Shaikh Asif Yusuf Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No.1422 of 2007
Petitioner: Shaikh Asif Yusuf
Respondent: State of Maharashtra
Apeal: Criminal Appeal No.1422 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), 5, 6 Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a) – Charges of conspiracy and of agreeing to keep in notified area four hand grenades given by A49 in an unauthorised manner – Confessional statement of A49 disclosing how he along with appellant 107 and others met Tiger Memon (TM) in Dubai and got weapon training in Pakistan – A107 attended conspiratorial meeting with TM and others – Participated in filling up of RDX in the intervening night of 11-12.3.1993 – PW2 gave appellant 7 hand-grenades, one loaded gun and one bag containing bullet to accomplish the mission – Appellant threw one grenade at Sahar International Airport – A49 gave 4 hand grenades to appellant to keep – Disclosure statement pursuant to which recovery of four hand grenades in heap of broken tiles witnessed by PW40 who signed the panchnama – PW600, a police inspector corroborated evidence of PW40 – Denial by appellant – Plea that recoveries made in open place, accessible to public, cannot be relied upon. Held, appellant led the police to the place where grenades were hidden. It was within the knowledge of the appellant. Though it was a public place but contrabands were hidden. These contrabands were to be used for terrorist activities. Further plea that contrabands were wrapped in carbon paper and appellant did not know the contents of it, cannot be accepted, as there was no reason for appellant to hide them. Conviction under Section 3 (3), 5, 6 of TADA and Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a), maintained.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6 Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a) – Charges of conspiracy and of agreeing to keep in notified area four hand grenades given by A49 in an unauthorised manner – Confessional statement of A49 disclosing how he along with appellant 107 and others met Tiger Memon (TM) in Dubai and got weapon training in Pakistan – A107 attended conspiratorial meeting with TM and others – Participated in filling up of RDX in the intervening night of 11-12.3.1993 – PW2 gave appellant 7 hand-grenades, one loaded gun and one bag containing bullet to accomplish the mission – Appellant threw one grenade at Sahar International Airport – A49 gave 4 hand grenades to appellant to keep – Disclosure statement pursuant to which recovery of four hand grenades in heap of broken tiles witnessed by PW40 who signed the panchnama – PW600, a police inspector corroborated evidence of PW40 – Denial by appellant – Plea that recoveries made in open place, accessible to public, cannot be relied upon. Held, appellant led the police to the place where grenades were hidden. It was within the knowledge of the appellant. Though it was a public place but contrabands were hidden. These contrabands were to be used for terrorist activities. Further plea that contrabands were wrapped in carbon paper and appellant did not know the contents of it, cannot be accepted, as there was no reason for appellant to hide them. Conviction under Section 3 (3), 5, 6 of TADA and Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a), maintained.
Held:
As per the confessional statement of A-49, the appellant (A-107) had gone to Dubai alongwith several other co-conspirators and co- accused to the house of Tiger Memon (AA) and his brother Yakub, and from there he had also gone to Pakistan to receive weapons training, and had infact, received the same. After returning to India, the appellant had attended a conspiratorial meeting that had been held at a flat on Bandra Hill Road, on 9.3.1993 alongwith other 10 other accused, including Tiger Memon (AA), Javed Chikna, Anwar and Usman (PW.2). (Para 126)
The appellant (A-107) had participated in filling up RDX which had been duly mixed with steel scrap, alongwith the other co-accused in the intervening night of 11th and 12th March, 1993. On 12.3.1993, Usman (PW.2) had given him 7 hand-grenades, one loaded gun and a small plastic bag that had contained bullets, and had directed him to go on his mission. He had gone to the Sahar International Airport, and had thrown a hand-grenade. The co-accused (A-49) had given the appellant (A-107), 4 hand-grenades and had told him to keep the same with him for some time. (Para 126.1)
On the basis of the disclosure statement of the appellant (A-107), the police party had taken him and the panch witnesses in a van, and the said van had been stopped at a place upon a request made by the appellant (A-107). It was a heap, in which there lay broken tiles. The appellant (A-107) had removed the other things and the tiles, and had taken out a plastic bag which had contained 4 hand-grenades. (Para 127)
Undoubtedly, the appellants disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden. (Para 133)
Nasim Ashraf Shaikh Ali Barmare (A-49) in his confessional statement, has disclosed that he had handed over the remaining hand- grenades to the appellant. As the said contraband could not have been used other than for the aforementioned terrorist activities, the submission advanced on behalf of the appellant, stating that it was not proved that the contraband so hidden were to be used for terrorist activities, cannot be accepted. In light of the facts and circumstances of the case, it cannot be believed that the appellant had not been aware of the contents of the contraband, even though the same had been wrapped in carbon paper. (Para 134)
Had the appellant not been aware of the contents of the contraband, there would have been no occasion for him to hide the same away after digging up the earth, and further to yet again, cover up the said material with earth and heaps of items. Thus, we are of the view that the appellant had been fully aware of the contents thereof. (Para 134.1)
JUDGEMENT:
Judgment (Contd.)
