Mulchand Sampatraj Shah Vs. The State of Maharashtra
EmailAppeal: Criminal Appeal No. 919 of 2008
Petitioner: Mulchand Sampatraj Shah
Respondent: The State of Maharashtra
Apeal: Criminal Appeal No. 919 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
Sections 3(2) 21(2) – Allegation of giving financial assistance to terrorists – Appellant having a business of bank draft discounting involving taking of amount from public, returning the same in installments, after deducting commission – Illegal banking business – Appellant having business relationship with T’M’ (AA) – Account opened with appellant in the name of Haathi – Nothing to show that appellant facilitated the financial transaction in the fake account Haathi – No reason for appellant to suspect T’M’ (AA) activity – T’M’ (AA) / Associates, prior to Bombay Bomb Blast were not accused of terrorist activities. Held, Section 21(2) is not attracted and conviction under Section 3(3) is set aside.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(2) 21(2) – Allegation of giving financial assistance to terrorists – Appellant having a business of bank draft discounting involving taking of amount from public, returning the same in installments, after deducting commission – Illegal banking business – Appellant having business relationship with T’M’ (AA) – Account opened with appellant in the name of Haathi – Nothing to show that appellant facilitated the financial transaction in the fake account Haathi – No reason for appellant to suspect T’M’ (AA) activity – T’M’ (AA) / Associates, prior to Bombay Bomb Blast were not accused of terrorist activities. Held, Section 21(2) is not attracted and conviction under Section 3(3) is set aside.
Sections 3(2) 21(2) – Financial assistance to terrorists – When provisions of Section 21(2) attracted. Held, when it is proved that the person is giving financial help to those who indulged in terrorist activities. Onus to prove is on prosecution. Presumption can be drawn only when it is proved that the person is giving financial help to a terrorist.
Held:
There is nothing on record to show that during the time the appellant facilitated the financial transaction of Tiger Memon in the fake account named `HATHI and that he had reason to suspect that Tiger Memon or his associates were indulging in disruptive activities, or had been accused in such activities. The appellant may be guilty of running and indulging in fraudulent banking activities, or may be violating of provisions of other statutes but cannot be held guilty of the offences under Section 3(3) TADA. (Para 198.1)
In the instant case, there is nothing on record to show that any person could imagine what Tiger Memon (AA) was planning. In fact it was only after 12.3.1993, the date of Bombay blast, that the provisions of TADA could be attracted as far as Tiger Memon (AA) is concerned. Thus, he (A-97) cannot be held to be guilty under the said provisions. (Para 199)
Therefore, we cannot agree with the order passed by the learned Designated Court so far as the appellant (A-97) is concerned. The appeal is therefore, allowed. (Para 202)
Thus, the provision of Section 21(2) can be resorted to, only in case it is proved by the prosecution that the accused rendered any financial assistance to a person who has already been facing the charge of terrorist or disruptive activities or he had reasons to suspect that the person to whom financial help has been rendered was indulging in such activities. Thus, there is a burden on the prosecution first to prove the aforesaid condition. In case, it is successfully proved that the person who render financial assistance to a person accused of terrorist/disruptive activities or suspect to be indulging in such activities, only then the presumption can be drawn. (Para 198)
JUDGEMENT:
Judgment (Contd.)
174. This appeal has been preferred against the judgment and order of conviction and sentence dated 6.6.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1 of 1993, by which the appellant had been convicted under Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) and awarded sentence of 5 years R.I. and fine of Rs.5 lakhs with suitable additional sentence of rigorous imprisonment in default of payment of fine.
175. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged under Section 3(3) TADA for facilitating and mobilising funds for the absconded accused Mushaq @ Ibrahim @ Tiger Memon Abdul Razak Memon (AA) and his associates by allowing him to operate his hawala account in the code name HATHI, and rendering financial assistance to him and his associates which greatly facilitated funding of their various operations in the commission of various acts i.e. serial bomb blasts.
B. After conclusion of the trial, the learned Designated Court convicted the appellant as referred to herein above.
Hence, this appeal.
176. Shri Mukul Rohatgi, Learned Senior Counsel appearing for the appellant, has submitted that the appellant stood convicted under Section 3(3) TADA for facilitation by providing financial assistance to the co-accused Tiger Memon (AA) in various activities. There is no evidence on record that the appellant had any knowledge that Tiger Memon had been indulging in terrorist activities. The Bombay blast took place on 12.3.1993 and a case under TADA had been registered against Tiger Memon and others only after the said incident. The appellant never came to know, nor had any material been placed before the Special Court in the instant case to show that Tiger Memon or any other co-accused in this case indulged in terrorist activities. Even in case the illegal banking business and dealing with money of smugglers and other type of criminals is admitted, the question does arise as to whether in such a fact-situation, the appellant could have been charged/convicted under Section 3(3) TADA. There is nothing in the confessional statement of the appellant that he had any knowledge that Tiger Memon indulged in any terrorist activity. It is evident from the record that the appellant was involved in acts subsequent to the date of commission of the blasts i.e. 12.3.93.
