State of Maharashtra through CBI Vs. Sarfaraj Dawood Phanse
EmailAppeal: Criminal Appeal No. 597 of 2011
Petitioner: State of Maharashtra through CBI
Respondent: Sarfaraj Dawood Phanse
Apeal: Criminal Appeal No. 597 of 2011
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay blast case – Charges of conspiracy – Acquittal – Appeal by State – No confessional statement by respondent Confessional statement of co-accused viz. A11, A14, A18, A61, A62, A90 Statement showing involvement of accused in Shekhadi landing and commitment of various nefarious activities Accordingly convicted under Section 3(3), Tada No material to show his involvement in conspiracy. No interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay blast case – Charges of conspiracy – Acquittal – Appeal by State – No confessional statement by respondent Confessional statement of co-accused viz. A11, A14, A18, A61, A62, A90 Statement showing involvement of accused in Shekhadi landing and commitment of various nefarious activities Accordingly convicted under Section 3(3), Tada No material to show his involvement in conspiracy. No interference needed.
Held:
The evidence on record disclosed his involvement and association with Tiger Memon (AA) in landing and transportation, but that is because his father Dawood Phanse (A-14), was the landing agent. The appeal lacks merit, and is accordingly, dismissed. (Para 204)
JUDGEMENT:
191. This appeal has been preferred against the judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast case, Greater Bombay, in the Bombay Blast Case No. 1/93, by which the respondent has been convicted under Section 3(3) TADA and acquitted of the main charge of conspiracy.
192. In addition to the main charge of conspiracy, the respondent (A- 55) has been found guilty for offence punishable under Section 3(3) TADA, and on the said count, he has been convicted and sentenced to suffer RI for 9 years, alongwith a fine of Rs.25,000/-, and in default, to suffer RI for 6 months. However, the respondent has been acquitted of the first charge of conspiracy.
Hence, this appeal.
193. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that acquittal of the respondent on the charge of conspiracy is unwarranted and uncalled for as large number of co-accused, particularly, Abdul Gani Ismail Turk (A-11), Suleman Mohammed Kasam Ghavate (A-18), Ibrahim (A-41), Sajjad Alam (A-61), Tulsi Ram Dhondu Surve (A-62), Mohd. Sultan Sayyed (A-90) and the depositions of Harish Chandra Surve (PW-108) and Vijay Govind More (PW-137) specifically revealed a very deep involvement of the respondent in the offence and the evidence is sufficient warranting his conviction for the charge of conspiracy also. Therefore, the appeal deserves to be allowed.
194. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that he had already served the sentence of 10 years, though awarded the sentence of 9 years, and also deposited a fine of Rs.25,000/-. There is nothing on record to implicate the said respondent in conspiracy, as he had no knowledge as what was going to happen, and he had no intention to participate in the offence, for which he has been charged so far as the conspiracy is concerned. Therefore, no further conviction is required.
195. We have considered the rival submissions made by learned counsel for the parties and perused the record.
196. Respondent has not made any confessional statement.
Confessional statement of Abdul Gani Ismail Turk (A-11) :
197. The confessional statement of Abdul Gani Ismail Turk (A-11) revealed that on 8th/9th February 1993, Suleman Mohammed Kasam Ghavate (A-18) and (A-11) returned to Mhasla from Panvel after meeting Tiger Memon (AA), when they were carrying the goods brought from Mhasla and went to the house of accused Dawood @ Dawood Taklya Mohammed Phanse (A- 14), and thereafter accused Sarfaraj Dawood Phanse (A-55) had accompanied Abdul Gani Ismail Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) to Bombay and they dropped Sarfaraz Dawood Phanse (A- 55) at the guest house at Bandra at the say of Dawood Phanse (A-14).
Confessional statement of Dawood @ Dawood Taklya Mohammed Phanse (A- 14) :
198. The confessional statement of Dawood Phanse (A-14) revealed that after his arrival from Bombay, Sarfaraz Dawood Phanse (A-55) told him that the absconding accused Shafi had been to their house and told that he had kept the weapons in the house of Muzammil Umar Kadri (A- 25).
Confessional statement of Suleman Mohammed Kasam Ghavate (A-18) :
199. The confessional statement of Suleman Mohammed Kasam Ghavate (A- 18) disclosed that the said accused had been to Mhasla alongwith Abdul Gani Ismail Turk (A-11) and Uttam Shantaram Potdar (A-30) for bringing the part of the goods which had been smuggled in the first landing operation. He also corroborated the meeting of Abdul Gani Ismail Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) with Tiger Memon (AA) at Panvel and had given the message of Tiger Memon (AA) to Dawood @ Dawood Taklya Mohammed Phanse (A-14) and thereafter taken the accused (A-55) alongwith him to Bombay.
