Samir Ahmed Hingora (A-53) Vs. The State of Maharashtra, thro. Superintendent of Police, CBI (STF), Bomba
EmailAppeal: Criminal Appeal No. 1104 of 2007
WITH
The State of Maharashtra, through CBI (STF), Bombay v. Samir Ahmed Hingora (A-53)
Criminal Appeal No. 1026 of 2012
WITH
The State of Maharashtra, through CBI (STF), Bombay v. Samir Ahmed Hingora (A-53)
Criminal Appeal No. 1026 of 2012
Petitioner: Samir Ahmed Hingora (A-53)
Respondent: The State of Maharashtra, thro. Superintendent of Police, CBI (STF), Bombay
Apeal: Criminal Appeal No. 1104 of 2007
WITH
The State of Maharashtra, through CBI (STF), Bombay v. Samir Ahmed Hingora (A-53)
Criminal Appeal No. 1026 of 2012
WITH
The State of Maharashtra, through CBI (STF), Bombay v. Samir Ahmed Hingora (A-53)
Criminal Appeal No. 1026 of 2012
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(2)(i)(ii), 3(3), 4, 5, 6, 2, 15 – Penal Code, 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201 and 212 – Arms Act, 1959, Sections 25(1A) and (1B), Sections 3 & 7 – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Prevention of Damage to Public Property Act, 1984, Section 4 – Charges / conviction under In confessional statement, A53 confirmed knowing A (AA) A41 and A139 were the men of A (AA) as disclosed by ‘A’ to A53 on phone from Dubai – A41 in his disclosure statement disclosed that he along with A 53 and A139 searched for a garage to store goods Confession of A96 that appellant A 53 was in touch with Tiger Memon and gave Rs. 50,000 to A96 on his instruction after the blast Even confessional statement of A117 corroborated the statement of A53 PW 218 recognised A53 in crime branch and in court Plea that conviction on the basis of mere acquaintances not justified – Acquaintance with A established – Admitted that on his instruction, A53 distributed arms to A 117 and to third parties also – He arranged garage for storing arms as confirmed by A41 and A 139 in their respective disclosure statements. Held, no merit in submission. Conviction under small conspiracy upheld. Since A 53 is diabetic (on insulin), serious heart patient, having faced protracted trial for 13 years on day to day basis, lost business and good will, served 6 years of sentence, sentence reduced to one already undergone.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(2)(i)(ii), 3(3), 4, 5, 6, 2, 15 – Penal Code, 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201 and 212 – Arms Act, 1959, Sections 25(1A) and (1B), Sections 3 & 7 – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Prevention of Damage to Public Property Act, 1984, Section 4 – Charges / conviction under In confessional statement, A53 confirmed knowing A (AA) A41 and A139 were the men of A (AA) as disclosed by ‘A’ to A53 on phone from Dubai – A41 in his disclosure statement disclosed that he along with A 53 and A139 searched for a garage to store goods Confession of A96 that appellant A 53 was in touch with Tiger Memon and gave Rs. 50,000 to A96 on his instruction after the blast Even confessional statement of A117 corroborated the statement of A53 PW 218 recognised A53 in crime branch and in court Plea that conviction on the basis of mere acquaintances not justified – Acquaintance with A established – Admitted that on his instruction, A53 distributed arms to A 117 and to third parties also – He arranged garage for storing arms as confirmed by A41 and A 139 in their respective disclosure statements. Held, no merit in submission. Conviction under small conspiracy upheld. Since A 53 is diabetic (on insulin), serious heart patient, having faced protracted trial for 13 years on day to day basis, lost business and good will, served 6 years of sentence, sentence reduced to one already undergone.