177. Shri Mukul Gupta, learned senior counsel arguing for the CBI has vehemently opposed the appeal and has submitted that the appellant (A-97) had been rendering financial assistance to Tiger Memon (AA), who was the kingpin of the entire episode which lead to not only the death of numerous innocent people, but also caused the destruction of moveable and immoveable property. The evidence on record makes it abundantly clear that the appellant (A-97) had been handling the financial accounts of Tiger Memon (AA). This amounts to financial assistance as per Section 3(3) TADA. Therefore, he abetted the terrorist activities undertaken by Tiger Memon (AA). Thus, the appeal deserves to be rejected.
178. We have considered rival submissions made by the learned counsel for the parties and perused the records.
179. Evidence against the appellant:
(a) Confessional statement of the appellant Mulchand Sampatraj Shah @ Chokshi (A-97)
(b) Confessional statement of Raju Laxmichand Jain @Raju Kodi (A-26)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Mohmed Rafiq Mianwala @ Rafiq Madi (A- 46)
(e) Confessional statement of Asgar Yusuf Mukadam (A-10)
180. Confession of the appellant Mulchand Sampatraj Shah @ Chokshi (A- 97):
From the confessional statement it has been revealed that the appellant was doing the business of bank draft discounting in the name and style of `Chokshi wherein the appellant used to take amount from the public, and to return the same in installments. At the time of returning the money he used to deduct the commission and, thus, he had been doing illegal banking business. He came in contact with Raju Laxmichand Jain @ Raju Kodi (A-26), who had the business in the market. The appellant also became acquainted with Mohammed Dossa and Tiger Memon (AA). He started the business of money taking and giving with both of them. He had some dispute in money transaction with them because of which he was beaten by them and the matter was settled after paying a sum of Rs.5 lakhs to them. The appellant was arrested in 1989 for violating the provisions of Foreign Exchange and Regulation Act, 1973 (hereinafter referred to as `FERA). His house was also raided by the Customs Department in 1989, and since they found some illegal accounts, he was also arrested. The appellant was again arrested in 1991 by the Central Bureau of Investigation (hereinafter referred to as `CBI) in connection with the hawala business with one Mr. Shambu Dayal who was doing hawala business between Bombay and Delhi, and he had furnished some information about the appellant to the department. He was arrested and remained in jail for 7 months. Subsequently, he was enlarged on bail. In the month of September, 1992 Tiger Memon (AA) told him on telephone that he was sending a huge amount of money through one Farid and the appellant would accept it and hand it over to Keshav Dalpat on getting the receipt. He received a sum of Rs.25 lakhs and the said amount was paid by the appellant to Keshav Dalpat. The said Keshav Dalpat was brought by Raju Kodi (A-26). After 10 days, Tiger Memon deposited a sum of Rs.21 lakhs with the appellant, which was to be given to Namji Dhagwan. In the last week of October 1992, Tiger Memon opened an account with the appellant in the name of HATHI. Raju Kodi (A-26) had deposited amounts varying from Rs. 5 lakhs to Rs. 1.89 Crores in the said account in November-December of 1992. Immediately, after recording the confessional statement of the appellant, his office was searched and various documents were seized dealing with the HATHI account. Various transactions were recorded totaling almost Rs. 1.9 Crores.
181. Confessional statement of Raju Kodi (A-26):
Raju Kodi (A-26) in his confessional statement admitted to his acquaintance with Mushtaq Abdul Razak Memon @ Tiger Memon (AA). In November 1992, as per the instructions of Tiger, A-26 deposited the various amounts in the HATHI account of Tiger maintained by the appellant (A-97) as Hawala transactions. The amounts varied from Rs. 16 Lakhs to Rs. 50 Lakhs in the month of November, 1992 and thus, the total amounted to Rs.181.48 lakh, in the HATHI account of Tiger.
182. Confessional statement of Abdul Gani Ismail Turk(A-11):
Abdul Gani Ismail Turk (A-11) in his confessional statement stated that he used to bring and deliver Hawala money, for which he was paid Rs. 5,000. So, he corroborated the prosecution case only to the extent that Tiger Memon (AA) had indulged in Hawala transactions. A-11 knew the persons, namely, Asgar, Imtiyaz, Rafiq Madi, Salim, Mustaq, Hanif etc.
183. Confessional statement of Mohmed Rafiq Musa Mianwala @ Rafiq Madi (A-46):
In his confessional statement A-46 has stated that A-97 had been a very close associate of Tiger Memon (AA) and in the month of February 1993, he went to Chokshi (A-19) at Javeri Bazar, and brought Rs. 4 lakhs from the appellant and gave this sum to Yakub at his office.
184. Confessional statement of Asgar Yusuf Mukadam (A-10):
In his confessional statement he has stated that Tiger used to deposit hawala money in the HATHI account with Chokshi (A-97) and he would withdraw some amount of money as and when required. Tiger had further told him at the time of his departure that if Yakub required money, it was to be given from the same account. On 9.2.1993, Yakub asked him to transfer Rs. 25 Lakhs to Iranis account, and Rs. 10 Lakhs to Ohalias account which was accordingly done by the accused (A- 10).
