and force (sic enforce) the above pari passu charge. Therefore, the Company Court was fully justified in imposing the above conditions to enable the Official Liquidator to discharge his function properly under the supervision of the Company Court as the new Section 529-A of the Companies Act confers upon a Company Court the duty to ensure that the workmens dues are paid in priority to all other debts in accordance with the provisions of the above section. The legislature has amended the Companies Act in 1985 with a social purpose viz. to protect the dues of the workmen. If conditions are not imposed to protect the right of the workmen there is every possibility that the secured creditor may frustrate the above pari passu right of the workmen.
Child Rights:
352. The Geneva declaration of 1924 on the rights of the child adopted by the League of Nations on 26th September, 1924 provided that mankind owe to the child the best that it has to give, declare and accept it as their duty. Thus, the child must be given the means requisite for its normal development, both materially and spirituality. A hungry child must be fed and further recognised various child rights included that the delinquent child must be reclaimed.
353. The declaration of the right of the child adopted by the United Nations on 20th November, 1959, provides that the child by reason of his physical and mental immaturity needs special safeguards and care including his appropriate legal protection before as well as after birth.
354. The United Nations adopted Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) dated November 29, 1985. India is a signatory to the Declaration and effectively participated in bringing the Declaration into force.
355. The Rules guide the States to protect childrens rights and respect their needs during the development of separate and particular system of juvenile justice. It is also in favour of meeting the best interests of the child while conducting any proceedings before any authority. If children are processed through the criminal justice system, it results in the stigma of criminality and this in fact amplifies criminality of the child. The Rules say that depriving a child/juvenile of his liberty should be used as the last resort and that too, for the shortest period. These Rules direct the Juvenile Justice System to be fair and humane, emphasising the well- being of the child. Besides that, the importance of rehabilitation is also stressed demanding necessary assistance in the form of education, employment or shelter to be given to the child. The Juvenile Justice Act 1986 was enacted in pursuance of the Constitutional obligations cast under Article 39 clause (f) of the Constitution of India as well as of commitment to the aforesaid International Conventions. The Convention postulates that State Parties recognise that every child has the inherent right to life. State Parties shall ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.
356. Aims of juvenile justice provide that the juvenile Justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
357. The said Rules further lays down that restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; and deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response.
358. The Statement of Objects and Reasons of JJ Act reveal that the Act is in consonance with the provisions under Article 21 of the Constitution read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing the children or give opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and the childhood and youth are protected against exploitation and against moral and material abandonment.
359. The children if come in contact with hardened criminals in jail, it would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. (Vide: Sheela Barse & Anr. v. Union of India & Ors., [JT 1986 SC 136 : AIR 1986 SCC 1773], Gaurav Jain v. UOI and Ors., [JT 1997 (6) SC 305 : AIR 1997 SC 3021]; Arnit Das v. State of Bihar, [JT 2000 (6) SC 320 : AIR 2000 SC 2264]; and Pratap Singh v. State of Jharkhand and Anr., [JT 2005 (2) SC 271 : AIR 2005 SC 2731]
360. Therefore, there can be no doubt that the J & J Act is beneficial in nature i.e. socially oriented legislation. In case the provisions are not complied with, the object of its enactment would be frustrated.
361. Section 6 of JJ Act contains a non-obstante clause giving overriding effect to any other law for the time being in force and provides that Juvenile Justice Board, where it has been constituted, shall have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. Section 18(i) further provides that notwithstanding contained in Section 223 of the Code or any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. More so, non-obstante clause contained in various provisions thereof, particularly, Sections 15, 16, 18, 19 and 20 make the legislative intent unambiguous that the JJ Act being a special law would have override effect on any other statute for the time being in force. Such a view stand further fortified in view of the provisions of Sections 29 and 37 which provide for constitution of a Child Welfare Committee which provides for welfare of the children including rehabilitation.
362) Clause (n) of Section 2 of JJ Act defines `offence which means offence punishable under any law for the time being in force. So, it means that the said provision does not make any distinction between the offence punishable under IPC or punishable under any local or special law.
THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987:
363. The Terrorist and ‘Disruptive Activities (Prevention) Act, 1985, was enacted in May, 1985, in the background of escalation of terrorist activities in many parts of the country at that time. It was a temporary statute having a life of two years. However, on the basis of experience, it was felt that in order to combat and cope with terrorist and disruptive activities effectively, it was not only necessary to continue the said law but also to strengthen it further.