Held:
A perusal of the aforesaid confession shows that the appellant was aware about the goods which were to be off-loaded and also about the purpose for which the same were to be used which fact is clear from his confession, viz., Anees Bhai telephone to me from Dubai saying that Baba and Saleem are his men. They will bring one vehicle loaded with weapons. You make arrangements for off-loading and hand over weapons to A-117 and the rest will be taken by them for distribution to other persons. Further, inspite of the unwillingness of Hanif Kandawala, he proceeded to help the co-accused. So the contention of the appellant that he was a mere navigator is misplaced and incorrect. (Para 103)
A perusal of the confessional statement of A-41 shows that the appellant helped the co-accused persons to look for a garage where the weapons could be off-loaded and after that they were to be distributed to various persons. (104.2)
Confession of A-96 shows that the appellant was in touch with Tiger Memon even after the blasts and on his instructions, he sent Rs. 50,000/- to A-96 for help. (Para 104.3)
Upon perusal of the entire evidence, it is clear that the appellant was closely associated with Tiger Memon and Anees Ibrahim Kaskar (AA). Further, inspite of the unwillingness shown by his partner – Hanif Kandawala (A-40), the appellant helped the co-accused searched for garages where the weapons were to be off-loaded and concealed whereafter they were to be distributed to A-117 and other persons. In addition to the same, the appellant was also associated with co-accused even after the blasts which fact is clearly discernible from the confession of A-96 wherein she stated that after coming back to her house, her father informed her that owner of Magnum Videos (A-53) had come and gave Rs. 50,000/- for help. (Para 106)
The appellants proximity with Anees Ibrahim established that it was on the instructions of Anees that the arms were delivered to Sanjay Dutt and because of the relationship of Anees and Tiger/Dawood Ibrahim, it establishes a strong link between A-53 and Anees. Though it was argued that there was no proximity between the appellant and Anees, materials relied on by the prosecution clearly prove their relationship. Further, their relationship cannot be simply construed as a business relationship. The materials placed on record by the prosecution, relied on and accepted by the Special Judge show that the appellant was guilty of distributing arms to persons other than Sanjay Dutt. The finding recorded by the trial Judge is that A- 53 not only distributed weapons to A-117 but also to third parties. (Para 107)
The CBI has successfully placed materials to show that the appellant was responsible for arranging garages for the storage of weapons. We have already adverted to the confessional statement of A-41 wherein in categorical terms it was asserted that A-53, the present appellant, along with A-41 and A-139 searched for garages in Pali Hill areas, Bandra where the weapons could be off loaded and after that they were to be distributed to various persons as suggested by Anees Ibrahim. The confessional statement of A-41 also shows that the appellant helped the co-accused persons to look for garages. In such circumstance, it cannot be claimed that at no point of time A-53 was ever aware of what was to be stored in the garages. (Para 108)
Taking note of all these aspects and of the fact that the CBI was not able to establish the charge relating to major conspiracy and also that out of the period of 9 years, A-53 has served nearly six and a half years of sentence and in the light of the ailments and taking note of the fact that the minimum sentence prescribed is 5 years, while confirming the conviction, we reduce the sentence to the period already undergone. (Para 112)
JUDGEMENT:
Judgment (Contd.)
97. Heard Mr. Mukul Rohtagi and Mr.V.K. Bali, learned senior counsel for A-53 and Mr. H.P. Rawal, learned ASG for the CBI. Criminal Appeal No. 1104 of 2007
98. The present appeal is directed against the final judgment and order of conviction and sentence dated 29.11.2006 and 01.06.2007 respectively whereby the appellant (A-53) has been convicted and sentenced by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
99. A common charge of conspiracy was framed against all the co- conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunition, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapon training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
In addition to the above-said principal charge of conspiracy, the appellant was also charged on other counts which are as under:
At head Secondly; The appellant committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:-
(a) The appellant supplied 3 AK-56 rifles, its magazines, ammunitions and hand grenades to Sanjay Dutt (A-117) at his residence at the instance of Anees Ibrahim Kaskar (AA).
(b) The appellant arranged 7 air tickets from East West Travels by making cash payment at the instance of A-1 to facilitate the escape of members of Memon family to Pakistan via Dubai.
At head Thirdly; The appellant acquired and facilitated transport of the above mentioned arms and ammunitions to A-117 with intent to aid terrorist and thereby committed an offence punishable under Section 6 of TADA.
