State of Maharashtra Through CBI Vs. Sujjad Alam (A-61)
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – Confessional statement of Accused-61 along with other co-accused – Depositions of PWs – Appellant (A-61) participated in landing and transportation of contraband – Asked to leave, when gunny bags opened – No knowledge that arms were smuggled and were to be used in India – Contraband not loaded in the vehicle of A-61 – No record to show that A-61 participated in loading or unloading of contraband kept in M’s house and vehicle – He transported 3 rifles and 6 cassettes along with ‘D’ from the house of ‘M’ which were taken by Tiger Memon. Acquittal of the charges of conspiracy by Designated Court, held, on facts and applying the parameters laid down for entertaining appeal against acquittal, calls for no interference.
Section 3(3) – Punishment under – Scope and ambit. Scope is very vast and all accused cannot be held at par. It depends upon gravity of the crime. For determining the quantum of sentence, gravity has to be judged.
Appellant (A-61) had been found guilty on the single count of participating in landing on two occasions and additionally of being involved in the concealment of arms and ammunition at the house of A-25 and further for the transportation of some arms from the house of A-25 to Lonery Phata and handing over the same to Tiger Memon (AA). Undoubtedly he had been working as an auto driver and was paid only for that. (Para 247)
The scope and ambit of Section 3(3) TADA is very wide. Punishment for the offences under section 3(3) varies from 5 years to life imprisonment depending on the gravity of the overt act done by particular accused. Each of them cannot be held to be at par, as one of them may be instrumental in arranging the landing, another maybe helping in organising and affecting transportation, some may be given supervisory work while other persons might have been engaged as labourers. Therefore, while determining the quantum of punishment the precise act committed by an individual accused is of prime consideration. (Para 246)
235. This appeal has been preferred against the judgment and order dated 2.8.2007 passed by Special Judge of the Designated Court under the TADA for Bombay Blast Case No.1 of 1993 by which the Respondent (A-61) had been convicted under Section 3(3) TADA and awarded rigorous imprisonment for 7 years with a fine of Rs. 50,000/- However, Respondent (A-61) has been acquitted of the general charge of conspiracy.
Hence, this appeal.
236. Shri Mukul Gupta, learned senior counsel appearing for the appellant, has submitted that the respondent had very close association with terrorists and had been a kingpin in all the terrorist activities and most of the accused in their confessional statements had revealed his involvement. Therefore, he ought to have been convicted for the charge of general conspiracy and, thus, the appeal deserves to be allowed.
237. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent, has submitted that the respondent (A- 61) has already been convicted and punished appropriately. He has already served 3-1/2 years in prison and had paid fine, therefore, no further punishment is required and the appeal is liable to be dismissed.
238. The evidence against the respondent Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61) is his own confession. In his confessional statement, he had disclosed that his maternal uncle Khalil Ali Nazir had been involved in landing of silver for Tiger Memon (AA) at Shekhadi Beach. Accused (A-61) used to take Dawood Taklya (A-14) and Abdul Aziz Gharatkar to the place of landing in his auto rickshaw. Accused (A-61) participated in the landing and transportation of the contraband. Accused (A-61) was paid Rs. 2000/- per landing through Khalil. On 20th January, 1993, Accused (A-61) went to the residence of his maternal uncle and found Khalil, Muzammil, Shafi and other Khalil, resident of Shrivardhan present there. They were shifting some goods wrapped in gunny bags from the jeep to a room. At that time, son of Dawood Taklya Sarfaraz (A-55) was also there. Shafi, driver of Tiger Memon(AA), asked accused (A-61) to leave the room. When they opened the gunny bags inside the room, accused (A-61) saw that the bags contained 16 rifles and 32 cassettes (magazines). After coming outside, A-61 saw that Khalil, resident of Shrivardhan, was closing secret cavities in the jeep. Shafi then took that jeep towards Mhasla. The accused (A-61), Khalil and Muzammil took the said arms, ammunition in the auto rickshaw of Muzammil at the residence of Muzammil and dropped the same there. On 3rd February, 1993, his uncle Khalil asked him to help in the landing of contraband for Tiger Memon (AA) in the night. So A-61 went to the place of landing in his auto rickshaw alongwith Dawood Taklya (A-14) and Abdul Aziz. After reaching there, he found 2-3 jeeps carrying Tiger Memon (AA) and 20-25 of his associates. The accused (A-61) was then directed to reach Tower, upon which, he left to wake the people there. On reaching the place the accused (A-61) parked the vehicle on one side of the tower and slept on the back seat. After a long time, Muzammil came to the vehicle and woke him up. Rashid and Khalil also came there. By that time, all the vehicles from Shekhadi had arrived. The associates of Tiger Memon (AA) were unloading and shifting the articles inside the Tower. The accused (A-61) was forbidden to enter inside. After sometime, Dawood, Khalil, Abdul Aziz and accused (A-61) left the Tower in the auto rickshaw. It was in the evening of 9th February, 1993, that the accused (A-61) took Dawood Taklya in his auto rickshaw to Mehandari. From there they took Khalil Nazir from his residence and reached Muzammils residence. On being asked by Dawood Taklya, Muzammil handed over 3 rifles and 6 cassettes in a gunny bag. All the three accused then took the said weapons and ammunition and came to Lonery Phatta on the highway via Goregaon and handed over the same to Tiger Memon (AA), who had arrived there. After 4-5 days, Dawood Taklya sent Rs.4000/- for both the landings.
