State of Maharashtra through CBI Vs. Krishna Sadanand Mokal & Ors.
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 (I-A), (l-B)(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 – Charges under Section 3(3), TADA – Allegation of conspiracy and of assisting and facilitating smuggling and transportation of arms and ammunition in lieu of bribe – Respondent-police constables, posted in January 1993 at Shrivardhan – Allegedly contraband smuggled on 8th/9th.1.1993 – Same transported to Bombay in trucks, which though intercepted by police of Shrivardhan headed by inspector A-116, permitted to go after agreement to pay Rs.7,00,000/- as a bribe – Initially 5 silver ingots as security paid, later same returned and negotiated amount paid – Respondents-constables (along with other accused police officials) tried but acquitted as no evidence found to show that they were members of the Shrivardhan Police Station which had intercepted the trucks – None of the witnesses named any of them – Those named, stood convicted – As per evidence, team headed by A116 had 6-7 constables – Plea of alibi by respondents that they were on police patrolling in villages, falsified by sarpanchas of villages – Whether this can be a basis of conviction in absence of Test Identification Parade or identification by any of the witnesses/accused in court. Held, no. Falsification of plea of alibi does not show that they were part of the team that intercepted the trucks carrying contrabands.
The learned Designated Court dealt with the issue elaborately and came to the conclusion that there was no material to connect the respondents with the aforesaid incident and it was not safe to presume that the respondents were also the members of the police team which intercepted the said trucks carrying contraband. (Para 37)
The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied. (Para 38)
27. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA, acquitting the respondents of all the charges under TADA and Arms Act.
28. Facts and circumstances giving rise to this appeal are that all the respondents had been working as police constables in the Police Department of Bombay and at the relevant time, i.e., January 1993 were posted as constables at Police Station, Shrivardhan. After the Bombay blast on 12.3.1993, they had been charged for conspiracy in general as well as under Section 3(3) TADA and other charges for assisting and facilitating the accused persons to smuggle and transport the contraband articles, i.e., arms and ammunition and permitting the said goods to be taken further in lieu of bribe.
28.1 The case against the said respondents had been that on 8th/9th of January, 1993, the arms, ammunition and explosives were smuggled in India and after the landing at Dighi Jetty when the contraband were being transported to Bombay in trucks, the said trucks were intercepted by the police of Shrivardhan Police Station headed by Inspector Patil (A-116). The police checked those vehicles for 10-15 minutes and permitted them to go after completing a detailed bargain with the conspirators/accused and reaching the settlement of the huge amount of Rs.7,00,000/- as a bribe. The accused did not have cash thus, they had given 5 silver ingots as security which were subsequently returned by the police officials to the accused persons after the negotiated amount was paid. The respondents/constables were also put to trial alongwith other co-accused (police officials) but they have been acquitted only on the ground that there was no iota of evidence to show that the respondents herein were also members of the Shrivardhan Police Station which had intercepted those trucks.
Hence, this appeal.
29. Mr. Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that the respondents were police constables posted at Police Station Shrivardhan and therefore, they were also the members of the party which intercepted the trucks carrying the contraband. The learned Designated Court failed to appreciate the evidence on record and has wrongly acquitted the respondents of the charges leveled against them.
30. Ms. Farhana Shah, learned counsel appearing for the respondents has submitted that it is nobodys case that all the police force posted at Shrivardhan Police Station had gone to check/intercept the trucks carrying the contraband. In the instant case, there is nothing on record to show that either of the respondents was a member of the party which intercepted the trucks carrying the contraband. Thus, the appeal is liable to be dismissed.
