Ranjit Kumar Singh Vs. State of Maharashtra thr. CBI
EmailAppeal: Criminal Appeal No. 1632 of 2007
Petitioner: Ranjit Kumar Singh
Respondent: State of Maharashtra thr. CBI
Apeal: Criminal Appeal No. 1632 of 2007
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(3), 3(2)(i)(ii), (4), 5 and 6 – Penal Code, 1860, Section 120B read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay Blast case – Appellant A-102, was Assistant Custom Collector Alibagh – Landing took place – Attended conspirational meeting wherein the admitted allowing continued smuggling activities in lieu of illegal gratification – Rupees 7 to 8 lac per landing agreed – Facilitated landing of contraband on 3rd and 7th February 1993 – Arms smuggled into India – Conviction under Section 3(3) of TADA – Proved by confessional statements of A-90, A-134, A-136, A-17 and depositions of PWs 470, 154, 146, 155 and 191 that appellant and Mohd. Doss and Tiger Memon. Held evidence on record showed his involvement in facilitating transportation of arms and ammunitions. Appeal dismissed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 3(2)(i)(ii), (4), 5 and 6 – Penal Code, 1860, Section 120B read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay Blast case – Appellant A-102, was Assistant Custom Collector Alibagh – Landing took place – Attended conspirational meeting wherein the admitted allowing continued smuggling activities in lieu of illegal gratification – Rupees 7 to 8 lac per landing agreed – Facilitated landing of contraband on 3rd and 7th February 1993 – Arms smuggled into India – Conviction under Section 3(3) of TADA – Proved by confessional statements of A-90, A-134, A-136, A-17 and depositions of PWs 470, 154, 146, 155 and 191 that appellant and Mohd. Doss and Tiger Memon. Held evidence on record showed his involvement in facilitating transportation of arms and ammunitions. Appeal dismissed.
Held:
From the evidence referred to hereinabove, the prosecution has established the case against the appellant (A-102) as:
– The appellant knew Mohd. Dossa, Tiger Memon and their landing agents and had been allowing the accused persons to smuggle contraband goods into India, for which he was getting hefty bribes.
– There had been a meeting on 6.1.1993 which was attended by the appellant (A-102), alongwith Sayyed, Mohd. Dossa and other persons. It was decided in the meeting that 7-8 lacs would be paid to the Custom Officers for each landing.
– Landing took place on 9.1.1993, for which the appellant had been informed by Mohd. Dossa through Salim and Feroz that the landing would take place on that date.
– Arms and ammunition sent by Mustafa Majnu landed at Dighi Jetty on 9.1.1993.
– Appellant (A-102) received illegal gratification from the accused persons for this landing and had received the bribe for the landing done on 2.12.1993 by Mohd. Dossa.
– Appellant (A-102) knew about the landing which took place on 3.2.1993 and 7.2.1993 at Shekhadi.
– Appellant had received the information from Sh. Bhardwaj, Collector of Custom on 25.1.1993 that I.S.I. Syndicate located in Middle East and Bombay may try to smuggle contraband and arms in the Districts of Bombay, Raigad and Thane. Despite this specific information he allowed Tiger Memon (AA) and his persons to smuggle arms, explosives etc. in India. (Para 425)
There is enough evidence on record to show the involvement of the appellant (A-102) in facilitating the smuggling of arms, ammunition and explosives within his jurisdiction in lieu of payment of illegal gratification. We find no reason to interfere with the conclusion of the learned Special Judge. The appeal lacks merit and is accordingly dismissed. (Para 427)
JUDGEMENT:
Dr. B.S. Chauhan, J.
407. This appeal has been preferred against the judgments and orders dated 18.9.2006 and 19.7.2007 passed by Special Judge of the Designated Court under the TADA for the Bombay Bomb Blast Cases, Greater Bombay, in Bombay Blast Case No. 1/1993. The appellant (A-102) has been convicted under Section 3(3) TADA and has been awarded the sentence to undergo rigorous imprisonment for 9 years alongwith a fine of Rs. 3,00,000/- and in default of payment of fine, to suffer further RI for 4 years.
408. Fact and circumstances giving rise to this appeal are that :
A. In addition to the first charge of general conspiracy, the appellant (A-102), who was an Assistant Customs Collector (Alibagh), the adjoining district of Raigad, where three landings took place was charged under Section 3(3) TADA for attending the conspiratorial meeting at the Persian Darbar on 6.2.1993, alongwith co-accused Mohmed Sultan Sayyed (A-90) and Customs Superintendent Ahmed Alimed (PW-317), in which the wanted accused Mohd. Ahmed Dossa (AA), Mohmed Jaipuria and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were also present and had agreed to allow Mohd. Ahmed Dossa (AA) and his associates to continue with their smuggling activities within his (A- 102) jurisdiction in return for the payment of Rs.7.8 lakhs per landing. In furtherance of the same, Mohd. Ahmed Dossa (AA) and his associates smuggled ammunition for the commission of terrorist acts.
B. Furthermore, he has also been charged for facilitating the smuggling and transportation of arms, ammunition and explosives by Tiger Memon (AA) and his associates on 3rd February and 7th February, 1993 at Shekhadi owing to which, arms, ammunition and explosives were brought into the country for the commission of terrorist acts. He had received specific information and knowledge, that arms, ammunition and explosives were being smuggled into the country. Hence, he has been charged under Section 3(3) TADA, and was found guilty vide judgments and orders dated 18.9.2006 and 19.7.2007.