185. The confession made by the appellant (A-97) stood corroborated by the confessional statements of accused Asgar Yusuf Mukadam (A-10), Raju Laxmichand Jain @ Raju Kodi (A-26) and Mohmad Rafiq Miyariwala (A- 46) to the extent that the appellant was doing the hawala business, and had been receiving the money of various persons including Tiger Memon (AA).
186. Legal provisions involved in the case are :
I. Section 3(3) TADA reads as under:
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
II. Section 2(1)(a)(iii) TADA defines the abetment which involved:
(iii) the rendering of any assistance, whether financial or otherwise, to terrorists or disruptionists.
III. Section 21(2) TADA provides for a presumption which reads as under:
(2) In a prosecution for an offence under sub-section (3) of Section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that sub-section.
IV. Abetment and harbouring of offenders is also an offence under TADA and various other statutes like NDPS Act, 1985, POTA, 2002 and MCOCA, 1999.
187. All these statutes also provide that raising funds for terrorist organisations is illegal and such activities are punishable. However, the general principle is that a person so involved must be found rendering financial assistance to the accused of terrorist/disruptive activities, or could be reasonably suspected in indulging in such activities. Hawala business is done only on the basis of commission by exchanging money among persons and receiving commission. The appellant (A-97) had been working as a carrier or agent, between the persons indulging in money transactions in India or abroad, without having any knowledge whatsoever, that Tiger Memon or his associates or any other co-accused were indulging in terrorist activities. In the instant case, there is nothing on record to show that the appellant (A -97) indulged in such activities though he might be involved in other illegal activities.
188. The learned Designated Court recorded the finding as under:
Thus considering the nature of gravity of act committed by A-97 it will be difficult to accept the submission that the highest punishment as prescribed for the offence should be awarded to him.. It can be further added that no evidence has surfaced denoting A-97 having assisted, abetted in any manner any other act or offences committed by Tiger Memon.
189. In Kalpnath Rai v. State (supra), this Court held:
If Section 3(4) is understood as imposing harsh punishment on a person who gives shelter to a terrorist without knowing that he was a terrorist, such an understanding would lead to calamitous consequences. Many an innocent person, habituated to offer hospitality to friends and relatives or disposed to zeal of charity, giving accommodation and shelter to others without knowing that their guests were involved in terrorist acts, would then be exposed to incarceration for a long period.
190. Similarly in Kartar Singh v. State of Punjab, [JT 1994 (2) SC 423 : (1994) 3 SCC 569], this Court held:
133. Therefore, in order to remove the anomaly in the vague and imprecise definition of the word, abet, we for the above mentioned reasons, are of the view that the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.
134. To encapsulate, for the discussion above, the expressions communication and association deployed in the definition should be qualified so as to save the definition, in the sense that actual knowledge or reason to believe on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning the communication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists so that the object and purpose of that clause may not otherwise be defeated and frustrated.
Section 3 of Special Courts Act, 1984
135. Challenging the validity of Section 3 of Act of 1984, it has been contended that the power vested under Section 3(1) on the Central Government to declare by notification any area as terrorist affected area, and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit, is not only vague but also without any guidance.
136. The prerequisite conditions which are sine qua non for declaring any area as terrorists affected area by the Central Government by virtue of the authority conferred on it under Section 3(1) of the Act of 1984 are:
(1) The offences of the nature committed in any area to be declared as terrorists affected area should be one or more specified in the Schedule;
(2) The offences being committed by terrorists should satisfy the definition of the nature of the offence mentioned in Section 2(1)(h), namely, indulging in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to commit any of the offences enumerated under any of the clauses (i) to (iv) indicated under the definition of the word terrorist;
(3) The scheduled offences committed by terrorists should be on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act.
137. Unless all the above three conditions are fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as terrorist affected area. In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited.
191. In view of the above, the law requires that an accused under TADA must abate knowingly the commission of terrorist act and/or he must be rendering financial assistance to such an accused, or could be reasonably suspected of being such accused. Therefore, the question does arise as to whether the appellant had any reason to believe that Tiger Memon and his associates were accused of any terrorist act, or could be reasonably suspected to be such accused.
192. Immediately after the arrest of appellant (A-97), he apprehended that he would be forced to make a confession. Therefore, a large number of letters had been sent to Mr. V.B. Lokhande, DCP, which he had received prior to recording of the confessional statement. This is evident from the letter dated 16.5.1993 written by the counsel of the appellant requesting V.B. Lokhande not to record his confessional statement because the appellant did not want to make any such statement.
193. In the cross-examination of Shri V.B. Lokhande, DCP (PW-183) admitted that he had received letters and telegraphs particularly in reply to question nos. 123, 124. Further, while replying to question no. 125 he stated that he had not made any attempt to ask the appellant before recording his confessional statement whether he (A- 97) wanted to make a confessional statement.
