Ramesh Dattatray Mali Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) Police Party intercepting truck containing arms & ammunitions Allowing them to proceed after receiving bribe Recovery of Rs. 15000/- from appellant Denial On appreciating of evidence and relying on the confessional statement of A 30, Designate Court finding involvement of appellant A 101 His confessional statement stood corroborated by the confessional statement of A82, A90, A134 and A136 and established the presence of police party at the place of interception of truck as also the grant of permission to transport contraband goods on receipt of bribe. Held, conviction, on facts, under Section 3 (3) of TADA by Designated Court needs no interference. Aloke Nath Dutta v. State of West Bengal, relied.
108. This appeal has been preferred against the judgment and order dated 21.5.2007 passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast case No. 1/93, Greater Bombay by which the appellant (A-101) has been found guilty under Section 3(3) TADA, and on this count, the appellant has been sentenced to suffer RI for 6 years and also ordered to pay a fine of Rs.25,000/-, and in default of payment of fine to further suffer RI for 6 months.
109. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A- 101) has been charged with intentionally aiding and abetting terrorists, by allowing them to smuggle and transport arms and ammunition into India from abroad, by the illegal omission of the appellant (A-101) to thoroughly check the motor lorries carrying such arms and ammunition as well as other contraband, though the same had been intercepted by the police party on the night of 9.1.1993, at Gondghar Phata and had been allowed to carry on, in lieu of the payment of a bribe of Rs.7 lacs, which had been agreed to and accepted by all of them, upon negotiation with terrorists. Hence, the appellant has been charged under Section 3(3) TADA.
B. After his trial, the appellant (A-101) has been acquitted of the first charge, but has been convicted under Section 3(3) TADA and has been sentenced as referred to hereinabove.
Hence, this appeal.
110. Mrs. Anagha S. Desai, learned counsel appearing for the appellant (A-101) has submitted that there is nothing on record to show that the appellant (A-101) had any knowledge regarding the smuggling of arms and ammunition. At most, he may be guilty under the provisions of the Prevention of Corruption Act or of a violation of the Customs Act, or of FERA, but he certainly cannot be convicted under the provisions of TADA. Therefore, the appeal deserves to be allowed.
111. Shri Mukul Gupta, learned senior counsel appearing for the State, has submitted that the Hawaldar Mali, has been specifically named by the co-accused Uttam Shantaram Potdar (A-30), thereby revealing the fact that he had been the one counting the silver bricks in the truck when the same had been intercepted at Gondghar Phata. Thus, the appeal lacks merit, and is liable to be dismissed.
112. We have considered rival submissions made by the learned counsel for the parties and perused the records.
113. Evidence against the appellant :
(a) Confessional statement of Uttam Shantaram Potdar (A-30)
(b) Deposition of Dinesh Gopal Nakti (PW-95)
(c) Deposition of Krishnakant Nathu Ram Birade (PW-96)
(d) Deposition of Dilip Biku Pansare (PW-97)
(e) Deposition of Yeshwant Kadam (PW-109)
(f) Deposition of Vinod Chavan (PW-590)
114. Confessional statement of Uttam Shantaram Potdar (A-30):
Uttam Potdar (A-30) in his confessional statement recorded on 15.7.1993, has given details of the landing on 9.1.1993, of the smuggling of the contraband, silver etc. and about the interception of the two trucks carrying the contraband by the police party at Gondghar Phata. It was here that Uttam Potdar (A-30), has revealed that he had given illegal gratification for the earlier landings to Ramesh Mali, Hawaldar (A-101). He (A-30) has further stated that Mechanic Chacha (A-136) had offered the police party a sum of Rs.10 lacs. Ramesh Mali (A-101) and Ashok Narayan Muneshwar (A-70) had been the ones counting the bricks in the truck. In one truck there had been 175 bricks, and in the other truck there were about 100 bricks and some boxes were also there. Upon being asked, Mechanic Chacha (A-136) had told the police that the boxes contained wrist watches. As the smuggling party did not have cash, Mechanic Chacha (A-136) had removed 5 silver bricks from the truck and had given the same to Havaldar Pashilkar. This version of interception and checking etc. stands corroborated by Jaywant Keshav Gurav (A-82), Mohd. Sultan Sayyed (A-90), Salim Kutta (A-134) and Mechanic Chacha (A-136), to the extent that the smuggling party had in fact been intercepted by the police, and that without naming the appellant, they have described how they had been detained, and subsequently, how they were released after negotiations that lasted about half an hour, and as regards how since they did not have cash, they had delivered 5 silver bricks to the police.