31. We have considered the rival submissions made by learned counsel for the parties and perused the record.
32. In the confession of Mohmed Kasam Lajpuria (A-136) recorded by Superintendent of Police, CBI at New Delhi Camp, Mumbai, he disclosed that he was a close associate of Tiger Memon (AA) etc. and had been indulged in various criminal activities including smuggling. He had been participating in the landings and facilitating the transportation of the contraband and smuggled goods. In January, 1993, he planned a landing alongwith Mohd. Dossa, Salim Kutta (A-134), Firoz, Qyum Sajani, Arif Lambu and the landing took place at Dighi Jetty. After getting the contraband goods from the sea to the seashore the same were loaded in two trucks arranged by Uttam Potdar (A-30). The trucks were intercepted by police headed by Inspector Patil and 6-7 constables from P.S. Shrivardhan. Inspector Patil (A-116) asked Saleem and Firoz whether they were landing and transporting the contraband without making any payment to the police. Meanwhile, Uttam Potdar (A-30) also came alongwith one Custom Officer named Gaurav (A-82) in a jeep. Uttam Potdar (A-30) spoke to the police people and it was decided that a sum of Rs.8,00,000/- should be paid to the police. As the accused persons did not have Rs.8,00,000/- in cash, the police kept 5 silver ingots with them as a security. Inspector Patil (A-116) asked them to take the silver ingots back after making the payment in cash.
33. Uttam Potdar (A-30) revealed that he was a very close associate of smugglers including Tiger Memon (AA) and Mechanic Chacha (A-136) etc., and had been participating in landing and transportation of the contraband. He was called by Shri R.K. Singh, Assistant Collector (A- 102) on 4.12.1993 through a custom sepoy and asked about the earlier days landing. Shri Gurav, Custom Inspector (A-82) also had contact with the said accused (A-30) and after negotiating, it was decided to settle the issue of money. Accordingly, the matter was settled and amount was paid to the custom officers. This accused further revealed the mode of payment per landing to the Shrivardhan Police Station as well as the custom police. He revealed the incident on 9.1.1993 when the trucks were intercepted by the Shrivardhan Police. The vehicles were checked by two Hawaldars, named Mali and Muneshwar. He fully corroborated the statement of Mechanic Chacha (A-136) that as they had no money to pay to the police, they paid the silver ingots as security.
34. Dilip Pansare (PW.97) deposed that he was working as a mechanic in the State Transport Corporation at Shrivardhan Depot. He was close associate of Uttam Potdar (A-30). He accompanied Uttam Potdar (A-30) on 9.1.1993 when the vehicles carrying the contraband after landings were intercepted by Shrivardhan Police Station. He deposed that the vehicles after interception were thoroughly checked by two constables. The police team was headed by Inspector Patil (A-116) and there were 6- 7 constables with him. He also gave full details of negotiation/settlement of the amount of bribe for releasing the vehicles and giving 5 silver ingots as security as they did not have the cash. Thus, he corroborated the statement of Uttam Potdar (A-30) as well as of Mechanic Chacha (A-136).
35. In the confessions of Dawood Phanse (A-14), he has deposed that he was a landing agent and was facilitating transportation of smuggled goods of various smugglers in partnership with Sharif Abdul Afoor Parkar (A-17) including Tiger Memon (AA). This accused (A-14) and Dadabhai (A-17) corroborated the version so far as this case is concerned only to the extent of payment of money to Shrivardhan Police Station for two landings. Mohd. Salim (A-134) corroborated the case to the extent of interception of vehicles carrying the contraband on 9.1.1993 by Shrivardhan Police at Gongdhar Phata. The police team consisted of one Inspector and few constables.
36. If the evidence of all the witnesses is read conjointly, it becomes evident that none of the witnesses had named either of the respondents. The other persons of the police team who had been named stood convicted. The respondents have been acquitted on the ground that in absence of Test Identification Parade or their identification by any of the witnesses/accused in the court, it was not safe to make a guess work that they or either of them could also be member(s) of the said police team which intercepted the contraband. The evidence on record reveal that police team headed by Inspector Patil was having 6-7 constables. There is nothing on record on the basis of which it could be assumed that the respondents were the members of the said team. It is nobodys case that the total strength of the Shrivardhan Police Station was 7 or 8, so it can be presumed that all except one or two might have come. The Sarpanchas of 7 villages in close proximity, deposed in court to falsify the alibi taken by the respondents that they were on police patrolling in their villages. Statements made by the Sarpanchas that none of the respondents had visited their village on patrolling cannot be a proof that the respondents were members of the team, which intercepted the said trucks.
37. The learned Designated Court dealt with the issue elaborately and came to the conclusion that there was no material to connect the respondents with the aforesaid incident and it was not safe to presume that the respondents were also the members of the police team which intercepted the said trucks carrying contraband.
38. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
39. In view of the above, we do not see any cogent reason to interfere with the impugned judgment. The appeal lacks merit and is, accordingly, dismissed.