194. It is further submitted that confessional statement had been obtained by coercion i.e. beating the appellant. There is ample evidence on record that he had a large number of injuries upon his body at the relevant time. He made a complaint in writing to the court, and the court issued certain directions for his treatment and asked for the report. The confessional statement was recorded on 18.5.1993. He was produced for the first time before the court on 25.5.1993 when the complaint was lodged, and the injury report was given. The report gave the details of various injuries on his buttocks, wrist and lower leg.
195. In this respect, the court passed certain orders which read as under:
25.5.1993 : Accused Mulchand Shah is not produced before this court till 4 p.m. as the CMC on duty has referred the accused Mulchand Shah to senior doctor for second opinion.. 26.5.1993: ..Accused Mulchand Shah produced before the court, the police is seeking further custody of the accused for the purpose of investigation. The accused has produced before the court on 25.5.1993 and he made a grievance that he was assaulted while in police custody. The accused was sent for medical report from G.T. Hospital does support his allegations. Further police custody of the accused would have definitely help the investigating agency but, the investigation agency having assaulted to third degree method, it will not be safe to remand the accused to their custody instead the investigating agency can interrogate the accused in jail.. .The accused is remanded to judicial custody till 22.6.1993.
196. In this respect, a large number of documents had been placed on record to show that complete information regarding the torture had been placed before the court by the counsel. From the relevant part of the letter dated 20.5.1993 written by Shri Pervez M. Rustomkhan, Advocate, to Mr. Pharande, Inspector of Police (Worli), Crawford Market, Bombay, it is clear that not only had the appellant been beaten but his family members had also been beaten and harassed. Even his brother Ramesh Kumar, a handicapped man, had not been spared. These incidents took place on 12.4.1993, 14.4.1993, 15.4.1993, 16.4.1993, 17.4.1993, 21.4.1993, 22.4.1993, 5.5.1993 and 8.5.1993. It was also mentioned in that letter that the appellant had falsely been implicated in the case and had been tortured and forced to sign some writings under duress and pressure from the police authorities which may be used against him.
197. In Sahib Singh v. State of Haryana, [JT 1997 (7) SC 42 : (1997) 7 SCC 231], this Court held that `Confession means:
39. The Evidence Act contains a separate part dealing with Admission. This part comprises Sections 17 to 31. Confession which is known as a species of Admission is to be found contained in Sections 24 to 30.
41. In view of these decisions, it is now certain that a confession must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence. 42. Section 24 provides, though in the negative form, that confession can be treated as relevant against the person making the confession unless it appears to the court that it is rendered irrelevant on account of any of the factors, namely, threat, inducements, promises etc. mentioned therein. Whether the confession attracts the frown of Section 24 has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise from a person in authority would operate in his mind. (See: Satbir Singh v. State of Punjab, (1977) 2 SCC 302.) The confession has to be affirmatively proved to be free and voluntary. (See: Hem Raj Devilal v. State of Ajmer, (1977) 2 SCC 263) Before a conviction can be based on confession, it has to be shown that it was truthful.
46. The Act, like the Evidence Act, does not define confession and, therefore, the principles enunciated by this Court with regard to the meaning of confession under the Evidence Act shall also apply to a confession made under this Act. Under this Act also, confession has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on confession is based on the maxim habemus optimum testem, confitentem reum which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.
52. The confessional statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the confessional statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone to the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The confessional statement is not truthful and is part of the hallucination with which the prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.
198. The only question is, whether the provisions of Section 21(2) provides that in a prosecution for an offence under sub-section (3) of Section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume unless the contrary is proved, that such person has committed the offence under that sub-section. Thus, the provision of Section 21(2) can be resorted to, only in case it is proved by the prosecution that the accused rendered any financial assistance to a person who has already been facing the charge of terrorist or disruptive activities or he had reasons to suspect that the person to whom financial help has been rendered was indulging in such activities. Thus, there is a burden on the prosecution first to prove the aforesaid condition. In case, it is successfully proved that the person who render financial assistance to a person accused of terrorist/disruptive activities or suspect to be indulging in such activities, only then the presumption can be drawn.
198.1. In such a situation, it is not possible for us to accept the submission of Mr. Mukul Gupta, learned senior counsel appearing for the respondent, that even if a person has rendered financial assistance prior to or during a part proceeding, to the parties indulged in such activities, the provision of Section 21(2) would be attracted. On a literal interpretation of the provision such a construction is not permissible. There is nothing on record to show that during the time the appellant facilitated the financial transaction of Tiger Memon in the fake account named `HATHI and that he had reason to suspect that Tiger Memon or his associates were indulging in disruptive activities, or had been accused in such activities. The appellant may be guilty of running and indulging in fraudulent banking activities, or may be violating of provisions of other statutes but cannot be held guilty of the offences under Section 3(3) TADA.
199. In the instant case, there is nothing on record to show that any person could imagine what Tiger Memon (AA) was planning. In fact it was only after 12.3.1993, the date of Bombay blast, that the provisions of TADA could be attracted as far as Tiger Memon (AA) is concerned. Thus, he (A-97) cannot be held to be guilty under the said provisions. There is nothing on record on the basis of which an inference can be drawn, that the appellant (A-97) could reasonably suspect indulgence of Tiger Memon (AA) in terrorist or disruptive activities.