100. The Designated Court found the appellant guilty on the charges mentioned at head firstly (smaller conspiracy) and clause (a) at head secondly. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for 9 years alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years for the commission of offence under Section 3(3) of TADA. (charge firstly)
(ii) The appellant has been convicted for the offence under section 3(3) of TADA for commission of acts mentioned at clause (a) of head secondly, and sentenced to RI for 9 years alongwith a fine of Rs. 1, 00,000/-, in default, to further undergo RI for 3 years. (charge secondly)
Evidence
101. The evidence against the appellant (A-53) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused); and
(iii) testimony of prosecution witness.
Confessional Statement of Samir Ahmed Hingora (A-53)
102. Confessional statement of A-53 under Section 15 of TADA has been recorded on 18.05.1993 (17:00 hrs.) and 20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A perusal of his confessional statement states as under:-
(i) The appellant started a Video Library and Mustafa Dossa @ Mustafa Majnoo (A-138)-brother of Mohd. Dossa (AA), was a member of his Library.
(ii) Tiger Memon used to work with A-138 in his shops at Manish Market and became a friend of A-53.
(iii) The appellant started the business of film distribution and production by the name of Magnum in partnership with Hanif Kandawala (A-40)-since deceased.
(iv) Anees Ibrahim Kaskar (AA) became a member of his Video Library and was referred to by everyone as Anisbhai since he was the brother of Dawood Ibrahim.
(v) A-53 and Tiger Memon used to meet frequently and discuss matters relating to the business.
(vi) A-53 received a payment of Rs. 21.90 lakhs from Ayub Memon sent through someone on 13.03.1993 (one day after the blasts) as advance for purchasing rights of films.
(vii) A-53 had visited Dubai and met Anis Ibrahim many times and sold the rights of many films to M/s Kings Video, managed by Anis. Anis also controls Al-Mansoor Video Company through Chota Rajan.
(viii) On 15.01.1993, Ibrahim Musa Chauhan (A-41) and Abu Salem (A- 139) met A-53 at his office, and gave him a message that they have been directed by Anisbhai to see the appellant regarding the handing over of weapons to A-117 at his residence.
(ix) Anis Ibrahim called the appellant from Dubai and told him that A-41 and A-139 are his men and that they will bring one vehicle loaded with weapons and the appellant has to make arrangements for off-loading and handing over the weapons to A-117, and the rest will be taken by them for distribution to other persons.
(x) Inspite of the unwillingness of Hanif Kandawala, his partner, in order to carry out the instructions, A-53 took A-139 to the residence of A- 117, where A-117 hugged Abu Salem and asked him about the weapons. A-117 then told A-139 to bring the weapons the next day at 7 am.
(xi) On 16.01.1993, A-53 led A-139 and A-41 to the house of Sanjay Dutt. A-139 and A-41 were in a blue maruti van while A-53 was in his own car.
(xii) At the residence of A-117, A-53 saw that the blue van was containing 9 AK-56 rifles and some hand grenades and gave 3 AK-56 rifles and some magazines to A-117. A-117 also asked for some hand grenades which were put in a black bag by A-139.
(xiii) A-139 kept the rifles in a fiat car belonging to A-117. The hand grenades were kept in the car of A-53, and he left the car at A-117s residence and took an auto rickshaw.
(xiv) A-53 collected his car from A-117s residence after 3 days when he called him and informed him that grenades have been taken out.
103. A perusal of the aforesaid confession shows that the appellant was aware about the goods which were to be off-loaded and also about the purpose for which the same were to be used which fact is clear from his confession, viz., Anees Bhai telephone to me from Dubai saying that Baba and Saleem are his men. They will bring one vehicle loaded with weapons. You make arrangements for off-loading and hand over weapons to A-117 and the rest will be taken by them for distribution to other persons. Further, inspite of the unwillingness of Hanif Kandawala, he proceeded to help the co-accused. So the contention of the appellant that he was a mere navigator is misplaced and incorrect.
Confessional Statements of co-accused:
104. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-53) are summarized hereinbelow:
Confessional Statement of Ibrahim Musa Chauhan @ Baba (A-41)
104.1 Confessional statement of A-41 under Section 15 of TADA was recorded on 23.04.1993 (12:45 hrs.) and 25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession shows that:
(i) On 15.01.1993, A-41 and A-139 went to the office of Magnum in order to meet A-53 upon the instructions of Anees who was in Dubai.