120. This appeal has been preferred against the judgment and order dated 31.5.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993, convicting the appellant under Sections 3(3), 5 and 6 TADA and under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms Act.
121. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he has been charged under Section 3(3) TADA, for agreeing to keep in his possession, in the notified area, 4 hand-grenades that had been given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-49), in an unauthorised manner, which had formed a part of the consignment that had been smuggled into India by the conspirators knowingly and intentionally, for the purpose of committing terrorist acts.
B. The appellant (A-107) has also been charged under Sections 5 and 6 TADA, and Sections 3, 7 and 25(1-A)(1-B)(a) of the Arms Act for keeping the aforementioned 4 hand-grenades that had been given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-49), in his possession.
C. The appellant has been convicted under section 3(3) TADA and has been sentenced to suffer RI for 5 years, and has been ordered to pay a fine of Rs.25,000/-, and in default to suffer further RI for 6 months. The appellant has also been convicted under Section 5 TADA and has been sentenced to suffer RI for 8 years, and to pay a fine of Rs.50,000/-, and in default to suffer further RI for one year. The appellant has also been convicted under Section 6 TADA and has been sentenced to suffer RI for 8 years, and to pay a fine of Rs.50,000/- and in default to suffer further RI for one year. The appellant has also been found guilty under the provisions of the Arms Act, but no separate sentence has been awarded for the said offences. All the sentences have been directed to run concurrently.
Hence, this appeal.
122. Shri Mushtaq Ahmad, learned counsel appearing for the appellant, has submitted that the appellant has been convicted by the learned Special Judge merely on the basis of surmises and conjectures and there is no evidence on the basis of which, the said conviction can be sustained. Chandrakant Atmaram Vaidya (PW-40), who has been relied upon for conviction had been a stock panch witness, and had been easily available to the police. The recovery had been made from an open area, to which a large number of persons had access. Therefore, the recovery and the panchnama in respect thereof, including the disclosure statement that has allegedly been made by the appellant cannot be relied upon. The appellant has been handicapped since his childhood, and thus, his right hand is impaired. Furthermore, he has already served more than 5 years in jail. Thus, the appeal deserves to be allowed.
123. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has submitted that the recovery had been made on the basis of the disclosure statement of the appellant, and had been made strictly in accordance with the requirements of Section 27 of the Evidence Act, and therefore, has rightly been relied upon. No fault can be found with the impugned judgment and order. The appeal lacks merit and is therefore, liable to be dismissed.
124. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
125. Evidence against the appellant (A-107):
(a) Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
(b) Deposition of Chandrakant Atmaram Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu Rathod (PW-600)
The appellant (A-107) has not made any confession.
126. Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49):
As per the confessional statement of A-49, the appellant (A-107) had gone to Dubai alongwith several other co-conspirators and co- accused to the house of Tiger Memon (AA) and his brother Yakub, and from there he had also gone to Pakistan to receive weapons training, and had infact, received the same. The appellant had learnt how to explode black soap (RDX) with a safety fuse, or by a battery after inserting into the chemical, a small aluminium coloured detonator. He had returned to India via Dubai. In Dubai, Tiger Memon (AA) had spoken to the appellant and to the other accused, about the atrocities that had been committed by the Hindus, against the Muslims in Bombay, between December, 1992 and January, 1993. After returning to India, the appellant had attended a conspiratorial meeting that had been held at a flat on Bandra Hill Road, on 9.3.1993 alongwith other 10 other accused, including Tiger Memon (AA), Javed Chikna, Anwar and Usman (PW.2).
