Mujib Sharif Parkar Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 207 of 2008
And
State of Maharashtra thr.C.B.I v. Mujib Sharif Parkar
Criminal Appeal No. 415 of 2011
Criminal Appeal No. 207 of 2008
And
State of Maharashtra thr.C.B.I v. Mujib Sharif Parkar
Criminal Appeal No. 415 of 2011
Criminal Appeal No. 207 of 2008
Petitioner: Mujib Sharif Parkar
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 207 of 2008
And
State of Maharashtra thr.C.B.I v. Mujib Sharif Parkar
Criminal Appeal No. 415 of 2011
Criminal Appeal No. 207 of 2008
And
State of Maharashtra thr.C.B.I v. Mujib Sharif Parkar
Criminal Appeal No. 415 of 2011
Criminal Appeal No. 207 of 2008
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Appellant A-131, son of A-17, who was close to Tiger Memon (AA) – Indulged in smuggling activities, transportation of contraband etc. – Appellant purchased gunny bags in fake name and helped in transportation of contraband, having full knowledge of its contents i.e. Ak-56 rifles, hand grenades arms etc. Held on facts it is established that gunny bag was used to carry arms and ammunition. Conviction under Section 3(3) of TADA fully justified.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Appellant A-131, son of A-17, who was close to Tiger Memon (AA) – Indulged in smuggling activities, transportation of contraband etc. – Appellant purchased gunny bags in fake name and helped in transportation of contraband, having full knowledge of its contents i.e. Ak-56 rifles, hand grenades arms etc. Held on facts it is established that gunny bag was used to carry arms and ammunition. Conviction under Section 3(3) of TADA fully justified.
Held:
It is evident that the appellant (A-131) was the son of Dadabhai (A-17) who was a close associate of Tiger Memon (AA) and indulged in smuggling activities and participated and facilitated in the landing and transportation of contraband. The appellant (A-131) had participated in purchasing the gunny bags as well as in transportation and had been fully aware of the contents therein as is evident from the deposition of Usman (PW.2). The appellant (A-131) knew that the gunny bags contained AK-56 rifles, hand-grenades, arms etc. The appellant (A- 131) purchased the gunny bags in the fake name of non-existing person twice. If all the evidence against him is read conjointly, the inference may be that the gunny bags were used to carry the arms which were smuggled to India and transported to Bombay. (Para 379)
A-131 had not transcended beyond the aforesaid acts having assisted and abetted Shekhadi landing and transportation operation and there was no other overt act and it was difficult to hold that he was involved in conspiracy. There was nothing to show that he committed any act furthering the object of conspiracy, beyond rendering assistance to the operation organized by his father alongwith other partners. The same made it extremely difficult to attribute knowledge of object of conspiracy to A-131. Therefore, he was given the benefit of doubt regarding the said charge and was held not guilty of conspiracy. (Para 385)
Cases Reffered:
Case Referred:
1. Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434] (Para 388)
1. Mrinal Das & Ors. v. State of Tripura [JT 2011 (14) SC 434] (Para 388)
JUDGEMENT:
Dr. B.S. Chauhan, J.
Criminal Appeal No. 207 of 2008
367. This appeal has been preferred against the impugned judgment and order dated 24.5.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1/1993, by which the appellant has been convicted under Sections 3(3) TADA and sentenced to 5 years rigorous imprisonment with a fine of Rs. 25,000/-, and in default to undergo further RI for six months.
368. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged in connection with the purchase of gunny bags for transportation of contraband landed at Shekhadi, for commission of the offence under Section 3(3) TADA during the period between December 1992 and March 1993. Thereby, having abetted knowingly and intentionally facilitated the commission of terrorist act and preparatory acts thereof. The facilitation and transportation of the contraband, arms and ammunition landed at Shekhadi between 8th/9th of February, 1993, which had been smuggled to India by Tiger Memon (AA) and his associates.
B. The appellant was convicted and sentenced as referred to hereinabove.
Hence, this appeal.