200. Section 2(1)(a)(iii) TADA provides that abet, with its variations and cognate expressions, includes rendering of any assistance whether financial of otherwise, to terrorists or disruptionists.
201. The learned Designated Court after appreciating all the evidence on record came to the conclusion that the phrase `financial assistance should not be given a restricted meaning, to include only assistance given by the concerned accused from his own money. The learned court went on to state that even allowing a terrorist to circulate his money should come within the ambit of that phrase, through an illegal account as maintained for Tiger Memon (AA) by Sampatraj (A-97).
202. In the case at hand, as it cannot be held even by stretch of imagination that Tiger Memon (AA) and his associates had been accused of such activities prior to 12.3.1993, or could reasonably be suspected of being indulged in such activities, the provisions of TADA are not attracted so far as the appellant is concerned. Therefore, we cannot agree with the order passed by the learned Designated Court so far as the appellant (A-97) is concerned. The appeal is therefore, allowed. The conviction and sentence awarded by the Designated Court are set aside. The appellant is on bail. His bail bonds stand discharged.
*************
174. This appeal has been preferred against the judgment and order of conviction and sentence dated 6.6.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1 of 1993, by which the appellant had been convicted under Section 3(3) of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) and awarded sentence of 5 years R.I. and fine of Rs.5 lakhs with suitable additional sentence of rigorous imprisonment in default of payment of fine.
175. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged under Section 3(3) TADA for facilitating and mobilising funds for the absconded accused Mushaq @ Ibrahim @ Tiger Memon Abdul Razak Memon (AA) and his associates by allowing him to operate his hawala account in the code name HATHI, and rendering financial assistance to him and his associates which greatly facilitated funding of their various operations in the commission of various acts i.e. serial bomb blasts.
B. After conclusion of the trial, the learned Designated Court convicted the appellant as referred to herein above.
Hence, this appeal.
176. Shri Mukul Rohatgi, Learned Senior Counsel appearing for the appellant, has submitted that the appellant stood convicted under Section 3(3) TADA for facilitation by providing financial assistance to the co-accused Tiger Memon (AA) in various activities. There is no evidence on record that the appellant had any knowledge that Tiger Memon had been indulging in terrorist activities. The Bombay blast took place on 12.3.1993 and a case under TADA had been registered against Tiger Memon and others only after the said incident. The appellant never came to know, nor had any material been placed before the Special Court in the instant case to show that Tiger Memon or any other co-accused in this case indulged in terrorist activities. Even in case the illegal banking business and dealing with money of smugglers and other type of criminals is admitted, the question does arise as to whether in such a fact-situation, the appellant could have been charged/convicted under Section 3(3) TADA. There is nothing in the confessional statement of the appellant that he had any knowledge that Tiger Memon indulged in any terrorist activity. It is evident from the record that the appellant was involved in acts subsequent to the date of commission of the blasts i.e. 12.3.93.
177. Shri Mukul Gupta, learned senior counsel arguing for the CBI has vehemently opposed the appeal and has submitted that the appellant (A-97) had been rendering financial assistance to Tiger Memon (AA), who was the kingpin of the entire episode which lead to not only the death of numerous innocent people, but also caused the destruction of moveable and immoveable property. The evidence on record makes it abundantly clear that the appellant (A-97) had been handling the financial accounts of Tiger Memon (AA). This amounts to financial assistance as per Section 3(3) TADA. Therefore, he abetted the terrorist activities undertaken by Tiger Memon (AA). Thus, the appeal deserves to be rejected.
178. We have considered rival submissions made by the learned counsel for the parties and perused the records.
179. Evidence against the appellant:
(a) Confessional statement of the appellant Mulchand Sampatraj Shah @ Chokshi (A-97)
(b) Confessional statement of Raju Laxmichand Jain @Raju Kodi (A-26)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Mohmed Rafiq Mianwala @ Rafiq Madi (A- 46)
(e) Confessional statement of Asgar Yusuf Mukadam (A-10)
180. Confession of the appellant Mulchand Sampatraj Shah @ Chokshi (A- 97):
From the confessional statement it has been revealed that the appellant was doing the business of bank draft discounting in the name and style of `Chokshi wherein the appellant used to take amount from the public, and to return the same in installments. At the time of returning the money he used to deduct the commission and, thus, he had been doing illegal banking business. He came in contact with Raju Laxmichand Jain @ Raju Kodi (A-26), who had the business in the market. The appellant also became acquainted with Mohammed Dossa and Tiger Memon (AA). He started the business of money taking and giving with both of them. He had some dispute in money transaction with them because of which he was beaten by them and the matter was settled after paying a sum of Rs.5 lakhs to them. The appellant was arrested in 1989 for violating the provisions of Foreign Exchange and Regulation Act, 1973 (hereinafter referred to as `FERA). His house was also raided by the Customs Department in 1989, and since they found some illegal accounts, he was also arrested. The appellant was again arrested in 1991 by the Central Bureau of Investigation (hereinafter referred to as `CBI) in connection with the hawala business with one Mr. Shambu Dayal who was doing hawala business between Bombay and Delhi, and he had furnished some information about the appellant to the department. He was arrested and remained in jail for 7 months. Subsequently, he was enlarged on bail. In the month of September, 1992 Tiger Memon (AA) told him on telephone that he was sending a huge amount of money through one Farid and the appellant would accept it and hand it over to Keshav Dalpat on getting the receipt. He received a sum of Rs.25 lakhs and the said amount was paid by the appellant to Keshav Dalpat. The said Keshav Dalpat was brought by Raju Kodi (A-26). After 10 days, Tiger Memon deposited a sum of Rs.21 lakhs with the appellant, which was to be given to Namji Dhagwan. In the last week of October 1992, Tiger Memon opened an account with the appellant in the name of HATHI. Raju Kodi (A-26) had deposited amounts varying from Rs. 5 lakhs to Rs. 1.89 Crores in the said account in November-December of 1992. Immediately, after recording the confessional statement of the appellant, his office was searched and various documents were seized dealing with the HATHI account. Various transactions were recorded totaling almost Rs. 1.9 Crores.
