State of Maharashtra through CBI Vs. Asfaq Kasam Hawaldar
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay blast case – Charges under Section 3(3) TADA and conspiracy – Allegedly A-38 along with his co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shrivardhan District for being used in commission of terrorist acts – He transported arms, ammunition and explosives on 7.2.1993 which were smuggled into the country by ‘T’ and associates for commission of terrorist acts in truck driven by A38 from Shekhadi to Wangni Tower – His acquittal, challenged – Owner of the truck not made an accused or witness by prosecution – Confessional statement of A62 that A38 was driver not corroborated by any one. Held acquittal cannot be interfered with.
53. This appeal has been preferred against the final judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting the respondent (A-38) charged for larger conspiracy and under Section 3(3) TADA.
54. In addition to the charge of conspiracy, Respondent (A-38) has also been charged for the commission of offences punishable u/s 3(3) TADA.
55. The case of the prosecution against him has been that:
A. The accused (A-38) along with his co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shekhadi, Taluka: Shrivardhan District: Raigad, which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon (AA) and associates for being used in commission of terrorist acts.
B. That the accused (A-38) transported arms, ammunition and explosives which took place on 7.2.1993 which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates for commission of terrorist acts in motor truck no. MHT 6745 driven by this accused from Shekhadi to Wangni Tower.
C. The Special Judge after conclusion of the trial acquitted the respondent of all the charges.
Hence, this appeal.
56. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that as the respondent had been the driver of the vehicle which carried the contraband, i.e., arms, ammunition and explosives and therefore, there was no reason for his acquittal by the Designated Court.
57. Per contra, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that there is nothing on record to show that the respondent was driving the alleged vehicle on that particular day. The registered owner of the vehicle was neither made an accused nor a witness in the case and no material had been placed on record to show that on the fateful day the respondent was driving the vehicle. Thus, the findings of the learned Designated Court do not require any interference.
58. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
59. He revealed that he was working as a Chowkidar at Wangni Tower and came in contact with the smugglers and facilitated their activities many a times for loading and unloading the contraband smuggled by them. He (A-62) used to serve them tea and food. On being asked by Dawood he (A-62) had agreed to help the smugglers in loading and unloading at the said tower for consideration. On 9.1.1993 at 8 hrs. in the night one Maruti car entered the premises of the tower and Sarfaraz (A-55), son of Dawood Phanse got down from the Car and asked him (A-62) to prepare tea. He prepared tea and served the same to 9-10 persons. Tiger Memon (AA) was also with them. After having tea they went away and came back at 12 OClock in the night with one truck and a tempo, a jeep and a Maruti car. Tiger Memon (AA) and his associates Iqbal, Anwar, Munna, Sharif alighted from the vehicles and then the contraband was reloaded from the truck to the tempo. Tiger Memon (AA) had given his men guns and pistols in their hands and after reloading the contraband they all went away. On 7.2.1993, he came to know through Sharif that Dawood Phanses (A-14) contraband was about to come. The accused (A-62) informed his other colleagues at about 9.30 in the night. He came alongwith More from the tower and waited at the Kuchha road for them. After sometime a truck, followed by three jeeps, a rickshaw and two motorcycles came there. Subsequently, a truck and a jeep carrying some goods also came to the tower. The truck carrying the goods was owned by one Hasan Adhikari, r/o Mhasla and was driven by Asfaq Kasam Hawaldar (A-38). Alongwith the truck, Dawood Phanse (A-62), Dadamiya Parkar (A-17), Sharif Adhikari, Abdul Gharatkar were there in a jeep. Tiger Memon and his above-mentioned associates carrying guns and pistols got down from another jeep. Sarfaraz Phanse (A-55), Khalil Nazir and Sajjad Nazir kept the watch during this period. After transferring the goods from one vehicle to another all vehicles left from there. The wooden packings of the goods were burnt in the ditch near the tower.
60. Deposition of Vyankatesh Hirba (PW.588) stated that he made the recovery of the truck used in the said offence.
61. The Designated Court has acquitted the respondent (A-38) of the said charges only on the ground that the truck was owned by Hasan Adhikari and the prosecution did not consider it proper to make Hasan Adhikari as an accused or as a witness to find out as to whether the respondent (A-38) had been a regular driver with him and as to whether on that particular date he was on duty. No person had identified him as he was driving the said vehicle on the said date. The confessional statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by any other witness/accused.
62. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
63. We find no cogent reason to interfere with the order passed by the Designated Court and the appeal is accordingly dismissed.