(ii) A-53 along with A-41, A-139 and later with A-41 searched for garages in Pali Hill areas, Bandra as suggested by Anees Ibrahim.
(iii) A-53 and A-139 left together on 15.01.1993.
(iv) On 16.01.1993, A-139 came to his house in the morning and they reached the office of A-53 at around 06:30-06:45 a.m. A-139 and A-41 sat in one car followed by the car of A-53 to the house of Sanjay Dutt (A-117).
(v) A-139 opened the van at the residence of A-117 and took out 9 AK-56 rifles, about 80 hand grenades and around 1500/2000 bullets in the presence of A-53 and A-117.
(vi) A-139 kept 3 rifles, 9 magazines, 450 bullets and 20 hand grenades in the car of A-117.
(vii) A-53 kept 20 hand grenades in his car. A-53 also gave a long sports bag to A-41 in which 3 rifles, 16 magazines, 25 hand grenades and 750 bullets were kept.
(ix) A-53 dropped A-41 to his car and after that they left the residence of A-117.
104.2 A perusal of the confessional statement of A-41 shows that the appellant helped the co-accused persons to look for a garage where the weapons could be off-loaded and after that they were to be distributed to various persons.
Confessional Statement of Mobina @ Baya Moosa Bhiwandiwala (A-96)
(i) On the directions of Tiger Memon, owner of Magnum Videos (A-53) had sent Rs. 50,000/- to her residence on one or two occasions.
(iii) After the blast, the owner of Magnum Videos (A-53) had sent Rs. 50,000/- for help.
104.3 The above confession of A-96 shows that the appellant was in touch with Tiger Memon even after the blasts and on his instructions, he sent Rs. 50,000/- to A-96 for help.
Confessional Statement of Sanjay Dutt (A-117)
Confessional statement of A-117 under Section 15 of TADA was recorded on 26.04.1993 (15:30 hrs.) and 28.04.1993 (16:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) A-117 knew A-53 and he was acting in one of his films. A-53 used to frequently come to his house for taking dates.
(ii) A-53 and A-40 repeatedly told A-117 to acquire a firearm from them.
(iii) In mid-January, A-53, A-40 and A-139 came to the house of A-117 at around 09:30 p.m. and told him that the weapons will be delivered the next day. Next day, they again came in the morning with one more person to the residence of A-117.
(iv) At the residence of A-117, in the presence of A-53, A-139 took out weapons and handed it over to him.
(v) A-53 came to his house along with A-40 after 2-3 days when A-117 returned 2 AK-56 rifles to them.
The confession of A-117 corroborates in material particulars with the confession of other co-accused persons.
Deposition of Prosecution Witness:
105. Apart from the aforesaid evidence, the following prosecution witness deposed as under:
Deposition of Pandharinath Hanumanth Shinde (PW-218)
The relevant material in his evidence is as follows:-
(i) PW-218 identified A-53 in the TIP held on 27.05.1993 at the office of Crime Branch.
(ii) PW-218 identified A-53 in the Court.
106. Upon perusal of the entire evidence, it is clear that the appellant was closely associated with Tiger Memon and Anees Ibrahim Kaskar (AA). Further, inspite of the unwillingness shown by his partner – Hanif Kandawala (A-40), the appellant helped the co-accused searched for garages where the weapons were to be off-loaded and concealed whereafter they were to be distributed to A-117 and other persons. In addition to the same, the appellant was also associated with co-accused even after the blasts which fact is clearly discernible from the confession of A-96 wherein she stated that after coming back to her house, her father informed her that owner of Magnum Videos (A-53) had come and gave Rs. 50,000/- for help.