364. The TADA 1987 provides for a deterrent measures to deal with the menace of such serious offences like terrorism and disruptive activities and for matters connected therewith. Therefore, the object of the Act is to deal with the security of the State as well as the citizens.
365. Section 25 of TADA has a non-obstante clause providing for an overriding effect to the provisions over anything inconsistent therewith contained in any other enactment or any instrument having effect by virtue of any other enactment. Thus, TADA contains many other non-obstante clauses as well. The punishments provided by Sections 5 and 6 of TADA are to be imposed notwithstanding anything to the contrary in any other law. Section 7 enables the State to confer the power of arrest to certain persons. The Designated Court alone has the jurisdiction to try offences under TADA as revealed under Section 9. Further, Section 20 of TADA provides that irrespective of any provision of the Code or any other law, every offence punishable under the TADA would be deemed to be a cognizable offence.
366. Section 15 provides different special rules of evidence. Section 21 provides for presumption of guilt in specified circumstances and it carves out an exception to the general rule of criminal jurisprudence, though presumption is rebuttable. (Vide: Kartar Singh (supra) and Sanjay Dutt (II) (supra).
367. Sections 5 and 6 which are mandatory in nature provide for imposition of minimum sentence to achieve the objectives of the Act. Undoubtedly, TADA applies to deal with an extraordinary situation and problems and extreme measures to be resorted when it is not possible for the State to tackle the situation under the ordinary penal law. TADA provides for a special machinery to combat the growing menace of terrorism in the country specifically where accused cannot be checked and controlled under the ordinary law of the land. Disruptive activities have been defined in clause 2(b) as the Act deals to prevent the menace of terrorism. Terrorism means use of violence when its most important result is not merely the physical and mental damage to the victim but the prolonged physiological effect it produces or has the potentiality of producing on the society as a whole. Terrorism is generally an attempt to acquire or maintain power or controlled by intimidation and causing fear and helplessness in the minds of people at large or any section thereof and it is a totally abnormal phenomenon. Terrorism is distinguishable from other forms of violence as in the former, the deliberate and systematic use of coercive intimidation is used. (Vide: Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors., [JT 1994 (4) SC 225 : (1994) 4 SCC 602].
368. Disruptive activities have been defined under Section 4(2) which means activities to disturb or intended to disturb directly or indirectly the sovereignty and territorial integrity of India or to bring the cessation of any part of India from the Union.
369. Section 3 provides for punishment for terrorist acts and provides whoever with intention commits such acts shall be punishable. Section 3 provides for punishment for terrorist acts and its submissions started with whoever except clause 5 which starts with any person. Therefore, it covers every person including the juvenile. Section 4(1) provides for punishment for disruptive activities and also uses the same terminology i.e. whoever. Section 6 provides for enhanced punishments and refers to any person. Therefore, the phraseology used by legislature included every person whoever he may be.
370. There is no justification whatsoever to restrict the meaning of `any person and `whoever only to a major or non-juvenile as such an interpretation would have a potentiality to defeat the object of TADA.
371. Section 12(1) of the J & J Act 2000 which is analogous to Section 18(1) of the Act 1986 reads as under:
12. Bail of juvenile. – (l) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the ? time being in force, be released on bail with or without surety [or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person] but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
(Emphasis added)
372. Therefore, question does arise in case the JJ Act itself provides for an exception under which even bail may not be granted, we cannot accept the contention that JJ Act would over-ride the provisions of TADA in all circumstances without any exception and in case the legislature itself has carved out an exception not to grant relief to a juvenile under the JJ Act, it cannot be held that it would prevail over TADA under all possible circumstances.
373. Ends of justice has not been defined in any statute, however, this expression ends of justice has been used in the Constitution of India under Article 139-A(2) that the Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court. Article 142 of the Constitution empowers this Court to pass an order which may be necessary for doing complete justice in any case or matter pending. Section 151 of the Code of Civil Procedure 1908 confers unlimited inherent powers on the court to make such orders as may be necessary for the ends of justice. Section 482 of the Code confers inherent power upon the High Court to pass an order as may be necessary to secure the ends of justice. The words in Section 151 of CPC to secure the seems to be more powerful then the term to meet the ends of justice as the former is of unfathomable limits.