Hence, this appeal.
409. Mr. Sushil Kumar, learned senior counsel appearing for the appellant (A-102), has submitted that the appellant (A-102) has been acquitted of the first charge of general conspiracy, and a finding of fact has been recorded by the Designated Court, that there was no evidence on record to show that the appellant had accepted any bribe from any of the smugglers or their landing agents etc. The confessional statement of the appellant has been rejected by the Designated Court on the ground that it was recorded by the Inspector of Police, and such person has not been accepted as a competent authority under Section 15 TADA, to record such statement. Therefore, such a confession cannot be taken into consideration. Eight co-accused in their confessional statements have named the appellant stating that the landing agents of the smugglers had been in contact with him and that they had been paying to him, amounts as were fixed per landing. However, the statements of three co-accused i.e. Uttam Shantaram Potdar (A- 30), Mohmed Salim Mira Moiddin Shaikh @ Salim Kutta (A-134) and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were recorded subsequent to the date of amendment dated 22.5.1993. Therefore, the confessional statements of five other co-accused, which were recorded prior to the date of the said amendment, cannot be relied upon. The contents of the confessional statements of the aforementioned three co-accused do not inspire confidence and cannot be relied upon. The appellant (A-102) has wrongly been convicted under Section 3(3) TADA and awarded a sentence of 9 years alongwith a fine of Rs.3 lakhs. The appellant has already served about 7 years of imprisonment, and has also deposited the fine. Moreover, other officers of the Customs Department were also convicted in this case, particularly, Jaywant Keshav Gurav (A- 82), Mohmed Sultan Sayyed (A-90), Somnath Kakaram Thapa (A- 112) (dead) and Sudhanwa Sadashiv Talwadekar (A-113), and among them, Somnath Kakaram Thapa (A-112) (dead) who was a superior officers to the appellant (A-102), and also others who were his subordinates, have been awarded a lesser sentence. A sentence of 8 years was awarded to Jaywant Keshav Gurav (A-82) and of seven years to Mohmed Sultan Sayyed (A-90). Hence, his sentence should be reduced to the period already undergone.
410. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal contending that the confessional statements of all the co-accused, though recorded prior to the date of amendment, must be relied upon. The Collector of Customs Shiv Kumar Bhardwaj (PW-470) informed the appellant (A-102) over the telephone on 25.1.1993 that he (PW- 470) had received definite information through Intelligence that arms and ammunition would be smuggled into India alongwith silver and gold and that landings of the same would take place within the territorial jurisdiction of the appellant (A-102). Hence, he must take all necessary precautions and seize both, the weapons as well as the contraband silver and gold. Undoubtedly, the appellant (A-102) regularly informed the Collector about the progress made by him in this regard, but did not take any actual effective measures, instead, he spent his time bargaining and taking bribes from the smugglers, to facilitate the landing and transportation of the said goods. Hence, no leniency must be shown to him. The appeal is liable to be dismissed.
411. We have considered the rival submissions made by learned counsel for the parties and perused the record.
412. The confessional statement made by the appellant has rightly been rejected by the Designated Court, and we do not wish to spend further time on this issue. This, being the first appeal, it becomes necessary for us to re-appreciate the evidence on record while considering the same.
413. Evidence against the appellant (A-102):
(a) Confessional statement of the appellant (A-102)
(b) Confessional Statement of Uttam Shantaram Potdar (A-30)
(c) Confessional Statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Mohd. Sultan Sayyed (A-90):
(e) Confessional Statement of Mohd. Salim Mira Moiddin Shaikh (A-134)
(f) Confessional Statement of Mohmed Kasam Lajpuria (A- 136)
(g) Confessional Statement of Dadabhai Abdul Gafoor Parkar (A-17)
(h) Deposition of Shivkumar Bhardwaj (PW-470)
(i) Deposition of Yashwant Balu Lotale (PW-154)
(j) Deposition of Sitaram Maruti Padwal (PW-146)
(k) Deposition of Madhukar Krishna Dhandure (PW-153)
(l) Deposition of Tikaram Shrawan Bhal (PW-191)
414. Confessional Statement of Uttam Shantaram Potdar (A-30) :
He has corroborated the statement of the co-accused in respect of the meetings held, and the acceptance of bribe. He has stated that on 4.12.1993, a Customs Sepoy had come to him and had told him that he had been called to Mhasla. On reaching there at 8.00 p.m., the Assistant Collector R.K. Singh, appellant (A-102), called him to his chamber and on enquiry, A-30 disclosed about the previous landing dated 3.12.1992. On 5.12.1992, appellant (A-102) was paid Rs.2.5 lacs for landing. In January 1993, Superintendent Sayyed was given Rs.2.5 lacs to give the same to appellant (A- 102).
415. Confessional Statement of Jaywant Keshav Gurav (A-82):
The accused (A-82) was working with the Customs Department, and his job was to prevent smuggling along the sea- coast, to nab smugglers by collecting secret information against them and to file cases against them as well. Shri R.K. Singh (A- 102) had been the Assistant Collector of the Marine Preventive since September 1992. In December, 1992, a letter was received by customs officials stating that it was likely that smuggling of weapons would take place along the Western coast. The accused (A-82) knew Dawood Phanse (A-14), Uttam Potdar (A-30), Rahim Laundriwala, and Shabir Kadri who were all working as landing agents for smuggling activities in the said area.