126.1 The appellant (A-107) had participated in filling up RDX which had been duly mixed with steel scrap, alongwith the other co-accused in the intervening night of 11th and 12th March, 1993. On 12.3.1993, Usman (PW.2) had given him 7 hand-grenades, one loaded gun and a small plastic bag that had contained bullets, and had directed him to go on his mission. He had gone to the Sahar International Airport, and had thrown a hand-grenade there which owing to the fact that it could not reach its target, had exploded mid-way. Nasim Ashraf Shaikh Ali Barmare @ Yusuf (A-49) who had been accompanying the appellant (A-107) at the said time, had gotten frightened, and both of them had thus, run away from there on a motor cycle. The co-accused (A-49) had given the appellant (A-107), 4 hand-grenades and had told him to keep the same with him for some time.
127. Chandrakant Atmaram Vaidya (PW-40), a panch witness, has deposed that on 8.4.1993, he had gone to the Mahim Police Station, upon being called there through a police havaldar. Here, P.I. Rathod had told him that the person who was sitting there, was actually an accused in the Worli Blast case, and wanted to make a disclosure statement voluntarily. Upon being asked by the witness, the accused had told him his name, which was Asif Yusuf Shaikh (A-107), and he further told him that he could aid in the recovery of certain bombs that had been hidden by him. The police officer had recorded the statement of the accused and had prepared the memorandum panchnama, which had then been signed by the panch witnesses. On the basis of the disclosure statement of the appellant (A-107), the police party had taken him and the panch witnesses in a van, and the said van had been stopped at a place upon a request made by the appellant (A-107). It was a heap, in which there lay broken tiles. The appellant (A-107) had removed the other things and the tiles, and had taken out a plastic bag which had contained 4 hand-grenades. The police inspector had prepared a panchnama, which had been read over to the panch witnesses and had been duly signed by them. The four labels, that had been duly signed by the police inspector, had then been affixed to these bombs. All of them had then returned to the Mahim Police Station. This witness has admitted in his cross-examination, that he had also been the panch witness in another enquiry that had been made on 8.4.1993, wherein Ayub Ibrahim Qureshi (A-49) had made a disclosure statement, on the basis of which a recovery had been was made from a nearby area (Exh.127-128). It has further been explained by him, that the place from which the recovery had been made, was an open area and that a large number of persons had access to it. The witness has further stated that after the recovery in the first case was over, the police havaldar had come and taken him back to become the panch witness for another case, as during those late hours, no other panch witness had been available.
128. Ratansingh Kalu Rathod (PW-600), a police Inspector corroborated the evidence of Chandrakant Vaidya (PW-40), and has narrated how the disclosure statement had been recorded, how the memorandum panchnama had been prepared and also how, the said recoveries had been made. He has pointed out that at the place of recovery, the accused had removed items from the heaps, and that after digging, had taken a bag containing four hand-grenades. He has also given full details as regards how the two recoveries had been made in a close proximity of time, and from nearby places.
129. In his statement made under Section 313 of the Code of Criminal Procedure, 1973, the appellant (A-107) has pleaded false implication in the said case, and has stated that the said recoveries had not been made at his instance, as he had never been in possession of any hand- grenades.
130. On the issue of recovery, this Court in State of H.P. v. Jeet Singh (supra), held :
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
131. In State of Maharashtra v. Bharat Fakira Dhiwar, (supra), this court dealt with the issue.
132. Thus, in view of the above, the submission made by Mr. Mushtaq Ahmed, stating that as the recovery had been made from an open place to which all persons had access, cannot be relied upon and is not worth acceptance.
133. Undoubtedly, the appellants disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden.
134. Nasim Ashraf Shaikh Ali Barmare (A-49) in his confessional statement, has disclosed that he had handed over the remaining hand- grenades to the appellant. As the said contraband could not have been used other than for the aforementioned terrorist activities, the submission advanced on behalf of the appellant, stating that it was not proved that the contraband so hidden were to be used for terrorist activities, cannot be accepted. In light of the facts and circumstances of the case, it cannot be believed that the appellant had not been aware of the contents of the contraband, even though the same had been wrapped in carbon paper.