374. It has always been the subject matter of debate as what does the words the ends of justice mean, for the reason that it is one of those questions to which the resigned wisdom applies that man cannot find a definitive answer, but can only try to improve the question. (Vide: L. Vijay Kumar v. Public Prosecutor, A.P., [AIR 1978 SC 1485].
375. In Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Another, [JT 1996 (4) SC 679 : AIR 1996 SC 2005], this Court observed that it is advisable to leave the power undefined and uncataloged, so that it remains elastic enough to be moulded to suit the given situation.
376. While dealing with such an issue, the court must not lose sight of the fact that meaning of ends of justice essentially refers to justice to all the parties. This phrase refers to the best interest of the public within the four corners of the statute. In fact, it means preservation of proper balance between the Constitutional/Statutory rights of an individual and rights of the people at large to have the law enforced. The ends of justice does not mean vague and indeterminate notions of justice, but justice according to the law of the land. (Vide: State Bank of Patiala & Ors. v. S.K. Sharma, [JT 1996 (3) SC 722 : AIR 1996 SC 1669]; and Mahadev Govind Gharge & Ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, [JT 2011(6) SC 321 : (2011) 6 SCC 321].
377. Thus, the law has to be interpreted in such a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice.
378. Anti social operation of the appellants was not designed against any individual rather proved to be a security risk which imperiled a very large number of innocent persons and damage to the properties worth a very large amount.
379. Section 4(1) of JJ Act was added by amendment with effect from 22.08.2006. In fact, this provision gives the over-riding effect to this Act over other statutes. However, it reads that the Act would override anything contained in any other law for the time being in force. The question does arise as to whether the statutory provisions of JJ Act would have an over-riding effect over the provisions of TADA which left long back and was admittedly not in force on 22.8.2006. Thus, the question does arise as what is the meaning of the law for the time being in force. This Court has interpreted this phrase to include the law in existence on the date of commencement of the Act having over-riding effect and the law which may be enacted in future during the life of the Act having over-riding effect. (Vide: Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., [JT 1999 (8) SC 66 : AIR 1999 SC 3923]; and Management of M.C.D. v. Prem Chand Gupta & Anr., [JT 1999 (10) SC 12 : AIR 2000 SC 454].
380. Thus, we do not think that the JJ Act would have an over-riding effect on TADA which was not in existence on the date of commencement of the provisions of Section 1(4) of JJ Act.
381. TADA, being a special act, meant to curb the menace of terrorist and disruptive activities will have effect notwithstanding the fact that JJ Act is general and beneficial legislation. On perusal of aims and objects of TADA, it is clear that the act is brought into the statute books to deal with a special category of persons, viz., Terrorists.
382. In Madan Singh v. State of Bihar, [JT 2004 (4) SC 294 : (2004) 4 SCC 622], this Court upheld the convictions made by the Designated Court in respect of accused persons who had killed several police officers in combat. While affirming that the offence committed was rightly charged under Section 3 of TADA, this Court made detailed observations in respect of terrorist activities and held as follows:
19. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society. ‘Terrorism’ though has not been separately defined under TADA there is sufficient indication in Section 3 itself to identify what it is by an all inclusive and comprehensive phraseology adopted in engrafting the said provision, which serves the double purpose as a definition and punishing provision nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or ‘terrorise’ people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquility of the society and create a sense of fear and insecurity.
382.1 TADA, thus, being an act enacted for special purposes, as stated above, will have precedence over any other act.
383. Applying the above to the facts of the present case, it is clear that the appellant from his conduct referred to above cannot by any stretch of imagination qualify as a child in need of care and protection as the acts committed by him are so grave and heinous warranting the maximum penalty but the Designated Court after considering all these factors awarded him lesser punishment when the co-accused who accompanied him to Fishermens colony and committed similar acts were awarded with the maximum punishment for heinous acts committed by them along with co-accused.