On 3.12.1992, the accused (A-102) came to Mhasla. The accused (A-82) met the appellant (A-102) and discussed about a landing on 2.12.1992. The appellant (A-102) had a talk also with Dawood Phanse (A-14) at the Mhasla rest house. The appellant (A- 102) called him (A-82) and told him to go to Bombay the next day, to collect money from Uttam Potdar (A-30).
After 2-3 days Uttam Potdar (A-30) came to his room at night at Shrivardhan, and gave him Rs.4,00,000/- and a direction to pay out of the said amount, a sum of Rs.2,50,000/- to the appellant (A-102) and Rs.1,50,000/- to the Superintendent. He (A- 82) handed over the money to the appellant (A-102) in a building near the post office and thereafter, returned to Shrivardhan. On 9.1.1993, he (A-82) met the appellant (A-102) and the appellant (A-102) told him that Mohd. Dossas landing was going to take place and directed him (A-82) to help him.
416. Confessional statement of Mohd. Sultan Sayyed (A-90):
He was the Superintendent Customs Preventive, Alibagh. Some time in the month of November, 1992, the appellant (A-102) had told M.S. Sayeed (A-90) that Rs.1,00,000/- was to be recovered from Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyian (A-14) towards penalty. A-90 then directed Dawood Mohammed Phanse (A-14) to pay the said amount, failing which his name would be intimated to the Collector, Raigad. In December 1992, the appellant (A-102) and one Inspector Padwal forced him to accept a sum of Rs.35,000/- towards the smuggling of silver on 2nd December, 1992 at Dighi. When he refused to accept the same, the appellant (A-102) threatened to spoil his confidential report. As regards the landing on 2nd December, 1992, Inspector Gurav (A-82) paid a certain amount to the appellant (A- 102).
On 6.1.1993 he (A-90), alongwith the appellant (A-102), Customs Superintendent Lotale (PW-154) reached Hotel Persian Darbar, where three persons including Mohammed Dossa (AA) were already present. From their discussion, he learnt that the appellant (A-102) had demanded a sum of Rs.10 lakhs for each landing. In the 3rd week of January, 1993, the appellant (A-102) called (A-90) into his office and introduced him to Uttam Shantaram Potdar (A-30), and he learnt that A-30 had given the appellant a sum of Rs.3,50,000/-.
On 2.2.1993, the appellant (A-102) told the co-accused (A- 90) to go to Hotel Big Splash. There he met Dadabhai (A-17) who told him that a landing might take place at Bankot Khadi on 5th/6th February, 1993. On 3rd and 4th February, 1993, Dadabhai told the co-accused (A-90) to deliver a personal message to the appellant (A-102) to the effect that as a dead body had been found at his work place, the said work had been postponed, and that further, he would contact the appellant (A-102) before the job was to be done. Dadabhai (A-17) told (A-90) that he was the son-in-law of A.R. Antule.
On 12.2.1993 co-accused (A-90) learnt that Dawood Phanses son (A-55) had paid the appellant (A-102), Rs.3.5 lacs. On 13.2.1993, the appellant (A-102) had paid a sum of Rs.50,000/- to (A-90) for the landing at Shekhadi on 3.2.1993.
417. Confessional Statement of Mohd. Salim Mira Moiuddin Shaikh (A-134):
In his confessional statement, he (A-134) has stated that he had gone to Hotel Persian Darbar alongwith Mohd. Dossa, Mohd. Kaliya, Abdul Qayum and Mohd. Mental, and had met Customs Officers including the appellant (A-102). At the said meeting, it was decided that Rs.7-8 lakhs would be paid for each landing to the said Customs Officers by Mohd. Dossa. A few days later, Mohd. Dossa told the Customs Officers that a large quantity of arms and ammunition would be brought at Mhasla, for which arrangements were to be made. He (A-134) and Feroz informed the appellant (A-102) of the said landing on the instructions of Mohd. Dossa.
418. Confessional Statement of Mohmed Kasam Lajpuria (A- 136):
He (A-136) stated that the appellant (A-102) had been present at the meeting held at Hotel Persian Darbar on 6.1.1993, where it was decided that Rs.9-10 lakhs would be paid to the Customs staff for one landing. Mohd. Dossa instructed Salim and Feroz to make arrangements for Dighi landing after talking to appellant (A-102).
419. Confessional statement of Sudhanwa Sadashiv Talwadekar (A-113):
He (A-113) did not name the appellant (A-102), but corroborated that the landing took place on 9.1.1993.
420. Confessional Statement of Dadabhai Abdul Gafoor (A- 17):
In his confession, A-17 disclosed that he used to facilitate the landings of smuggled goods, and that he had been working with Tiger Memon (AA) and Dawood Taklya (A-14) for the past 1-1/2 years. The last two jobs involved the landing of weapons and explosives. On 3rd February, 1993, he (A-17) contacted appellant (A-102) on telephone on the instructions of Tiger Memon (AA) and asked him to meet Tiger Memon at Hotel Big Splash. The appellant (A-102) sent Superintendent Sayyed (A-90) who negotiated with Tiger (AA), and Tiger told him that he had some work that day.