134.1 Furthermore, had the appellant not been aware of the contents of the contraband, there would have been no occasion for him to hide the same away after digging up the earth, and further to yet again, cover up the said material with earth and heaps of items. Thus, we are of the view that the appellant had been fully aware of the contents thereof.
135. In view of the above, we concur with the conclusion that has been reached by the learned Special Judge. Thus, the present appeal lacks merit, and is accordingly dismissed.
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120. This appeal has been preferred against the judgment and order dated 31.5.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993, convicting the appellant under Sections 3(3), 5 and 6 TADA and under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms Act.
121. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he has been charged under Section 3(3) TADA, for agreeing to keep in his possession, in the notified area, 4 hand-grenades that had been given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-49), in an unauthorised manner, which had formed a part of the consignment that had been smuggled into India by the conspirators knowingly and intentionally, for the purpose of committing terrorist acts.
B. The appellant (A-107) has also been charged under Sections 5 and 6 TADA, and Sections 3, 7 and 25(1-A)(1-B)(a) of the Arms Act for keeping the aforementioned 4 hand-grenades that had been given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-49), in his possession.
C. The appellant has been convicted under section 3(3) TADA and has been sentenced to suffer RI for 5 years, and has been ordered to pay a fine of Rs.25,000/-, and in default to suffer further RI for 6 months. The appellant has also been convicted under Section 5 TADA and has been sentenced to suffer RI for 8 years, and to pay a fine of Rs.50,000/-, and in default to suffer further RI for one year. The appellant has also been convicted under Section 6 TADA and has been sentenced to suffer RI for 8 years, and to pay a fine of Rs.50,000/- and in default to suffer further RI for one year. The appellant has also been found guilty under the provisions of the Arms Act, but no separate sentence has been awarded for the said offences. All the sentences have been directed to run concurrently.
Hence, this appeal.
122. Shri Mushtaq Ahmad, learned counsel appearing for the appellant, has submitted that the appellant has been convicted by the learned Special Judge merely on the basis of surmises and conjectures and there is no evidence on the basis of which, the said conviction can be sustained. Chandrakant Atmaram Vaidya (PW-40), who has been relied upon for conviction had been a stock panch witness, and had been easily available to the police. The recovery had been made from an open area, to which a large number of persons had access. Therefore, the recovery and the panchnama in respect thereof, including the disclosure statement that has allegedly been made by the appellant cannot be relied upon. The appellant has been handicapped since his childhood, and thus, his right hand is impaired. Furthermore, he has already served more than 5 years in jail. Thus, the appeal deserves to be allowed.
123. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has submitted that the recovery had been made on the basis of the disclosure statement of the appellant, and had been made strictly in accordance with the requirements of Section 27 of the Evidence Act, and therefore, has rightly been relied upon. No fault can be found with the impugned judgment and order. The appeal lacks merit and is therefore, liable to be dismissed.
124. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
125. Evidence against the appellant (A-107):
(a) Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
(b) Deposition of Chandrakant Atmaram Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu Rathod (PW-600)
The appellant (A-107) has not made any confession.
126. Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49):
As per the confessional statement of A-49, the appellant (A-107) had gone to Dubai alongwith several other co-conspirators and co- accused to the house of Tiger Memon (AA) and his brother Yakub, and from there he had also gone to Pakistan to receive weapons training, and had infact, received the same. The appellant had learnt how to explode black soap (RDX) with a safety fuse, or by a battery after inserting into the chemical, a small aluminium coloured detonator. He had returned to India via Dubai. In Dubai, Tiger Memon (AA) had spoken to the appellant and to the other accused, about the atrocities that had been committed by the Hindus, against the Muslims in Bombay, between December, 1992 and January, 1993. After returning to India, the appellant had attended a conspiratorial meeting that had been held at a flat on Bandra Hill Road, on 9.3.1993 alongwith other 10 other accused, including Tiger Memon (AA), Javed Chikna, Anwar and Usman (PW.2).