Conclusion:
384. Thus, from the reading of the entire evidence placed by the prosecution, it is established beyond doubt that:
(i) The appellant took oath that he will take revenge against Hindus;
(ii) The appellant received training in handling of arms and explosives at Sandheri and Borghat;
(iii) He attended conspiratorial meeting at the residence of Babloo and Mobina;
(iv) He participated in filling of RDX and iron scraps in vehicles in the intervening night of 11/12.03.1993 at Al-Hussaini Building;
(v) He along with other co-accused lobbed hand-grenades at Mahim Fishermens colony;
(vi) He possessed 17 hand-grenades which were concealed in the over-head water tank of Room No. 27, Chawl No. 22, Transit Camp, Bandra (E), Bombay which were recovered at his instance.
384.1 Upon a reading of the entire evidence, we hold that all the charges framed against him stand proved beyond any doubt.
Sentence:
385. The appellant was given full opportunity to defend himself on the question of quantum of sentence. The appellant filed statement dated 07.12.2006 on the quantum of sentence which is Exhibit
3051. The appellant prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) His brothers were residing separately after marriage and his mother and two younger brothers were residing with him
(ii) At the time of his arrest, he was 17 years and 3 months old.
(iii) He was the sole bread winner of the family. He was working in a beef shop.
(iv) His father was 70 years old and also suffered with diabetes and high blood pressure.
(v) His mother was 60 years old.
(vi) He had been in custody for about 13 and a half years
(vii) He was from a poor family and they could not pay the heavy amount of fine
386. It is seen from the judgment that all the above said factors have been duly considered by the Designated Court while determining on the question of sentence. It was observed:
1215) Thus considering gruesome results likely to be ensued by commission of acts and in fact having ensued and still A-32, 36, 39 & 43 without any rhyme or justification or even without any sort of reason plausible or otherwise, committing such acts reveal that each of them was coveted member of conspiracy, of which members had become blind for working out heinous plans hatched by them i.e. the one in which there existed no regard to the life of any person, not even remotely connected with any of them. Needless to add that existence of such persons would be eminently dangerous for the society of law-abiding persons. It is difficult to perceive that such persons can be reformed by any type of punishment. However, as stated earlier having due regard to age of A-43 and the same to some extent denoting of there being some chance of reforming him necessary concession will be required to be given to him while awarding the sentence. Thus considering the gravity of acts committed by others i.e. A-32, 36 & 39 and still granting him only the sentence of life by ignoring that the acts committed by him has not transcended more than the results ensued due the grace of God and not because of themselves were not having such an intent; would amount to ignoring potential danger to the society from existence of such a person. Needless to add any amount of life sentence and/or fine would be too inadequate for punishing element of criminality entertained by such accused person and so also the same would be too inadequate to assure the society at large that the arms of law would be well protecting it. All the said factors clearly warrant levying of extreme penalty for such persons.
1216) At any rate, the aforesaid discussion being mainly for the offence of conspiracy and so also the commission of terrorist acts by them and during the same considering all the factors relevant to acts a conclusion has been flown that considering the repetition of commission of such acts by each of them, the same would warrant according extreme penalty as prescribed for relevant offence excepting for A-43 for whom the same will be required to be given on some what lower pedestal. However, still while awarding the sentence basic principle on which this court has so far progressed that awarding the same on the basis of criminality entertained by concerned accused while committing the act will be required to be borne in mind while prescribing punishment for every distinct offence committed by each of them. The same is necessary that as each of them had committed terrorist acts only one occasion i.e. lobbing hand grenades at Fishermen Colony. Hence the punishment would be required to be awarded for other offences committed by each of them on the same principles on which the same has been awarded to other accused. Since while sentencing the accused persons found guilty for offence under section 5 of TADA no sentence has been awarded to accused also found guilty for commission of offences under Arms Act for the same act, the same criteria will be required to be followed for A-43 who has been found guilty for commission for such offences.
387. All the materials placed show that the appellant has knowingly and willingly participated at various stages of the conspiracy. The appellant took training in handling of arms and ammunitions and explosives at Sandheri, attended conspiratorial meetings, kept hand grenades in his possession, actively participated in the preparation of vehicle bombs which were later planted at various locations resulting in the death of hundreds of people and injuries to many others and went to the Fishermens Colony at Mahim and threw hand grenades. Despite being fully aware of the conspiracy, the appellant proceeded to act by taking training, preparation of vehicle bombs and even throwing hand grenades in a populated place, thereby, furthering the object of such a heinous conspiracy.
388. In view of the above discussion, we confirm the conviction and sentence awarded by the Designated Court, consequently, the appeals are dismissed.