181. Confessional statement of Raju Kodi (A-26):
Raju Kodi (A-26) in his confessional statement admitted to his acquaintance with Mushtaq Abdul Razak Memon @ Tiger Memon (AA). In November 1992, as per the instructions of Tiger, A-26 deposited the various amounts in the HATHI account of Tiger maintained by the appellant (A-97) as Hawala transactions. The amounts varied from Rs. 16 Lakhs to Rs. 50 Lakhs in the month of November, 1992 and thus, the total amounted to Rs.181.48 lakh, in the HATHI account of Tiger.
182. Confessional statement of Abdul Gani Ismail Turk(A-11):
Abdul Gani Ismail Turk (A-11) in his confessional statement stated that he used to bring and deliver Hawala money, for which he was paid Rs. 5,000. So, he corroborated the prosecution case only to the extent that Tiger Memon (AA) had indulged in Hawala transactions. A-11 knew the persons, namely, Asgar, Imtiyaz, Rafiq Madi, Salim, Mustaq, Hanif etc.
183. Confessional statement of Mohmed Rafiq Musa Mianwala @ Rafiq Madi (A-46):
In his confessional statement A-46 has stated that A-97 had been a very close associate of Tiger Memon (AA) and in the month of February 1993, he went to Chokshi (A-19) at Javeri Bazar, and brought Rs. 4 lakhs from the appellant and gave this sum to Yakub at his office.
184. Confessional statement of Asgar Yusuf Mukadam (A-10):
In his confessional statement he has stated that Tiger used to deposit hawala money in the HATHI account with Chokshi (A-97) and he would withdraw some amount of money as and when required. Tiger had further told him at the time of his departure that if Yakub required money, it was to be given from the same account. On 9.2.1993, Yakub asked him to transfer Rs. 25 Lakhs to Iranis account, and Rs. 10 Lakhs to Ohalias account which was accordingly done by the accused (A- 10).
185. The confession made by the appellant (A-97) stood corroborated by the confessional statements of accused Asgar Yusuf Mukadam (A-10), Raju Laxmichand Jain @ Raju Kodi (A-26) and Mohmad Rafiq Miyariwala (A- 46) to the extent that the appellant was doing the hawala business, and had been receiving the money of various persons including Tiger Memon (AA).
186. Legal provisions involved in the case are :
I. Section 3(3) TADA reads as under:
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
II. Section 2(1)(a)(iii) TADA defines the abetment which involved:
(iii) the rendering of any assistance, whether financial or otherwise, to terrorists or disruptionists.
III. Section 21(2) TADA provides for a presumption which reads as under:
(2) In a prosecution for an offence under sub-section (3) of Section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that sub-section.
IV. Abetment and harbouring of offenders is also an offence under TADA and various other statutes like NDPS Act, 1985, POTA, 2002 and MCOCA, 1999.
187. All these statutes also provide that raising funds for terrorist organisations is illegal and such activities are punishable. However, the general principle is that a person so involved must be found rendering financial assistance to the accused of terrorist/disruptive activities, or could be reasonably suspected in indulging in such activities. Hawala business is done only on the basis of commission by exchanging money among persons and receiving commission. The appellant (A-97) had been working as a carrier or agent, between the persons indulging in money transactions in India or abroad, without having any knowledge whatsoever, that Tiger Memon or his associates or any other co-accused were indulging in terrorist activities. In the instant case, there is nothing on record to show that the appellant (A -97) indulged in such activities though he might be involved in other illegal activities.
188. The learned Designated Court recorded the finding as under:
Thus considering the nature of gravity of act committed by A-97 it will be difficult to accept the submission that the highest punishment as prescribed for the offence should be awarded to him.. It can be further added that no evidence has surfaced denoting A-97 having assisted, abetted in any manner any other act or offences committed by Tiger Memon.