421. Deposition of Shivkumar Bhardwaj (PW-470):
In his statement, he has revealed that he had received information from the Directorate of Revenue Intelligence (DRI) that a big quantity of automatic weapons would be smuggled into India by the ISI alongwith contraband, gold and silver within 15-30 days at Vasai, Dadar Pen around Bombay, Shrivardhan, Bankot, Ratanagiri and along the southern beaches of Goa. In view thereof, he had sent letter dated 25.1.1993 (Ext. 1536) to the appellant (A- 102), and had also spoken to him over the telephone on the very same day, and had cautioned him to keep a close watch and remain highly alert regarding the possibility of the landing of arms alongwith the other contraband. He (PW-470) had further advised A-102 to pay close attention to the situation, and to make an attempt to seize the weapons as well as the contraband. In the event of seizure of such goods, the officer (A-102) would be rewarded, and a lucrative reward would also be given to the person who furnished any requisite information, and that it was for this purpose, that the officers of the customs department were mixing closely with the smugglers so as to win their confidence and dupe them into giving them such information. The witness further revealed that the appellant (A-102) and Sh. S.N. Thapa (dead), had kept him informed about the steps taken in this regard.
422. Deposition of Yashwant Balu Lotale (PW-154):
In his statement he has revealed that he and the appellant (A- 102), were working as Assistant Collectors of Customs and he has deposed that he had gone alongwith the appellant (A-102) and M.S. Sayyed (A-90) on 6.1.1993 after leaving the Alibagh office and that they had carried out the work of collecting intelligence by patrolling areas until 1.00 a.m. on 7.1.1993. Thus, he has deposed in favour of the appellant (A-102).
423. Deposition of Sitaram Maruti Padwal (PW-146):
He was inspector of Customs and was called by the appellant (A-102) to his cabin in September 1992, and he (A-102) had enquired as to whether the penalty of Rs.1 lac imposed upon Dawood Phanse (A-14) had been recovered. The witness, after checking the record, informed the appellant (A-102) that the penalty had not been recovered. On 11.2.1993, three parties were formed for patrolling and in one such party, he (PW-146) was also included. The appellant (A-102), Sayyed (A-90) and the witness (PW-146) had gone to the residence of Dadabhai (A-17). On being informed, Dadabhai Parkar (A-17) came and met the appellant (A- 102) who remained seated in the car. A discussion had ensued between Dadabhai (A-17) and the appellant (A-102). From there they came to the Rest House, where A-102 met a person sent by Dawood Phanse (A-14).
424. Deposition of Madhukar Krishna Dhandure (PW-153):
In the year 1993, appellant (A-102), was the main officer at the customs office in Alibagh. On 6.1.1993, at about 5.00 p.m. he went for patrolling alongwith A-102.
425. From the evidence referred to hereinabove, the prosecution has established the case against the appellant (A-102) as:
– The appellant knew Mohd. Dossa, Tiger Memon and their landing agents and had been allowing the accused persons to smuggle contraband goods into India, for which he was getting hefty bribes.
– There had been a meeting on 6.1.1993 which was attended by the appellant (A-102), alongwith Sayyed, Mohd. Dossa and other persons. It was decided in the meeting that 7-8 lacs would be paid to the Custom Officers for each landing.
– Landing took place on 9.1.1993, for which the appellant had been informed by Mohd. Dossa through Salim and Feroz that the landing would take place on that date.
– Arms and ammunition sent by Mustafa Majnu landed at Dighi Jetty on 9.1.1993.
– Appellant (A-102) received illegal gratification from the accused persons for this landing and had received the bribe for the landing done on 2.12.1993 by Mohd. Dossa.
– Appellant (A-102) knew about the landing which took place on 3.2.1993 and 7.2.1993 at Shekhadi.
– Appellant had received the information from Sh. Bhardwaj, Collector of Custom on 25.1.1993 that I.S.I. Syndicate located in Middle East and Bombay may try to smuggle contraband and arms in the Districts of Bombay, Raigad and Thane. Despite this specific information he allowed Tiger Memon (AA) and his persons to smuggle arms, explosives etc. in India.
426. After considering the entire evidence on record, the learned Special Judge came to the conclusion as under:
265) Without making any unnecessary dilation about the self-eloquent evidence about which the relevant excerpts are cited earlier it can be safely said that considering the act committed by these 4 accused as reflected from same i.e. participation of A-102 & 90 in Persian Darbar meeting and negotiating with smugglers about the bribe amount to be paid and granting them a charter to smuggle the contraband articles or in fact any thing, the act of A-82 inspite of being present on the spot of interception of goods by police, instead of seizing the same allowing the same to be transported further and in most clandestine manner piloting the convoy carrying the contraband goods on its way to destination uptil a particular spot, advising the policemen in clandestine manner etc., and of A-II3 though not being directly connected with said landing readily & willingly accepting his share of booty from the bribe amount received for the said landing and thereby denoting his implied connivance for the said operation seized earlier; not revealed otherwise in view of himself being not directly involvement in commission of act and considering the further acts committed byA-90, 82 and 113 regarding Shekadi landing and so also to some extent byA-l02 clearly reveals themselves having committed the offence u/s. 3(3) of TADA for which each of them has been charged with at this trial.
266) However, the careful consideration of said evidence and even after taking into consideration the fact that A-102 and A-90 had participated in Persian Darbar meeting; still the evidence having fall short of themselves having connived with the conspirators in this case for commission of said act for the purposes of conspiracy, it will be difficult to hold them or an of them liable for offence of conspiracy for which each of them has been charged with on the basis of evidence surfaced regarding Dighi landing episode and so also about Shekadi landing episode about which the discussion is made later on.