107. Mr. Rohtagi, learned senior counsel for the appellant pointed out that without establishing the pre-requisites as held in the case of State v. Nalini, [JT 1999 (4) SC 160 : (1999) 5 SCC 253], it is only on the ground of acquaintance with the main conspirators and alleged knowledge acquired on phone that after handing over weapons to A-117, the balance would be taken for distribution, for which the appellant has been erroneously convicted under Section 3(3). We are unable to accept the said claim. We have already pointed out the appellants proximity with Anees Ibrahim. It was on the instructions of Anees that the arms were delivered to Sanjay Dutt and because of the relationship of Anees and Tiger/Dawood Ibrahim, it establishes a strong link between A-53 and Anees. Though it was argued that there was no proximity between the appellant and Anees, materials relied on by the prosecution clearly prove their relationship. Further, their relationship cannot be simply construed as a business relationship. The materials placed on record by the prosecution, relied on and accepted by the Special Judge show that the appellant was guilty of distributing arms to persons other than Sanjay Dutt. The finding recorded by the trial Judge is that A- 53 not only distributed weapons to A-117 but also to third parties.
108. The CBI has successfully placed materials to show that the appellant was responsible for arranging garages for the storage of weapons. We have already adverted to the confessional statement of A-41 wherein in categorical terms it was asserted that A-53, the present appellant, along with A-41 and A-139 searched for garages in Pali Hill areas, Bandra where the weapons could be off loaded and after that they were to be distributed to various persons as suggested by Anees Ibrahim. In view of the same, the argument of the learned senior counsel for the appellant is liable to be rejected. The confessional statement of A-41 also shows that the appellant helped the co-accused persons to look for garages. In such circumstance, it cannot be claimed that at no point of time A-53 was ever aware of what was to be stored in the garages.
109. Mr. Rohtagi, learned senior counsel disputed the admissibility of confession made by the appellant and voluntariness of his statement. The Designated Court, on going through the evidence of the officer who recorded his confession, the procedure followed, opportunity given to the appellant, rejected the similar objection raised before him. Upon going through all the materials, we agree with the reasoning of the Special Judge and we are of the view that there is no flaw in the procedure while recording the confession of the appellant.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1026 of 2012
110. Though Mr. Rawal, learned ASG, prayed for conviction of A-53 for the charge framed at head firstly, i.e., larger conspiracy, in view of the above discussion, we are satisfied that the materials available establish his involvement only to the extent of the smaller conspiracy and the Designated Court was justified in arriving at such conclusion and we fully agree with the same, hence, the appeal filed by the State is liable to be dismissed.
Sentence:
111. According to learned senior counsel for A-53, out of 9 years of sentence awarded, he has completed 6 (six and a half) years and there are several extenuating circumstances for reduction of the sentence. They are:
(i) The appellant is a sick person suffering from cardiac problems since 2001;
(ii) He has 6 stents in his arteries;
(iii) The appellant, in addition to heart disease, is a diabetic patient (on insulin). While diabetes on its own may not be a major ailment, it assumes far greater seriousness when coupled with a serious heart ailment.
(iv) The appellant has already faced protracted trial for 13 (thirteen and a half) years on day to day basis. In fact, he has continued attendance after conviction as per bail conditions for further 5 years;
v) The entire business and goodwill of the appellant has been lost.
vi) The appellant has already served about 6 (six and a half) years (without remission).
112. Taking note of all these aspects and of the fact that the CBI was not able to establish the charge relating to major conspiracy and also that out of the period of 9 years, A-53 has served nearly six and a half years of sentence and in the light of the ailments and taking note of the fact that the minimum sentence prescribed is 5 years, while confirming the conviction, we reduce the sentence to the period already undergone.
113. The appeal filed by the accused is disposed of on the above terms.
The appeal filed by the CBI is dismissed.
***************
97. Heard Mr. Mukul Rohtagi and Mr.V.K. Bali, learned senior counsel for A-53 and Mr. H.P. Rawal, learned ASG for the CBI. Criminal Appeal No. 1104 of 2007
98. The present appeal is directed against the final judgment and order of conviction and sentence dated 29.11.2006 and 01.06.2007 respectively whereby the appellant (A-53) has been convicted and sentenced by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
99. A common charge of conspiracy was framed against all the co- conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunition, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapon training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
In addition to the above-said principal charge of conspiracy, the appellant was also charged on other counts which are as under:
At head Secondly; The appellant committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:-
(a) The appellant supplied 3 AK-56 rifles, its magazines, ammunitions and hand grenades to Sanjay Dutt (A-117) at his residence at the instance of Anees Ibrahim Kaskar (AA).