369. Ms. Farhana Shah, learned counsel for the appellant emphasised the fact that the identity of the appellant could not be discerned and this should create doubt in the mind of the court. Thus, the appellant was entitled for benefits of doubt. The appeal deserves to be allowed.
370. Shri Mukul Gupta, learned senior counsel for the state has submitted that the appellant purchased empty gunny bags which were later used to transport the contraband items in the territory of India. Therefore, the appellant was involved with Tiger Memon (AA). Thus, the appeal is liable to be dismissed.
371. We have heard learned counsel for the parties and perused the record.
372. Evidence against the appellant (A-131):
(a) Confessional statement of Sayyad Abdul Rehman Shaikh (A- 28)
(b) Deposition of Usman Jan Khan (PW.2)
(c) Deposition of Dileep Madhavji Katarmal (PW.284)
(d) Deposition of Jalil Sharif Kirkire (PW.285)
(e) Deposition of Ananth Shankar Rane (PW.286)
373. Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)
His confessional statement was recorded by Shri Sanjay Pandey, Deputy Commissioner of Police, on 23.4.1993. In his statement, he gave full details of smuggling, landing and his participation in smuggling activities even in February, 1993 with Tiger Memon (AA). He (A-28) revealed that it was 3 a.m., when Mujib (A-131) came to Mhasla where the witness was sleeping. Mujib (A-131) said that they have to go to said shop. On that very same night at about 3 Oclock, he (A-28) and the appellant (A-131) left for said shop by Yellow Mitsubishi and reached there at about 6 Oclock and from there they bought 1500 sacks from one Gujarati. From there on 10.3.1993 around 12-12.30 p.m., they went to Visawa hotel. After about one and half hours, Tiger Memon (AA) alongwith Yeda Yakub came there. Tiger Memon (AA) brought the appellant (A-131) with him to a hotel on Mahad Road. One white Mitsubishi was parked there. Tiger Memon said that many people were present there, so goods could not be shifted in another vehicle and thus, he asked them to go to Mahsla. In Mhasla after unloading the goods from white Mitsubishi, the rolls of sacks and goods were uploaded half-half in both the vehicles. Mujib (A- 131) got down there itself.
374. Statement of Usman Jan Khan (PW.2) – Approver – who was a co-accused in the instant case. His confessional statement was recorded in which he did not name the appellant (A-131) and did not involve the appellant in any overt act. However, he turned as an approver and he was examined as PW.2 wherein he deposed that he knew the notorious persons like Nasir Dakhla (A-64), Manoj Kumar @ Munna Bhavarlal Gupta as Munna (A-24), Riyaz Abu Bakar Khatri, Mujib Sharif Parkar as Dadabhais son (A-131) etc. He identified the appellant (A-131) in the court. While giving the details of landing at Shekhadi, he deposed that the witness participated in the landing and it took place at about 11 p.m., one boat came to the coast and contacted the party waiting for smuggled goods. Tiger Memon (AA) alongwith witness and 5-6 persons, namely, Yeda Yakub, Javed, Anwar, Shahid, Munna sat in the boat and went towards high sea for half an hour. The boat reached near the speed boat. Tiger Memon (AA) went over to the speed boat and after five minutes he passed over seven bags of military colour from the speed boat to them and came back to the boat. Then they left for the coast with the seven bags and on reaching the coast, Tiger Memon (AA) went to a hut on the coast with the seven bags. In the hut, Dadabhai (A-17), Dawood Taklya (A-14) and Dadabhais son (A-131) were present. Tiger Memon opened the seven bags with the help of these persons. The bags were containing AK-56 rifles, hand-grenades and pistols. The witness was given a pistol. Tiger Memon (AA) told them that within a short time goods like arms and Kala Sabun would be brought from the sea. Tiger Memon instructed them to attack any person who was an outsider and comes towards them. The goods came in boats. Villagers unloaded the goods from the boat and reloaded in a truck which was standing there. The villagers were persons of Dawood Taklya (A-14) and Dadabhai Parkar (A-17). After the goods were unloaded and reloaded in the truck, the villagers left the place. Then they proceeded towards Wangni Tower and reached there in about one and half hours. It was located in a lonely and deserted place. Tiger Memon got the goods unloaded from the truck and goods were kept in a room in Wangni Tower. On the instruction of Tiger Memon (AA), the packages were opened and seen to contain AK-56 rifles, hand-grenades, pistols, cartridges, magazines of AK-56 rifles and wires. The witness (PW.2) enquired from Javed about the wires and Kala Sabun. Tiger Memon (AA) told him that Kala Sabun was an explosive and the wires were detonators. Tiger then instructed them to put the rifles and other items in the cavities of the jeeps and in the tempo. The bags in which these items were brought were burnt by Dawood Taklya (A-14), Dadabhai Parkar (A-17) and his son (A-131) in the backyard on the instructions of Tiger Memon (AA). Tiger Memon (AA) instructed Dawood Taklya (A- 14) to conceal the boxes of Kala Sabun.