Confessional statement of Sajjad Alam (A-61):
200. The confessional statement of Sajjad Alam (A-61) revealed that on 20.1.1993 that said accused (A-61) had gone to the house of his grandmother and at that time he found accused Muzammil Umar Kadri (A- 25) present taking 16 rifles and 32 magazines by a jeep alongwith accused (A-55).
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
201. The confessional statement of Tulsi Ram Dhondu Surve (A-62) disclosed that during the second landing and transportation operation of contraband goods organised by Dawood @ Dawood Taklya Mohammed Phanse (A-14) and Tiger Memon (AA), accused (A-55) was also present near Wangni Tower alongwith other co-accused.
Confessional statement of Mohd. Sultan Sayyed (A-90):
202. The confessional statement of Mohd. Sultan Sayyed (A-90) disclosed that on 12.2.1993, respondent (A-55) had been to the rest house at Mhasla and enquired about R.K. Singh, Assistant Custom Collector (A-102). The respondent (A-55) was carrying one plastic bag containing Rs.3 lacs with him which he handed over to R.K. Singh.
203. The Designated Court after considering the entire evidence came to the following conclusion:
53-B) Thus considering material contained in confessions of above stated accused and so also evidence to which brief reference is made in the later part it can be safely said that A- 55 who is son of main landing agent responsible for Shekhadi landing i.e. A-14 was involved not only in said landing but so also even earlier to same in committing nefarious activities. Needless to add that as denoted by further dilation involvement of A-55 in commission of acts for which he is charged at head 2ndly and, consequently in commission of offence u/sec. 3(3) of TADA Act is squarely borne from the same.
With regard to argument canvassed that material in above referred confession or that of witnesses pertaining to events which had occurred at Wangni Tower not disclosing any positive overt act on part of A-55 or that at time of exchange of goods he was not at Wangni Tower or that he was only travelling on motor cycle etc. and as such himself being involved by Investigating Agency in case only because he is son of A-14 does not appeal to mind after considering in proper perceptive relevant material. Even accepting that A-55 was then moving on motor cycle still considering time of dead night at which he was doing so, place at which he was moving etc. clearly shows falsity of all said submissions after considering material in entirety disclosing acts committed by A-55. The same considered upon earlier acts of A-55 in concealment of weapons at his house in absence of his father etc. his participation in going to house of A- 42 as disclosed by aforesaid material clearly repels all said submission.
However, even carefully considering all material/evidence available against A-55 and same having not transcended beyond acts committed by him in facilitating Dighi landing and/or transportation of goods smuggled and same failing to disclose any material showing his nexus with conspiracy for which he is charged with or conspiracy for which his father A-14 held to be guilty it will be extremely difficult to accept that his guilt for same can be said to have been established by prosecution only on basis of his guilt found to be established for commission of offence u/sec.3 (3) of TADA Act.
(Emphasis added)
204. We do not see any cogent reason to interfere with the impugned judgment applying the parameters laid down by this court for interference against the order of acquittal. The evidence on record disclosed his involvement and association with Tiger Memon (AA) in landing and transportation, but that is because his father Dawood Phanse (A-14), was the landing agent. The appeal lacks merit, and is accordingly, dismissed.
192. In addition to the main charge of conspiracy, the respondent (A- 55) has been found guilty for offence punishable under Section 3(3) TADA, and on the said count, he has been convicted and sentenced to suffer RI for 9 years, alongwith a fine of Rs.25,000/-, and in default, to suffer RI for 6 months. However, the respondent has been acquitted of the first charge of conspiracy.
Hence, this appeal.
193. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that acquittal of the respondent on the charge of conspiracy is unwarranted and uncalled for as large number of co-accused, particularly, Abdul Gani Ismail Turk (A-11), Suleman Mohammed Kasam Ghavate (A-18), Ibrahim (A-41), Sajjad Alam (A-61), Tulsi Ram Dhondu Surve (A-62), Mohd. Sultan Sayyed (A-90) and the depositions of Harish Chandra Surve (PW-108) and Vijay Govind More (PW-137) specifically revealed a very deep involvement of the respondent in the offence and the evidence is sufficient warranting his conviction for the charge of conspiracy also. Therefore, the appeal deserves to be allowed.
194. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that he had already served the sentence of 10 years, though awarded the sentence of 9 years, and also deposited a fine of Rs.25,000/-. There is nothing on record to implicate the said respondent in conspiracy, as he had no knowledge as what was going to happen, and he had no intention to participate in the offence, for which he has been charged so far as the conspiracy is concerned. Therefore, no further conviction is required.