(b) The appellant arranged 7 air tickets from East West Travels by making cash payment at the instance of A-1 to facilitate the escape of members of Memon family to Pakistan via Dubai.
At head Thirdly; The appellant acquired and facilitated transport of the above mentioned arms and ammunitions to A-117 with intent to aid terrorist and thereby committed an offence punishable under Section 6 of TADA.
100. The Designated Court found the appellant guilty on the charges mentioned at head firstly (smaller conspiracy) and clause (a) at head secondly. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for 9 years alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years for the commission of offence under Section 3(3) of TADA. (charge firstly)
(ii) The appellant has been convicted for the offence under section 3(3) of TADA for commission of acts mentioned at clause (a) of head secondly, and sentenced to RI for 9 years alongwith a fine of Rs. 1, 00,000/-, in default, to further undergo RI for 3 years. (charge secondly)
Evidence
101. The evidence against the appellant (A-53) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused); and
(iii) testimony of prosecution witness.
Confessional Statement of Samir Ahmed Hingora (A-53)
102. Confessional statement of A-53 under Section 15 of TADA has been recorded on 18.05.1993 (17:00 hrs.) and 20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A perusal of his confessional statement states as under:-
(i) The appellant started a Video Library and Mustafa Dossa @ Mustafa Majnoo (A-138)-brother of Mohd. Dossa (AA), was a member of his Library.
(ii) Tiger Memon used to work with A-138 in his shops at Manish Market and became a friend of A-53.
(iii) The appellant started the business of film distribution and production by the name of Magnum in partnership with Hanif Kandawala (A-40)-since deceased.
(iv) Anees Ibrahim Kaskar (AA) became a member of his Video Library and was referred to by everyone as Anisbhai since he was the brother of Dawood Ibrahim.
(v) A-53 and Tiger Memon used to meet frequently and discuss matters relating to the business.
(vi) A-53 received a payment of Rs. 21.90 lakhs from Ayub Memon sent through someone on 13.03.1993 (one day after the blasts) as advance for purchasing rights of films.
(vii) A-53 had visited Dubai and met Anis Ibrahim many times and sold the rights of many films to M/s Kings Video, managed by Anis. Anis also controls Al-Mansoor Video Company through Chota Rajan.
(viii) On 15.01.1993, Ibrahim Musa Chauhan (A-41) and Abu Salem (A- 139) met A-53 at his office, and gave him a message that they have been directed by Anisbhai to see the appellant regarding the handing over of weapons to A-117 at his residence.
(ix) Anis Ibrahim called the appellant from Dubai and told him that A-41 and A-139 are his men and that they will bring one vehicle loaded with weapons and the appellant has to make arrangements for off-loading and handing over the weapons to A-117, and the rest will be taken by them for distribution to other persons.
(x) Inspite of the unwillingness of Hanif Kandawala, his partner, in order to carry out the instructions, A-53 took A-139 to the residence of A- 117, where A-117 hugged Abu Salem and asked him about the weapons. A-117 then told A-139 to bring the weapons the next day at 7 am.
(xi) On 16.01.1993, A-53 led A-139 and A-41 to the house of Sanjay Dutt. A-139 and A-41 were in a blue maruti van while A-53 was in his own car.
(xii) At the residence of A-117, A-53 saw that the blue van was containing 9 AK-56 rifles and some hand grenades and gave 3 AK-56 rifles and some magazines to A-117. A-117 also asked for some hand grenades which were put in a black bag by A-139.
(xiii) A-139 kept the rifles in a fiat car belonging to A-117. The hand grenades were kept in the car of A-53, and he left the car at A-117s residence and took an auto rickshaw.
(xiv) A-53 collected his car from A-117s residence after 3 days when he called him and informed him that grenades have been taken out.