189. In Kalpnath Rai v. State (supra), this Court held:
If Section 3(4) is understood as imposing harsh punishment on a person who gives shelter to a terrorist without knowing that he was a terrorist, such an understanding would lead to calamitous consequences. Many an innocent person, habituated to offer hospitality to friends and relatives or disposed to zeal of charity, giving accommodation and shelter to others without knowing that their guests were involved in terrorist acts, would then be exposed to incarceration for a long period.
190. Similarly in Kartar Singh v. State of Punjab, [JT 1994 (2) SC 423 : (1994) 3 SCC 569], this Court held:
133. Therefore, in order to remove the anomaly in the vague and imprecise definition of the word, abet, we for the above mentioned reasons, are of the view that the person who is indicted of communicating or associating with any person or class of persons who is engaged in assisting in any manner terrorists or disruptionists should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists.
134. To encapsulate, for the discussion above, the expressions communication and association deployed in the definition should be qualified so as to save the definition, in the sense that actual knowledge or reason to believe on the part of a person to be roped in with the aid of that definition should be read into it instead of reading it down and clause (i) of the definition 2(1)(a) should be read as meaning the communication or association with any person or class of persons with the actual knowledge or having reason to believe that such person or class of persons is engaged in assisting in any manner terrorists or disruptionists so that the object and purpose of that clause may not otherwise be defeated and frustrated.
Section 3 of Special Courts Act, 1984
135. Challenging the validity of Section 3 of Act of 1984, it has been contended that the power vested under Section 3(1) on the Central Government to declare by notification any area as terrorist affected area, and constitute such area into a single judicial zone or into as many judicial zones as it may deem fit, is not only vague but also without any guidance.
136. The prerequisite conditions which are sine qua non for declaring any area as terrorists affected area by the Central Government by virtue of the authority conferred on it under Section 3(1) of the Act of 1984 are:
(1) The offences of the nature committed in any area to be declared as terrorists affected area should be one or more specified in the Schedule;
(2) The offences being committed by terrorists should satisfy the definition of the nature of the offence mentioned in Section 2(1)(h), namely, indulging in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to commit any of the offences enumerated under any of the clauses (i) to (iv) indicated under the definition of the word terrorist;
(3) The scheduled offences committed by terrorists should be on such a scale and in such a manner that it is expedient for the purpose of coping with the activities of such terrorists to have recourse to the provisions of this Act.
137. Unless all the above three conditions are fully satisfied, the Central Government cannot invoke the power under Section 3(1) to declare any area as terrorist affected area. In other words, in the absence of any of the conditions, Section 3(1) cannot be invoked. Therefore, the contention that Section 3(1) suffers from vagueness and lacks guidance is unmerited.
191. In view of the above, the law requires that an accused under TADA must abate knowingly the commission of terrorist act and/or he must be rendering financial assistance to such an accused, or could be reasonably suspected of being such accused. Therefore, the question does arise as to whether the appellant had any reason to believe that Tiger Memon and his associates were accused of any terrorist act, or could be reasonably suspected to be such accused.
192. Immediately after the arrest of appellant (A-97), he apprehended that he would be forced to make a confession. Therefore, a large number of letters had been sent to Mr. V.B. Lokhande, DCP, which he had received prior to recording of the confessional statement. This is evident from the letter dated 16.5.1993 written by the counsel of the appellant requesting V.B. Lokhande not to record his confessional statement because the appellant did not want to make any such statement.
193. In the cross-examination of Shri V.B. Lokhande, DCP (PW-183) admitted that he had received letters and telegraphs particularly in reply to question nos. 123, 124. Further, while replying to question no. 125 he stated that he had not made any attempt to ask the appellant before recording his confessional statement whether he (A- 97) wanted to make a confessional statement.
194. It is further submitted that confessional statement had been obtained by coercion i.e. beating the appellant. There is ample evidence on record that he had a large number of injuries upon his body at the relevant time. He made a complaint in writing to the court, and the court issued certain directions for his treatment and asked for the report. The confessional statement was recorded on 18.5.1993. He was produced for the first time before the court on 25.5.1993 when the complaint was lodged, and the injury report was given. The report gave the details of various injuries on his buttocks, wrist and lower leg.
195. In this respect, the court passed certain orders which read as under:
25.5.1993 : Accused Mulchand Shah is not produced before this court till 4 p.m. as the CMC on duty has referred the accused Mulchand Shah to senior doctor for second opinion.. 26.5.1993: ..Accused Mulchand Shah produced before the court, the police is seeking further custody of the accused for the purpose of investigation. The accused has produced before the court on 25.5.1993 and he made a grievance that he was assaulted while in police custody. The accused was sent for medical report from G.T. Hospital does support his allegations. Further police custody of the accused would have definitely help the investigating agency but, the investigation agency having assaulted to third degree method, it will not be safe to remand the accused to their custody instead the investigating agency can interrogate the accused in jail.. .The accused is remanded to judicial custody till 22.6.1993.