126.1 The appellant (A-107) had participated in filling up RDX which had been duly mixed with steel scrap, alongwith the other co-accused in the intervening night of 11th and 12th March, 1993. On 12.3.1993, Usman (PW.2) had given him 7 hand-grenades, one loaded gun and a small plastic bag that had contained bullets, and had directed him to go on his mission. He had gone to the Sahar International Airport, and had thrown a hand-grenade there which owing to the fact that it could not reach its target, had exploded mid-way. Nasim Ashraf Shaikh Ali Barmare @ Yusuf (A-49) who had been accompanying the appellant (A-107) at the said time, had gotten frightened, and both of them had thus, run away from there on a motor cycle. The co-accused (A-49) had given the appellant (A-107), 4 hand-grenades and had told him to keep the same with him for some time.
127. Chandrakant Atmaram Vaidya (PW-40), a panch witness, has deposed that on 8.4.1993, he had gone to the Mahim Police Station, upon being called there through a police havaldar. Here, P.I. Rathod had told him that the person who was sitting there, was actually an accused in the Worli Blast case, and wanted to make a disclosure statement voluntarily. Upon being asked by the witness, the accused had told him his name, which was Asif Yusuf Shaikh (A-107), and he further told him that he could aid in the recovery of certain bombs that had been hidden by him. The police officer had recorded the statement of the accused and had prepared the memorandum panchnama, which had then been signed by the panch witnesses. On the basis of the disclosure statement of the appellant (A-107), the police party had taken him and the panch witnesses in a van, and the said van had been stopped at a place upon a request made by the appellant (A-107). It was a heap, in which there lay broken tiles. The appellant (A-107) had removed the other things and the tiles, and had taken out a plastic bag which had contained 4 hand-grenades. The police inspector had prepared a panchnama, which had been read over to the panch witnesses and had been duly signed by them. The four labels, that had been duly signed by the police inspector, had then been affixed to these bombs. All of them had then returned to the Mahim Police Station. This witness has admitted in his cross-examination, that he had also been the panch witness in another enquiry that had been made on 8.4.1993, wherein Ayub Ibrahim Qureshi (A-49) had made a disclosure statement, on the basis of which a recovery had been was made from a nearby area (Exh.127-128). It has further been explained by him, that the place from which the recovery had been made, was an open area and that a large number of persons had access to it. The witness has further stated that after the recovery in the first case was over, the police havaldar had come and taken him back to become the panch witness for another case, as during those late hours, no other panch witness had been available.
128. Ratansingh Kalu Rathod (PW-600), a police Inspector corroborated the evidence of Chandrakant Vaidya (PW-40), and has narrated how the disclosure statement had been recorded, how the memorandum panchnama had been prepared and also how, the said recoveries had been made. He has pointed out that at the place of recovery, the accused had removed items from the heaps, and that after digging, had taken a bag containing four hand-grenades. He has also given full details as regards how the two recoveries had been made in a close proximity of time, and from nearby places.
129. In his statement made under Section 313 of the Code of Criminal Procedure, 1973, the appellant (A-107) has pleaded false implication in the said case, and has stated that the said recoveries had not been made at his instance, as he had never been in possession of any hand- grenades.
130. On the issue of recovery, this Court in State of H.P. v. Jeet Singh (supra), held :
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
131. In State of Maharashtra v. Bharat Fakira Dhiwar, (supra), this court dealt with the issue.
132. Thus, in view of the above, the submission made by Mr. Mushtaq Ahmed, stating that as the recovery had been made from an open place to which all persons had access, cannot be relied upon and is not worth acceptance.
133. Undoubtedly, the appellants disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden.
134. Nasim Ashraf Shaikh Ali Barmare (A-49) in his confessional statement, has disclosed that he had handed over the remaining hand- grenades to the appellant. As the said contraband could not have been used other than for the aforementioned terrorist activities, the submission advanced on behalf of the appellant, stating that it was not proved that the contraband so hidden were to be used for terrorist activities, cannot be accepted. In light of the facts and circumstances of the case, it cannot be believed that the appellant had not been aware of the contents of the contraband, even though the same had been wrapped in carbon paper.
134.1 Furthermore, had the appellant not been aware of the contents of the contraband, there would have been no occasion for him to hide the same away after digging up the earth, and further to yet again, cover up the said material with earth and heaps of items. Thus, we are of the view that the appellant had been fully aware of the contents thereof.
135. In view of the above, we concur with the conclusion that has been reached by the learned Special Judge. Thus, the present appeal lacks merit, and is accordingly dismissed.
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