375. Deposition of Dileep Madhavji Katarmal (PW.284) – He was serving as a Manager in the firm which was carrying on the business of gunny bags etc. He gave description about two persons one old and one young who had come to his agency/shop for purchasing the sacks in the first part of February 1993, and they purchased the sacks vide bill Nos. 635 and 636 on 4.2.1993 and bill Nos. 650 and 651 on 10.2.1993 in the name of Dhanaji Sakharam Pawar. The witness produced the counterfoil of the said bills which were marked Exhibits 1139 and 1146. The said bills were in his handwriting and contained his signatures.
376. Deposition of Jalil Sharif Kirkire (PW.285) – He was the driver of the vehicle in which the sacks had been taken. He deposed that he had shifted the gunny bags and was paid a sum of Rs.475/- towards the hire charges. However, he did not identify any of the accused.
377. Deposition of Ananth Shankar Rane (PW.286) – He was an official of CBI and his deposition is only to the extent that he searched for Dhanaji Sakharam Pawar in whose name the bills had been issued for purchasing the gunny sacks but in vain.
378. The learned Special Judge appreciated the entire evidence particularly that of the confessional statement of Sayyed Abdul Rehman Kamruddin Sayed (A-28), depositions of Dileep Madhavji Katarmal (PW-284) and Jalil Sharif Kirkire (PW-285) and other witnesses and reached the conclusion that the respondent (A-131) was involved in landing and was present in arms training at Sandheri and was also involved in purchase of gunny bags. However, Sayyed Abdul Rehman Kamruddin Sayed (A-28) did not disclose the full name of accused (A-131), rather referred to as Muzib.
379. From the aforesaid evidence, it is evident that the appellant (A-131) was the son of Dadabhai (A-17) who was a close associate of Tiger Memon (AA) and indulged in smuggling activities and participated and facilitated in the landing and transportation of contraband. The appellant (A-131) had participated in purchasing the gunny bags as well as in transportation and had been fully aware of the contents therein as is evident from the deposition of Usman (PW.2). The appellant (A-131) knew that the gunny bags contained AK-56 rifles, hand-grenades, arms etc. The appellant (A- 131) purchased the gunny bags in the fake name of non-existing person twice. If all the evidence against him is read conjointly, the inference may be that the gunny bags were used to carry the arms which were smuggled to India and transported to Bombay.
380. In view of the above, conviction of the appellant under Section 3(3) TADA is justified. The appeal lacks merit and is accordingly dismissed.
***************
Criminal Appeal No. 207 of 2008
367. This appeal has been preferred against the impugned judgment and order dated 24.5.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1/1993, by which the appellant has been convicted under Sections 3(3) TADA and sentenced to 5 years rigorous imprisonment with a fine of Rs. 25,000/-, and in default to undergo further RI for six months.
368. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged in connection with the purchase of gunny bags for transportation of contraband landed at Shekhadi, for commission of the offence under Section 3(3) TADA during the period between December 1992 and March 1993. Thereby, having abetted knowingly and intentionally facilitated the commission of terrorist act and preparatory acts thereof. The facilitation and transportation of the contraband, arms and ammunition landed at Shekhadi between 8th/9th of February, 1993, which had been smuggled to India by Tiger Memon (AA) and his associates.
B. The appellant was convicted and sentenced as referred to hereinabove.
Hence, this appeal.
369. Ms. Farhana Shah, learned counsel for the appellant emphasised the fact that the identity of the appellant could not be discerned and this should create doubt in the mind of the court. Thus, the appellant was entitled for benefits of doubt. The appeal deserves to be allowed.
370. Shri Mukul Gupta, learned senior counsel for the state has submitted that the appellant purchased empty gunny bags which were later used to transport the contraband items in the territory of India. Therefore, the appellant was involved with Tiger Memon (AA). Thus, the appeal is liable to be dismissed.
371. We have heard learned counsel for the parties and perused the record.
372. Evidence against the appellant (A-131):
(a) Confessional statement of Sayyad Abdul Rehman Shaikh (A- 28)
(b) Deposition of Usman Jan Khan (PW.2)
(c) Deposition of Dileep Madhavji Katarmal (PW.284)
(d) Deposition of Jalil Sharif Kirkire (PW.285)
(e) Deposition of Ananth Shankar Rane (PW.286)
373. Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)
His confessional statement was recorded by Shri Sanjay Pandey, Deputy Commissioner of Police, on 23.4.1993. In his statement, he gave full details of smuggling, landing and his participation in smuggling activities even in February, 1993 with Tiger Memon (AA). He (A-28) revealed that it was 3 a.m., when Mujib (A-131) came to Mhasla where the witness was sleeping. Mujib (A-131) said that they have to go to said shop. On that very same night at about 3 Oclock, he (A-28) and the appellant (A-131) left for said shop by Yellow Mitsubishi and reached there at about 6 Oclock and from there they bought 1500 sacks from one Gujarati. From there on 10.3.1993 around 12-12.30 p.m., they went to Visawa hotel. After about one and half hours, Tiger Memon (AA) alongwith Yeda Yakub came there. Tiger Memon (AA) brought the appellant (A-131) with him to a hotel on Mahad Road. One white Mitsubishi was parked there. Tiger Memon said that many people were present there, so goods could not be shifted in another vehicle and thus, he asked them to go to Mahsla. In Mhasla after unloading the goods from white Mitsubishi, the rolls of sacks and goods were uploaded half-half in both the vehicles. Mujib (A- 131) got down there itself.
374. Statement of Usman Jan Khan (PW.2) – Approver – who was a co-accused in the instant case. His confessional statement was recorded in which he did not name the appellant (A-131) and did not involve the appellant in any overt act. However, he turned as an approver and he was examined as PW.2 wherein he deposed that he knew the notorious persons like Nasir Dakhla (A-64), Manoj Kumar @ Munna Bhavarlal Gupta as Munna (A-24), Riyaz Abu Bakar Khatri, Mujib Sharif Parkar as Dadabhais son (A-131) etc. He identified the appellant (A-131) in the court. While giving the details of landing at Shekhadi, he deposed that the witness participated in the landing and it took place at about 11 p.m., one boat came to the coast and contacted the party waiting for smuggled goods. Tiger Memon (AA) alongwith witness and 5-6 persons, namely, Yeda Yakub, Javed, Anwar, Shahid, Munna sat in the boat and went towards high sea for half an hour. The boat reached near the speed boat. Tiger Memon (AA) went over to the speed boat and after five minutes he passed over seven bags of military colour from the speed boat to them and came back to the boat. Then they left for the coast with the seven bags and on reaching the coast, Tiger Memon (AA) went to a hut on the coast with the seven bags. In the hut, Dadabhai (A-17), Dawood Taklya (A-14) and Dadabhais son (A-131) were