103. A perusal of the aforesaid confession shows that the appellant was aware about the goods which were to be off-loaded and also about the purpose for which the same were to be used which fact is clear from his confession, viz., Anees Bhai telephone to me from Dubai saying that Baba and Saleem are his men. They will bring one vehicle loaded with weapons. You make arrangements for off-loading and hand over weapons to A-117 and the rest will be taken by them for distribution to other persons. Further, inspite of the unwillingness of Hanif Kandawala, he proceeded to help the co-accused. So the contention of the appellant that he was a mere navigator is misplaced and incorrect.
Confessional Statements of co-accused:
104. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-53) are summarized hereinbelow:
Confessional Statement of Ibrahim Musa Chauhan @ Baba (A-41)
104.1 Confessional statement of A-41 under Section 15 of TADA was recorded on 23.04.1993 (12:45 hrs.) and 25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession shows that:
(i) On 15.01.1993, A-41 and A-139 went to the office of Magnum in order to meet A-53 upon the instructions of Anees who was in Dubai.
(ii) A-53 along with A-41, A-139 and later with A-41 searched for garages in Pali Hill areas, Bandra as suggested by Anees Ibrahim.
(iii) A-53 and A-139 left together on 15.01.1993.
(iv) On 16.01.1993, A-139 came to his house in the morning and they reached the office of A-53 at around 06:30-06:45 a.m. A-139 and A-41 sat in one car followed by the car of A-53 to the house of Sanjay Dutt (A-117).
(v) A-139 opened the van at the residence of A-117 and took out 9 AK-56 rifles, about 80 hand grenades and around 1500/2000 bullets in the presence of A-53 and A-117.
(vi) A-139 kept 3 rifles, 9 magazines, 450 bullets and 20 hand grenades in the car of A-117.
(vii) A-53 kept 20 hand grenades in his car. A-53 also gave a long sports bag to A-41 in which 3 rifles, 16 magazines, 25 hand grenades and 750 bullets were kept.
(ix) A-53 dropped A-41 to his car and after that they left the residence of A-117.
104.2 A perusal of the confessional statement of A-41 shows that the appellant helped the co-accused persons to look for a garage where the weapons could be off-loaded and after that they were to be distributed to various persons.
Confessional Statement of Mobina @ Baya Moosa Bhiwandiwala (A-96)
(i) On the directions of Tiger Memon, owner of Magnum Videos (A-53) had sent Rs. 50,000/- to her residence on one or two occasions.
(iii) After the blast, the owner of Magnum Videos (A-53) had sent Rs. 50,000/- for help.
104.3 The above confession of A-96 shows that the appellant was in touch with Tiger Memon even after the blasts and on his instructions, he sent Rs. 50,000/- to A-96 for help.
Confessional Statement of Sanjay Dutt (A-117)
Confessional statement of A-117 under Section 15 of TADA was recorded on 26.04.1993 (15:30 hrs.) and 28.04.1993 (16:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) A-117 knew A-53 and he was acting in one of his films. A-53 used to frequently come to his house for taking dates.
(ii) A-53 and A-40 repeatedly told A-117 to acquire a firearm from them.
(iii) In mid-January, A-53, A-40 and A-139 came to the house of A-117 at around 09:30 p.m. and told him that the weapons will be delivered the next day. Next day, they again came in the morning with one more person to the residence of A-117.
(iv) At the residence of A-117, in the presence of A-53, A-139 took out weapons and handed it over to him.
(v) A-53 came to his house along with A-40 after 2-3 days when A-117 returned 2 AK-56 rifles to them.
The confession of A-117 corroborates in material particulars with the confession of other co-accused persons.
Deposition of Prosecution Witness:
105. Apart from the aforesaid evidence, the following prosecution witness deposed as under:
Deposition of Pandharinath Hanumanth Shinde (PW-218)
The relevant material in his evidence is as follows:-
(i) PW-218 identified A-53 in the TIP held on 27.05.1993 at the office of Crime Branch.
(ii) PW-218 identified A-53 in the Court.
106. Upon perusal of the entire evidence, it is clear that the appellant was closely associated with Tiger Memon and Anees Ibrahim Kaskar (AA). Further, inspite of the unwillingness shown by his partner – Hanif Kandawala (A-40), the appellant helped the co-accused searched for garages where the weapons were to be off-loaded and concealed whereafter they were to be distributed to A-117 and other persons. In addition to the same, the appellant was also associated with co-accused even after the blasts which fact is clearly discernible from the confession of A-96 wherein she stated that after coming back to her house, her father informed her that owner of Magnum Videos (A-53) had come and gave Rs. 50,000/- for help.