267) Truly speaking receipt of bribe amount for allowing the said operation considered from proper angle also connotes that the act committed by the A- 102, 90, 113 & 82 being primarily for receipt of bribe amount by misusing/abusing their official position would definitely fallout of sphere of the conspiracy for which the relevant operation was organized and effected by other co-accused. The same is obvious as conspirators always join the conspiracy or become members of conspiracy due to being interested in either furthering the object of conspiracy or achieving the object of conspiracy. The payment of the money for commission of act which may have a semblance of furthering object of conspiracy will still not make the concerned liablefor offence of conspiracy. The same is apparent as the act committed by them would be for the purposes of receiving the said payment and not mainly for furthering the object of conspiracy. It is true that their such acts as ruled earlier would amount to commission of offence of an abetment or assistance et for commission of terrorist act by other conspirators and they could be held liable for the same but still they cannot be said to be involved in the conspiracy. In view of the aforesaid, none of the A-102, 90, 113 & 82 can be said to be guilty for commission of offences of conspiracy for which the charge at head 1st ly is framed against them or even otherwise for any smaller conspiracy. However, by way of abundant caution it will be necessary to record that aforesaid observations is limited to above stated 4 accused from Customs dept., and the same is not in relation to A-102 i.e. Addl. Collector of Customs whose case clearly appears to be different i.e. his connection with Tiger Memon being spelt from evidence revealed during Shekadi landing, there being hardly any evidence of himself having received….
427. There is enough evidence on record to show the involvement of the appellant (A-102) in facilitating the smuggling of arms, ammunition and explosives within his jurisdiction in lieu of payment of illegal gratification. We find no reason to interfere with the conclusion of the learned Special Judge. The appeal lacks merit and is accordingly dismissed.
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407. This appeal has been preferred against the judgments and orders dated 18.9.2006 and 19.7.2007 passed by Special Judge of the Designated Court under the TADA for the Bombay Bomb Blast Cases, Greater Bombay, in Bombay Blast Case No. 1/1993. The appellant (A-102) has been convicted under Section 3(3) TADA and has been awarded the sentence to undergo rigorous imprisonment for 9 years alongwith a fine of Rs. 3,00,000/- and in default of payment of fine, to suffer further RI for 4 years.
408. Fact and circumstances giving rise to this appeal are that :
A. In addition to the first charge of general conspiracy, the appellant (A-102), who was an Assistant Customs Collector (Alibagh), the adjoining district of Raigad, where three landings took place was charged under Section 3(3) TADA for attending the conspiratorial meeting at the Persian Darbar on 6.2.1993, alongwith co-accused Mohmed Sultan Sayyed (A-90) and Customs Superintendent Ahmed Alimed (PW-317), in which the wanted accused Mohd. Ahmed Dossa (AA), Mohmed Jaipuria and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were also present and had agreed to allow Mohd. Ahmed Dossa (AA) and his associates to continue with their smuggling activities within his (A- 102) jurisdiction in return for the payment of Rs.7.8 lakhs per landing. In furtherance of the same, Mohd. Ahmed Dossa (AA) and his associates smuggled ammunition for the commission of terrorist acts.
B. Furthermore, he has also been charged for facilitating the smuggling and transportation of arms, ammunition and explosives by Tiger Memon (AA) and his associates on 3rd February and 7th February, 1993 at Shekhadi owing to which, arms, ammunition and explosives were brought into the country for the commission of terrorist acts. He had received specific information and knowledge, that arms, ammunition and explosives were being smuggled into the country. Hence, he has been charged under Section 3(3) TADA, and was found guilty vide judgments and orders dated 18.9.2006 and 19.7.2007.
Hence, this appeal.
409. Mr. Sushil Kumar, learned senior counsel appearing for the appellant (A-102), has submitted that the appellant (A-102) has been acquitted of the first charge of general conspiracy, and a finding of fact has been recorded by the Designated Court, that there was no evidence on record to show that the appellant had accepted any bribe from any of the smugglers or their landing agents etc. The confessional statement of the appellant has been rejected by the Designated Court on the ground that it was recorded by the Inspector of Police, and such person has not been accepted as a competent authority under Section 15 TADA, to record such statement. Therefore, such a confession cannot be taken into consideration. Eight co-accused in their confessional statements have named the appellant stating that the landing agents of the smugglers had been in contact with him and that they had been paying to him, amounts as were fixed per landing. However, the statements of three co-accused i.e. Uttam Shantaram Potdar (A- 30), Mohmed Salim Mira Moiddin Shaikh @ Salim Kutta (A-134) and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were recorded subsequent to the date of amendment dated 22.5.1993. Therefore, the confessional statements of five other co-accused, which were recorded prior to the date of the said amendment, cannot be relied upon. The contents of the confessional statements of the aforementioned three co-accused do not inspire confidence and cannot be relied upon. The appellant (A-102) has wrongly been convicted under Section 3(3) TADA and awarded a sentence of 9 years alongwith a fine of Rs.3 lakhs. The appellant has already served about 7 years of imprisonment, and has also deposited the fine. Moreover, other officers of the Customs Department were also convicted in this case, particularly, Jaywant Keshav Gurav (A- 82), Mohmed Sultan Sayyed (A-90), Somnath Kakaram Thapa (A- 112) (dead) and Sudhanwa Sadashiv Talwadekar (A-113), and among them, Somnath Kakaram Thapa (A-112) (dead) who was a superior officers to the appellant (A-102), and also others who were his subordinates, have been awarded a lesser sentence. A sentence of 8 years was awarded to Jaywant Keshav Gurav (A-82) and of seven years to Mohmed Sultan Sayyed (A-90). Hence, his sentence should be reduced to the period already undergone.
410. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal contending that the confessional statements of all the co-accused, though recorded prior to the date of amendment, must be relied upon. The Collector of Customs Shiv Kumar Bhardwaj (PW-470) informed the appellant (A-102) over the telephone on 25.1.1993 that he (PW- 470) had received definite information through Intelligence that arms and ammunition would be smuggled into India alongwith silver and gold and that landings of the same would take place within the territorial jurisdiction of the appellant (A-102). Hence, he must take all necessary precautions and seize both, the weapons as well as the contraband silver and gold. Undoubtedly, the appellant (A-102) regularly informed the Collector about the progress made by him in this regard, but did not take any actual effective measures, instead, he spent his time bargaining and taking bribes from the smugglers, to facilitate the landing and transportation of the said goods. Hence, no leniency must be shown to him. The appeal is liable to be dismissed.
411. We have considered the rival submissions made by learned counsel for the parties and perused the record.
412. The confessional statement made by the appellant has rightly been rejected by the Designated Court, and we do not wish to spend further time on this issue. This, being the first appeal, it becomes necessary for us to re-appreciate the evidence on record while considering the same.
413. Evidence against the appellant (A-102):
(a) Confessional statement of the appellant (A-102)
(b) Confessional Statement of Uttam Shantaram Potdar (A-30)
(c) Confessional Statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Mohd. Sultan Sayyed (A-90):
(e) Confessional Statement of Mohd. Salim Mira Moiddin Shaikh (A-134)
(f) Confessional Statement of Mohmed Kasam Lajpuria (A- 136)
(g) Confessional Statement of Dadabhai Abdul Gafoor Parkar (A-17)
(h) Deposition of Shivkumar Bhardwaj (PW-470)
(i) Deposition of Yashwant Balu Lotale (PW-154)
(j) Deposition of Sitaram Maruti Padwal (PW-146)
(k) Deposition of Madhukar Krishna Dhandure (PW-153)
(l) Deposition of Tikaram Shrawan Bhal (PW-191)
414. Confessional Statement of Uttam Shantaram Potdar (A-30) :
He has corroborated the statement of the co-accused in respect of the meetings held, and the acceptance of bribe. He has stated that on 4.12.1993, a Customs Sepoy had come to him and had told him that he had been called to Mhasla. On reaching there at 8.00 p.m., the Assistant Collector R.K. Singh, appellant (A-102), called him to his chamber and on enquiry, A-30 disclosed about the previous landing dated 3.12.1992. On 5.12.1992, appellant (A-102) was paid Rs.2.5 lacs for landing. In January 1993, Superintendent Sayyed was given Rs.2.5 lacs to give the same to appellant (A- 102).
415. Confessional Statement of Jaywant Keshav Gurav (A-82):
The accused (A-82) was working with the Customs Department, and his job was to prevent smuggling along the sea- coast, to nab smugglers by collecting secret information against them and to file cases against them as well. Shri R.K. Singh (A- 102) had been the Assistant Collector of the Marine Preventive since September 1992. In December, 1992, a letter was received by customs officials stating that it was likely that smuggling of weapons would take place along the Western coast. The accused (A-82) knew Dawood Phanse (A-14), Uttam Potdar (A-30), Rahim Laundriwala, and Shabir Kadri who were all working as landing agents for smuggling activities in the said area.
On 3.12.1992, the accused (A-102) came to Mhasla. The accused (A-82) met the appellant (A-102) and discussed about a landing on 2.12.1992. The appellant (A-102) had a talk also with Dawood Phanse (A-14) at the Mhasla rest house. The appellant (A- 102) called him (A-82) and told him to go to Bombay the next day, to collect money from Uttam Potdar (A-30).
After 2-3 days Uttam Potdar (A-30) came to his room at night at Shrivardhan, and gave him Rs.4,00,000/- and a direction to pay out of the said amount, a sum of Rs.2,50,000/- to the appellant (A-102) and Rs.1,50,000/- to the Superintendent. He (A- 82) handed over the money to the appellant (A-102) in a building near the post office and thereafter, returned to Shrivardhan. On 9.1.1993, he (A-82) met the appellant (A-102) and the appellant (A-102) told him that Mohd. Dossas landing was going to take place and directed him (A-82) to help him.
416. Confessional statement of Mohd. Sultan Sayyed (A-90):
He was the Superintendent Customs Preventive, Alibagh. Some time in the month of November, 1992, the appellant (A-102) had told M.S. Sayeed (A-90) that Rs.1,00,000/- was to be recovered from Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyian (A-14) towards penalty. A-90 then directed Dawood Mohammed Phanse (A-14) to pay the said amount, failing which his name would be intimated to the Collector, Raigad. In December 1992, the appellant (A-102) and one Inspector Padwal forced him to accept a sum of Rs.35,000/- towards the smuggling of silver on 2nd December, 1992 at Dighi. When he refused to accept the same, the appellant (A-102) threatened to spoil his confidential report. As regards the landing on 2nd December, 1992, Inspector Gurav (A-82) paid a certain amount to the appellant (A- 102).