115. Dinesh Gopal Nakti (PW-95) and Krishnakant Nathu Ram Birade (PW- 96) were labourers with Uttam Potdar (A-30), who had been the landing agent in the relevant incident. They have deposed that on 9.1.1993, they had gone alongwith 12 other labourers to Dighi Jetty, for the said landing. They have further deposed as regards how the goods were smuggled and transported, but they have not named the appellant (A- 101) specifically, as being a member of the intercepting police team.
116. Dilip Biku Pansare (PW-97) was a mechanic in the State Transport Corporation, but had also been assisting Uttam Potdar (A-30) in his smuggling activities and it was he who had been driving the vehicle carrying the smuggled articles on 9.1.1993 from Dighi Jetty to Bombay. Two trucks carrying smuggled goods had been intercepted by the police party at Gondghar Phata. The vehicles had been stopped and checked. On their asking, the police had been told that the smuggled goods were silver and that there were also some boxes that contained glassware. He has further provided details with respect to how the police party had behaved, but did not name the appellant specifically.
117. Yeshwant Kadam (PW-109) and Vinod Chavan (PW-590) are the witnesses to the recovery of Rs.15,000/- from the appellant (A-101). In his examination under Section 313 Cr.P.C., the appellant (A-101) has submitted that Vinod Chavan (PW-590) had not made any such recovery, rather, on 21.4.1993 the appellants wife had gone to the Shrivardhan Police Station and had given a sum of Rs.15,000/- that had been brought by her by pledging her ornaments with the Mahad Cooperative Urban Bank to avoid harassment, as the same had been demanded by the Police. The Police has shown the said amount to be the amount recovered from the appellant (A-101), by drawing up a false panchnama Exh.563, to this effect.
118. The Designated Court has dealt with all the aforesaid issues, and after appreciating the entire evidence on record so far as the appellant (A-101) is concerned, the Designated Court has held that Uttam Potdar (A-30) has revealed the involvement of the appellant (A- 101) in the relevant episode. His confessional statement to this effect stands corroborated by the material in the confessions of Jaywant Keshav Gurav (A-82), Mohd. Sultan Sayyed (A-90), Salim Kutta (A-134) and Mechanic Chacha (A-136), which establishes the presence of the police party of the Shrivardhan Police Station at Gondghar Phata, and further the transportation of contraband goods being permitted in return for the receipt of bribe. Thus, the court has reached the conclusion that the appellant (A-101) was in fact involved in the commission of the offence under Section 3(3) TADA, though he was not found guilty of the general charge of conspiracy, as has been mentioned in the first general charge.
119. The present case is a clear case where a police party had intercepted and checked trucks carrying the smuggled goods/articles i.e. arms, ammunition and contraband, and has, after negotiating for half an hour, with such party, permitted them to proceed further after receiving the decided bribe amount i.e. silver bricks in lieu of cash which was to be paid later on. We are unable to agree with the submissions of Ms. Desai, with reference to the retracted confessions not being admissible in view of the law laid down by this court in Aloke Nath Dutta & Ors. v. State of West Bengal, (2007) 12 SCC 230. For the foregoing reasons, the appeal lacks merit, and is accordingly dismissed.