107. Mr. Rohtagi, learned senior counsel for the appellant pointed out that without establishing the pre-requisites as held in the case of State v. Nalini, [JT 1999 (4) SC 160 : (1999) 5 SCC 253], it is only on the ground of acquaintance with the main conspirators and alleged knowledge acquired on phone that after handing over weapons to A-117, the balance would be taken for distribution, for which the appellant has been erroneously convicted under Section 3(3). We are unable to accept the said claim. We have already pointed out the appellants proximity with Anees Ibrahim. It was on the instructions of Anees that the arms were delivered to Sanjay Dutt and because of the relationship of Anees and Tiger/Dawood Ibrahim, it establishes a strong link between A-53 and Anees. Though it was argued that there was no proximity between the appellant and Anees, materials relied on by the prosecution clearly prove their relationship. Further, their relationship cannot be simply construed as a business relationship. The materials placed on record by the prosecution, relied on and accepted by the Special Judge show that the appellant was guilty of distributing arms to persons other than Sanjay Dutt. The finding recorded by the trial Judge is that A- 53 not only distributed weapons to A-117 but also to third parties.
108. The CBI has successfully placed materials to show that the appellant was responsible for arranging garages for the storage of weapons. We have already adverted to the confessional statement of A-41 wherein in categorical terms it was asserted that A-53, the present appellant, along with A-41 and A-139 searched for garages in Pali Hill areas, Bandra where the weapons could be off loaded and after that they were to be distributed to various persons as suggested by Anees Ibrahim. In view of the same, the argument of the learned senior counsel for the appellant is liable to be rejected. The confessional statement of A-41 also shows that the appellant helped the co-accused persons to look for garages. In such circumstance, it cannot be claimed that at no point of time A-53 was ever aware of what was to be stored in the garages.
109. Mr. Rohtagi, learned senior counsel disputed the admissibility of confession made by the appellant and voluntariness of his statement. The Designated Court, on going through the evidence of the officer who recorded his confession, the procedure followed, opportunity given to the appellant, rejected the similar objection raised before him. Upon going through all the materials, we agree with the reasoning of the Special Judge and we are of the view that there is no flaw in the procedure while recording the confession of the appellant.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1026 of 2012
110. Though Mr. Rawal, learned ASG, prayed for conviction of A-53 for the charge framed at head firstly, i.e., larger conspiracy, in view of the above discussion, we are satisfied that the materials available establish his involvement only to the extent of the smaller conspiracy and the Designated Court was justified in arriving at such conclusion and we fully agree with the same, hence, the appeal filed by the State is liable to be dismissed.
Sentence:
111. According to learned senior counsel for A-53, out of 9 years of sentence awarded, he has completed 6 (six and a half) years and there are several extenuating circumstances for reduction of the sentence. They are:
(i) The appellant is a sick person suffering from cardiac problems since 2001;
(ii) He has 6 stents in his arteries;
(iii) The appellant, in addition to heart disease, is a diabetic patient (on insulin). While diabetes on its own may not be a major ailment, it assumes far greater seriousness when coupled with a serious heart ailment.
(iv) The appellant has already faced protracted trial for 13 (thirteen and a half) years on day to day basis. In fact, he has continued attendance after conviction as per bail conditions for further 5 years;
v) The entire business and goodwill of the appellant has been lost.
vi) The appellant has already served about 6 (six and a half) years (without remission).
112. Taking note of all these aspects and of the fact that the CBI was not able to establish the charge relating to major conspiracy and also that out of the period of 9 years, A-53 has served nearly six and a half years of sentence and in the light of the ailments and taking note of the fact that the minimum sentence prescribed is 5 years, while confirming the conviction, we reduce the sentence to the period already undergone.
113. The appeal filed by the accused is disposed of on the above terms.
The appeal filed by the CBI is dismissed.
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