present. Tiger Memon opened the seven bags with the help of these persons. The bags were containing AK-56 rifles, hand-grenades and pistols. The witness was given a pistol. Tiger Memon (AA) told them that within a short time goods like arms and Kala Sabun would be brought from the sea. Tiger Memon instructed them to attack any person who was an outsider and comes towards them. The goods came in boats. Villagers unloaded the goods from the boat and reloaded in a truck which was standing there. The villagers were persons of Dawood Taklya (A-14) and Dadabhai Parkar (A-17). After the goods were unloaded and reloaded in the truck, the villagers left the place. Then they proceeded towards Wangni Tower and reached there in about one and half hours. It was located in a lonely and deserted place. Tiger Memon got the goods unloaded from the truck and goods were kept in a room in Wangni Tower. On the instruction of Tiger Memon (AA), the packages were opened and seen to contain AK-56 rifles, hand-grenades, pistols, cartridges, magazines of AK-56 rifles and wires. The witness (PW.2) enquired from Javed about the wires and Kala Sabun. Tiger Memon (AA) told him that Kala Sabun was an explosive and the wires were detonators. Tiger then instructed them to put the rifles and other items in the cavities of the jeeps and in the tempo. The bags in which these items were brought were burnt by Dawood Taklya (A-14), Dadabhai Parkar (A-17) and his son (A-131) in the backyard on the instructions of Tiger Memon (AA). Tiger Memon (AA) instructed Dawood Taklya (A- 14) to conceal the boxes of Kala Sabun.
375. Deposition of Dileep Madhavji Katarmal (PW.284) – He was serving as a Manager in the firm which was carrying on the business of gunny bags etc. He gave description about two persons one old and one young who had come to his agency/shop for purchasing the sacks in the first part of February 1993, and they purchased the sacks vide bill Nos. 635 and 636 on 4.2.1993 and bill Nos. 650 and 651 on 10.2.1993 in the name of Dhanaji Sakharam Pawar. The witness produced the counterfoil of the said bills which were marked Exhibits 1139 and 1146. The said bills were in his handwriting and contained his signatures.
376. Deposition of Jalil Sharif Kirkire (PW.285) – He was the driver of the vehicle in which the sacks had been taken. He deposed that he had shifted the gunny bags and was paid a sum of Rs.475/- towards the hire charges. However, he did not identify any of the accused.
377. Deposition of Ananth Shankar Rane (PW.286) – He was an official of CBI and his deposition is only to the extent that he searched for Dhanaji Sakharam Pawar in whose name the bills had been issued for purchasing the gunny sacks but in vain.
378. The learned Special Judge appreciated the entire evidence particularly that of the confessional statement of Sayyed Abdul Rehman Kamruddin Sayed (A-28), depositions of Dileep Madhavji Katarmal (PW-284) and Jalil Sharif Kirkire (PW-285) and other witnesses and reached the conclusion that the respondent (A-131) was involved in landing and was present in arms training at Sandheri and was also involved in purchase of gunny bags. However, Sayyed Abdul Rehman Kamruddin Sayed (A-28) did not disclose the full name of accused (A-131), rather referred to as Muzib.
379. From the aforesaid evidence, it is evident that the appellant (A-131) was the son of Dadabhai (A-17) who was a close associate of Tiger Memon (AA) and indulged in smuggling activities and participated and facilitated in the landing and transportation of contraband. The appellant (A-131) had participated in purchasing the gunny bags as well as in transportation and had been fully aware of the contents therein as is evident from the deposition of Usman (PW.2). The appellant (A-131) knew that the gunny bags contained AK-56 rifles, hand-grenades, arms etc. The appellant (A- 131) purchased the gunny bags in the fake name of non-existing person twice. If all the evidence against him is read conjointly, the inference may be that the gunny bags were used to carry the arms which were smuggled to India and transported to Bombay.
380. In view of the above, conviction of the appellant under Section 3(3) TADA is justified. The appeal lacks merit and is accordingly dismissed.
***************