On 6.1.1993 he (A-90), alongwith the appellant (A-102), Customs Superintendent Lotale (PW-154) reached Hotel Persian Darbar, where three persons including Mohammed Dossa (AA) were already present. From their discussion, he learnt that the appellant (A-102) had demanded a sum of Rs.10 lakhs for each landing. In the 3rd week of January, 1993, the appellant (A-102) called (A-90) into his office and introduced him to Uttam Shantaram Potdar (A-30), and he learnt that A-30 had given the appellant a sum of Rs.3,50,000/-.
On 2.2.1993, the appellant (A-102) told the co-accused (A- 90) to go to Hotel Big Splash. There he met Dadabhai (A-17) who told him that a landing might take place at Bankot Khadi on 5th/6th February, 1993. On 3rd and 4th February, 1993, Dadabhai told the co-accused (A-90) to deliver a personal message to the appellant (A-102) to the effect that as a dead body had been found at his work place, the said work had been postponed, and that further, he would contact the appellant (A-102) before the job was to be done. Dadabhai (A-17) told (A-90) that he was the son-in-law of A.R. Antule.
On 12.2.1993 co-accused (A-90) learnt that Dawood Phanses son (A-55) had paid the appellant (A-102), Rs.3.5 lacs. On 13.2.1993, the appellant (A-102) had paid a sum of Rs.50,000/- to (A-90) for the landing at Shekhadi on 3.2.1993.
417. Confessional Statement of Mohd. Salim Mira Moiuddin Shaikh (A-134):
In his confessional statement, he (A-134) has stated that he had gone to Hotel Persian Darbar alongwith Mohd. Dossa, Mohd. Kaliya, Abdul Qayum and Mohd. Mental, and had met Customs Officers including the appellant (A-102). At the said meeting, it was decided that Rs.7-8 lakhs would be paid for each landing to the said Customs Officers by Mohd. Dossa. A few days later, Mohd. Dossa told the Customs Officers that a large quantity of arms and ammunition would be brought at Mhasla, for which arrangements were to be made. He (A-134) and Feroz informed the appellant (A-102) of the said landing on the instructions of Mohd. Dossa.
418. Confessional Statement of Mohmed Kasam Lajpuria (A- 136):
He (A-136) stated that the appellant (A-102) had been present at the meeting held at Hotel Persian Darbar on 6.1.1993, where it was decided that Rs.9-10 lakhs would be paid to the Customs staff for one landing. Mohd. Dossa instructed Salim and Feroz to make arrangements for Dighi landing after talking to appellant (A-102).
419. Confessional statement of Sudhanwa Sadashiv Talwadekar (A-113):
He (A-113) did not name the appellant (A-102), but corroborated that the landing took place on 9.1.1993.
420. Confessional Statement of Dadabhai Abdul Gafoor (A- 17):
In his confession, A-17 disclosed that he used to facilitate the landings of smuggled goods, and that he had been working with Tiger Memon (AA) and Dawood Taklya (A-14) for the past 1-1/2 years. The last two jobs involved the landing of weapons and explosives. On 3rd February, 1993, he (A-17) contacted appellant (A-102) on telephone on the instructions of Tiger Memon (AA) and asked him to meet Tiger Memon at Hotel Big Splash. The appellant (A-102) sent Superintendent Sayyed (A-90) who negotiated with Tiger (AA), and Tiger told him that he had some work that day.
421. Deposition of Shivkumar Bhardwaj (PW-470):
In his statement, he has revealed that he had received information from the Directorate of Revenue Intelligence (DRI) that a big quantity of automatic weapons would be smuggled into India by the ISI alongwith contraband, gold and silver within 15-30 days at Vasai, Dadar Pen around Bombay, Shrivardhan, Bankot, Ratanagiri and along the southern beaches of Goa. In view thereof, he had sent letter dated 25.1.1993 (Ext. 1536) to the appellant (A- 102), and had also spoken to him over the telephone on the very same day, and had cautioned him to keep a close watch and remain highly alert regarding the possibility of the landing of arms alongwith the other contraband. He (PW-470) had further advised A-102 to pay close attention to the situation, and to make an attempt to seize the weapons as well as the contraband. In the event of seizure of such goods, the officer (A-102) would be rewarded, and a lucrative reward would also be given to the person who furnished any requisite information, and that it was for this purpose, that the officers of the customs department were mixing closely with the smugglers so as to win their confidence and dupe them into giving them such information. The witness further revealed that the appellant (A-102) and Sh. S.N. Thapa (dead), had kept him informed about the steps taken in this regard.
422. Deposition of Yashwant Balu Lotale (PW-154):
In his statement he has revealed that he and the appellant (A- 102), were working as Assistant Collectors of Customs and he has deposed that he had gone alongwith the appellant (A-102) and M.S. Sayyed (A-90) on 6.1.1993 after leaving the Alibagh office and that they had carried out the work of collecting intelligence by patrolling areas until 1.00 a.m. on 7.1.1993. Thus, he has deposed in favour of the appellant (A-102).