239. Confessional statement of Mohd. Phanse @ Dawood Taklya (A-14) – His statement corroborated the version given by the accused (A-61) about the landing at Shekhadi and disclosed the role of accused (A-61) as a participant in the landing and his facilitation in the transportation. According to him, Tiger Memon (AA) was there with 20-25 persons. Out of them 8-10 persons were carrying pistols in their pockets. Immediately, after the arrival of trawler, accused (A-61) was sent alongwith his auto rickshaw to call Rashid from Borli with his truck so he left. The goods were unloaded and put in the trucks. Immediately, another trawler arrived carrying the goods which were also unloaded. Tiger Memon (AA) made 2-3 boys carrying guns to sit over the goods which were loaded in the truck. Then they had reached Wangni Tower, where the goods were unloaded. When they went inside the Tower, he saw the men of Tiger Memon (AA) opening those boxes and putting rifles, pistols, bullets, black wire, handgrenades and bundles of wire with white pencil on top and black soap like material at the side. Tiger Memon (AA) was sitting at their side and counting and noting things in his diary. Once the landing and transportation was over, co-accused (A-14) came back to his village alongwith accused (A-61) in his auto rickshaw.
240. Confession of Khalil Ahmed Sayed Ali Nasir (A-42) – So far as accused (A-61) is concerned, A-42 in his confessional statement disclosed that on 3rd March, 1993 he and Dawood Taklya (A-14) had reached Mhasla in the auto-rickshaw of accused (A-61). Then the accused (A-61) was sent to village Borli with auto-rickshaw to bring the truck and labourers.
241. Confession of Muzammil Umar Kadri (A-25) – On 3rd February, 1993, this accused (A-25) on being called reached in front of Bashirs house in Borli. Accused (A-61) auto rickshawala also came there sometime later after dropping Dawood Taklya (A- 14) and Khalil at Shekhadi. Sometime later, Khalil had come alongwith another Khalil of Shrivardhan on his scooter. Khalil sent accused (A-61) to the tower just before the jeep came and accused (A-25) also went to the tower alongwith Khalil by following the truck. On 7 th February, 1993, Dawood Taklya (A-14) had taken him in the auto rickshaw of accused (A-61), to Shekhadi. In the morning of 7th February, 1993 Dawood Taklya (A-14) had come in the rickshaw of accused (A-61) and took 3 rifles and 6 cassettes which had been kept in his house earlier. The remaining 13 rifles and 26 cassettes had been recovered later on by the police from his house.
242. Deposition of Vijay Govind More (PW.137) – This witness deposed about the incident of February, 1993 stating that Tiger Memon (AA) and his companions came in jeeps and motorcycles and an auto rickshaw at Wangni Tower. Accused (A- 61) was also with them. He also identified the accused (A-61) in court.
243. The Designated Court after appreciating the entire evidence reached the conclusion as under:
The aforesaid material contained in the confession of A-61 not only reveals his involvement in Shekhadi landing and transportation but also reveals involvement of A-14, 15, 17, 25, 27, 34, 42, 55 & Tiger Memon.
244. In addition, the Designated Court also reached the conclusion that the accused (A-61) had no knowledge about the use to which weapons were to be put into. In awarding the punishment, the court took into consideration the role played by the respondent (A-61) and concluded that charge for larger conspiracy could not be made out.
245. It is evident that he was not allowed to enter into the Wangni tower and thus he had no knowledge that arms had been smuggled into India to be used in Bombay Blast, and further, the fact that the arms were kept in the house of Muzammil, and the arms and ammunition had been transported in the vehicle belonging to Muzammil and not in the vehicle of accused (A-61). There is nothing on record to show that accused (A-61) had participated in loading and unloading of the same. His rickshaw had been used for carrying the accused persons. The accused (A-61) had transported the arms, i.e. 3 rifles and 6 cassettes alongwith Dawood Taklya from the house of Muzammil which were subsequently taken from him by Tiger Memon (AA).
246. The scope and ambit of Section 3(3) TADA is very wide. Punishment for the offences under section 3(3) varies from 5 years to life imprisonment depending on the gravity of the overt act done by particular accused. Each of them cannot be held to be at par, as one of them may be instrumental in arranging the landing, another maybe helping in organising and affecting transportation, some may be given supervisory work while other persons might have been engaged as labourers. Therefore, while determining the quantum of punishment the precise act committed by an individual accused is of prime consideration.
247. In the instant case, appellant (A-61) had been found guilty on the single count of participating in landing on two occasions and additionally of being involved in the concealment of arms and ammunition at the house of A-25 and further for the transportation of some arms from the house of A-25 to Lonery Phata and handing over the same to Tiger Memon (AA). Undoubtedly he had been working as an auto driver and was paid only for that.
248. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
249. The judgment of the learned Special Judge does not require interference. The appeal lacks merit and is accordingly dismissed.