195. We have considered the rival submissions made by learned counsel for the parties and perused the record.
196. Respondent has not made any confessional statement.
Confessional statement of Abdul Gani Ismail Turk (A-11) :
197. The confessional statement of Abdul Gani Ismail Turk (A-11) revealed that on 8th/9th February 1993, Suleman Mohammed Kasam Ghavate (A-18) and (A-11) returned to Mhasla from Panvel after meeting Tiger Memon (AA), when they were carrying the goods brought from Mhasla and went to the house of accused Dawood @ Dawood Taklya Mohammed Phanse (A- 14), and thereafter accused Sarfaraj Dawood Phanse (A-55) had accompanied Abdul Gani Ismail Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) to Bombay and they dropped Sarfaraz Dawood Phanse (A- 55) at the guest house at Bandra at the say of Dawood Phanse (A-14).
Confessional statement of Dawood @ Dawood Taklya Mohammed Phanse (A- 14) :
198. The confessional statement of Dawood Phanse (A-14) revealed that after his arrival from Bombay, Sarfaraz Dawood Phanse (A-55) told him that the absconding accused Shafi had been to their house and told that he had kept the weapons in the house of Muzammil Umar Kadri (A- 25).
Confessional statement of Suleman Mohammed Kasam Ghavate (A-18) :
199. The confessional statement of Suleman Mohammed Kasam Ghavate (A- 18) disclosed that the said accused had been to Mhasla alongwith Abdul Gani Ismail Turk (A-11) and Uttam Shantaram Potdar (A-30) for bringing the part of the goods which had been smuggled in the first landing operation. He also corroborated the meeting of Abdul Gani Ismail Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) with Tiger Memon (AA) at Panvel and had given the message of Tiger Memon (AA) to Dawood @ Dawood Taklya Mohammed Phanse (A-14) and thereafter taken the accused (A-55) alongwith him to Bombay.
Confessional statement of Sajjad Alam (A-61):
200. The confessional statement of Sajjad Alam (A-61) revealed that on 20.1.1993 that said accused (A-61) had gone to the house of his grandmother and at that time he found accused Muzammil Umar Kadri (A- 25) present taking 16 rifles and 32 magazines by a jeep alongwith accused (A-55).
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
201. The confessional statement of Tulsi Ram Dhondu Surve (A-62) disclosed that during the second landing and transportation operation of contraband goods organised by Dawood @ Dawood Taklya Mohammed Phanse (A-14) and Tiger Memon (AA), accused (A-55) was also present near Wangni Tower alongwith other co-accused.
Confessional statement of Mohd. Sultan Sayyed (A-90):
202. The confessional statement of Mohd. Sultan Sayyed (A-90) disclosed that on 12.2.1993, respondent (A-55) had been to the rest house at Mhasla and enquired about R.K. Singh, Assistant Custom Collector (A-102). The respondent (A-55) was carrying one plastic bag containing Rs.3 lacs with him which he handed over to R.K. Singh.
203. The Designated Court after considering the entire evidence came to the following conclusion:
53-B) Thus considering material contained in confessions of above stated accused and so also evidence to which brief reference is made in the later part it can be safely said that A- 55 who is son of main landing agent responsible for Shekhadi landing i.e. A-14 was involved not only in said landing but so also even earlier to same in committing nefarious activities. Needless to add that as denoted by further dilation involvement of A-55 in commission of acts for which he is charged at head 2ndly and, consequently in commission of offence u/sec. 3(3) of TADA Act is squarely borne from the same.
With regard to argument canvassed that material in above referred confession or that of witnesses pertaining to events which had occurred at Wangni Tower not disclosing any positive overt act on part of A-55 or that at time of exchange of goods he was not at Wangni Tower or that he was only travelling on motor cycle etc. and as such himself being involved by Investigating Agency in case only because he is son of A-14 does not appeal to mind after considering in proper perceptive relevant material. Even accepting that A-55 was then moving on motor cycle still considering time of dead night at which he was doing so, place at which he was moving etc. clearly shows falsity of all said submissions after considering material in entirety disclosing acts committed by A-55. The same considered upon earlier acts of A-55 in concealment of weapons at his house in absence of his father etc. his participation in going to house of A- 42 as disclosed by aforesaid material clearly repels all said submission.
However, even carefully considering all material/evidence available against A-55 and same having not transcended beyond acts committed by him in facilitating Dighi landing and/or transportation of goods smuggled and same failing to disclose any material showing his nexus with conspiracy for which he is charged with or conspiracy for which his father A-14 held to be guilty it will be extremely difficult to accept that his guilt for same can be said to have been established by prosecution only on basis of his guilt found to be established for commission of offence u/sec.3 (3) of TADA Act.
(Emphasis added)
204. We do not see any cogent reason to interfere with the impugned judgment applying the parameters laid down by this court for interference against the order of acquittal. The evidence on record disclosed his involvement and association with Tiger Memon (AA) in landing and transportation, but that is because his father Dawood Phanse (A-14), was the landing agent. The appeal lacks merit, and is accordingly, dismissed.