196. In this respect, a large number of documents had been placed on record to show that complete information regarding the torture had been placed before the court by the counsel. From the relevant part of the letter dated 20.5.1993 written by Shri Pervez M. Rustomkhan, Advocate, to Mr. Pharande, Inspector of Police (Worli), Crawford Market, Bombay, it is clear that not only had the appellant been beaten but his family members had also been beaten and harassed. Even his brother Ramesh Kumar, a handicapped man, had not been spared. These incidents took place on 12.4.1993, 14.4.1993, 15.4.1993, 16.4.1993, 17.4.1993, 21.4.1993, 22.4.1993, 5.5.1993 and 8.5.1993. It was also mentioned in that letter that the appellant had falsely been implicated in the case and had been tortured and forced to sign some writings under duress and pressure from the police authorities which may be used against him.
197. In Sahib Singh v. State of Haryana, [JT 1997 (7) SC 42 : (1997) 7 SCC 231], this Court held that `Confession means:
39. The Evidence Act contains a separate part dealing with Admission. This part comprises Sections 17 to 31. Confession which is known as a species of Admission is to be found contained in Sections 24 to 30.
41. In view of these decisions, it is now certain that a confession must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence. 42. Section 24 provides, though in the negative form, that confession can be treated as relevant against the person making the confession unless it appears to the court that it is rendered irrelevant on account of any of the factors, namely, threat, inducements, promises etc. mentioned therein. Whether the confession attracts the frown of Section 24 has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise from a person in authority would operate in his mind. (See: Satbir Singh v. State of Punjab, (1977) 2 SCC 302.) The confession has to be affirmatively proved to be free and voluntary. (See: Hem Raj Devilal v. State of Ajmer, (1977) 2 SCC 263) Before a conviction can be based on confession, it has to be shown that it was truthful.
46. The Act, like the Evidence Act, does not define confession and, therefore, the principles enunciated by this Court with regard to the meaning of confession under the Evidence Act shall also apply to a confession made under this Act. Under this Act also, confession has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on confession is based on the maxim habemus optimum testem, confitentem reum which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.
52. The confessional statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the confessional statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone to the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The confessional statement is not truthful and is part of the hallucination with which the prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.
198. The only question is, whether the provisions of Section 21(2) provides that in a prosecution for an offence under sub-section (3) of Section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume unless the contrary is proved, that such person has committed the offence under that sub-section. Thus, the provision of Section 21(2) can be resorted to, only in case it is proved by the prosecution that the accused rendered any financial assistance to a person who has already been facing the charge of terrorist or disruptive activities or he had reasons to suspect that the person to whom financial help has been rendered was indulging in such activities. Thus, there is a burden on the prosecution first to prove the aforesaid condition. In case, it is successfully proved that the person who render financial assistance to a person accused of terrorist/disruptive activities or suspect to be indulging in such activities, only then the presumption can be drawn.
198.1. In such a situation, it is not possible for us to accept the submission of Mr. Mukul Gupta, learned senior counsel appearing for the respondent, that even if a person has rendered financial assistance prior to or during a part proceeding, to the parties indulged in such activities, the provision of Section 21(2) would be attracted. On a literal interpretation of the provision such a construction is not permissible. There is nothing on record to show that during the time the appellant facilitated the financial transaction of Tiger Memon in the fake account named `HATHI and that he had reason to suspect that Tiger Memon or his associates were indulging in disruptive activities, or had been accused in such activities. The appellant may be guilty of running and indulging in fraudulent banking activities, or may be violating of provisions of other statutes but cannot be held guilty of the offences under Section 3(3) TADA.
199. In the instant case, there is nothing on record to show that any person could imagine what Tiger Memon (AA) was planning. In fact it was only after 12.3.1993, the date of Bombay blast, that the provisions of TADA could be attracted as far as Tiger Memon (AA) is concerned. Thus, he (A-97) cannot be held to be guilty under the said provisions. There is nothing on record on the basis of which an inference can be drawn, that the appellant (A-97) could reasonably suspect indulgence of Tiger Memon (AA) in terrorist or disruptive activities.
200. Section 2(1)(a)(iii) TADA provides that abet, with its variations and cognate expressions, includes rendering of any assistance whether financial of otherwise, to terrorists or disruptionists.
201. The learned Designated Court after appreciating all the evidence on record came to the conclusion that the phrase `financial assistance should not be given a restricted meaning, to include only assistance given by the concerned accused from his own money. The learned court went on to state that even allowing a terrorist to circulate his money should come within the ambit of that phrase, through an illegal account as maintained for Tiger Memon (AA) by Sampatraj (A-97).
202. In the case at hand, as it cannot be held even by stretch of imagination that Tiger Memon (AA) and his associates had been accused of such activities prior to 12.3.1993, or could reasonably be suspected of being indulged in such activities, the provisions of TADA are not attracted so far as the appellant is concerned. Therefore, we cannot agree with the order passed by the learned Designated Court so far as the appellant (A-97) is concerned. The appeal is therefore, allowed. The conviction and sentence awarded by the Designated Court are set aside. The appellant is on bail. His bail bonds stand discharged.
*************