423. Deposition of Sitaram Maruti Padwal (PW-146):
He was inspector of Customs and was called by the appellant (A-102) to his cabin in September 1992, and he (A-102) had enquired as to whether the penalty of Rs.1 lac imposed upon Dawood Phanse (A-14) had been recovered. The witness, after checking the record, informed the appellant (A-102) that the penalty had not been recovered. On 11.2.1993, three parties were formed for patrolling and in one such party, he (PW-146) was also included. The appellant (A-102), Sayyed (A-90) and the witness (PW-146) had gone to the residence of Dadabhai (A-17). On being informed, Dadabhai Parkar (A-17) came and met the appellant (A- 102) who remained seated in the car. A discussion had ensued between Dadabhai (A-17) and the appellant (A-102). From there they came to the Rest House, where A-102 met a person sent by Dawood Phanse (A-14).
424. Deposition of Madhukar Krishna Dhandure (PW-153):
In the year 1993, appellant (A-102), was the main officer at the customs office in Alibagh. On 6.1.1993, at about 5.00 p.m. he went for patrolling alongwith A-102.
425. From the evidence referred to hereinabove, the prosecution has established the case against the appellant (A-102) as:
– The appellant knew Mohd. Dossa, Tiger Memon and their landing agents and had been allowing the accused persons to smuggle contraband goods into India, for which he was getting hefty bribes.
– There had been a meeting on 6.1.1993 which was attended by the appellant (A-102), alongwith Sayyed, Mohd. Dossa and other persons. It was decided in the meeting that 7-8 lacs would be paid to the Custom Officers for each landing.
– Landing took place on 9.1.1993, for which the appellant had been informed by Mohd. Dossa through Salim and Feroz that the landing would take place on that date.
– Arms and ammunition sent by Mustafa Majnu landed at Dighi Jetty on 9.1.1993.
– Appellant (A-102) received illegal gratification from the accused persons for this landing and had received the bribe for the landing done on 2.12.1993 by Mohd. Dossa.
– Appellant (A-102) knew about the landing which took place on 3.2.1993 and 7.2.1993 at Shekhadi.
– Appellant had received the information from Sh. Bhardwaj, Collector of Custom on 25.1.1993 that I.S.I. Syndicate located in Middle East and Bombay may try to smuggle contraband and arms in the Districts of Bombay, Raigad and Thane. Despite this specific information he allowed Tiger Memon (AA) and his persons to smuggle arms, explosives etc. in India.
426. After considering the entire evidence on record, the learned Special Judge came to the conclusion as under:
265) Without making any unnecessary dilation about the self-eloquent evidence about which the relevant excerpts are cited earlier it can be safely said that considering the act committed by these 4 accused as reflected from same i.e. participation of A-102 & 90 in Persian Darbar meeting and negotiating with smugglers about the bribe amount to be paid and granting them a charter to smuggle the contraband articles or in fact any thing, the act of A-82 inspite of being present on the spot of interception of goods by police, instead of seizing the same allowing the same to be transported further and in most clandestine manner piloting the convoy carrying the contraband goods on its way to destination uptil a particular spot, advising the policemen in clandestine manner etc., and of A-II3 though not being directly connected with said landing readily & willingly accepting his share of booty from the bribe amount received for the said landing and thereby denoting his implied connivance for the said operation seized earlier; not revealed otherwise in view of himself being not directly involvement in commission of act and considering the further acts committed byA-90, 82 and 113 regarding Shekadi landing and so also to some extent byA-l02 clearly reveals themselves having committed the offence u/s. 3(3) of TADA for which each of them has been charged with at this trial.
266) However, the careful consideration of said evidence and even after taking into consideration the fact that A-102 and A-90 had participated in Persian Darbar meeting; still the evidence having fall short of themselves having connived with the conspirators in this case for commission of said act for the purposes of conspiracy, it will be difficult to hold them or an of them liable for offence of conspiracy for which each of them has been charged with on the basis of evidence surfaced regarding Dighi landing episode and so also about Shekadi landing episode about which the discussion is made later on.
267) Truly speaking receipt of bribe amount for allowing the said operation considered from proper angle also connotes that the act committed by the A- 102, 90, 113 & 82 being primarily for receipt of bribe amount by misusing/abusing their official position would definitely fallout of sphere of the conspiracy for which the relevant operation was organized and effected by other co-accused. The same is obvious as conspirators always join the conspiracy or become members of conspiracy due to being interested in either furthering the object of conspiracy or achieving the object of conspiracy. The payment of the money for commission of act which may have a semblance of furthering object of conspiracy will still not make the concerned liablefor offence of conspiracy. The same is apparent as the act committed by them would be for the purposes of receiving the said payment and not mainly for furthering the object of conspiracy. It is true that their such acts as ruled earlier would amount to commission of offence of an abetment or assistance et for commission of terrorist act by other conspirators and they could be held liable for the same but still they cannot be said to be involved in the conspiracy. In view of the aforesaid, none of the A-102, 90, 113 & 82 can be said to be guilty for commission of offences of conspiracy for which the charge at head 1st ly is framed against them or even otherwise for any smaller conspiracy. However, by way of abundant caution it will be necessary to record that aforesaid observations is limited to above stated 4 accused from Customs dept., and the same is not in relation to A-102 i.e. Addl. Collector of Customs whose case clearly appears to be different i.e. his connection with Tiger Memon being spelt from evidence revealed during Shekadi landing, there being hardly any evidence of himself having received….
427. There is enough evidence on record to show the involvement of the appellant (A-102) in facilitating the smuggling of arms, ammunition and explosives within his jurisdiction in lieu of payment of illegal gratification. We find no reason to interfere with the conclusion of the learned Special Judge. The appeal lacks merit and is accordingly dismissed.
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