State of Maharashtra Vs. Gulam Hafiz @ Baba
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA – Acquittal under charge of conspiracy – Confessional statement – Involvement in Shekhadi landing operation – But no material to show participation in conspiratorial meeting after the said landing. Held appellant could be punished only for smaller conspiracy. No merit in appeal.
210. 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 has been convicted under Section 3(3) TADA and awarded rigorous imprisonment for 8 years with a fine of Rs. 10,000/- and in default of payment of fine, to suffer further RI for 2 months on the first count and on second count he has been awarded under Section 3(3) TADA, a rigorous imprisonment for 6 years with a fine of Rs.5,000/- and in default of payment of fine, to suffer further RI for one month.
211. In addition to the general charge of conspiracy the Respondent (A-73) was charged for participating alongwith his co- conspirators in the smuggling and landing of arms and ammunition at Shekhadi and participating in transportation of the same from Shekhadi to Bombay for committing terrorist activities. He was further charged under the provisions of Arms Act for possessing/storing the weapons at his garage and unauthorisedly transporting smuggled weapons from Shekhadi to Bombay.
212. After conclusion of the trial, the respondent had been convicted under Section 3(3) TADA, but had been acquitted of the first charge of conspiracy.
Hence, this appeal.
213. Heard rival submissions made by counsel for both parties and perused the evidence on record.
214. The learned Special Judge after considering the evidence on record against the respondent recorded the following findings:-
61-C) Thus considering material in the confession of A-73 and aforesaid co-accused the same leads to the conclusion of A-73 also being involved in Shekhadi landing operations denoted by said material and as such having committed offence under Section 3(3) of TADA for which he is charged at head 2ndly. Similarly, considering said evidence in proper perspective and same and particularly own confession of A-73 squarely denoting that he was fully aware that contraband goods which were shifted from trucks lo other vehicles where arms, ammunition, handgrenades and RDX etc. and still himself having transported the same to Bombay by driving vehicle and even in Bombay having committed further acts regarding contraband goods the same clearly indicates that his act were directed to further object of conspiracy to commit terrorist act. No doubt that he has received amount of Rs.1 thousand for work effected by him. However the same will never change character of act committed by him. Similarly the acts committed by him were obviously for purposes of aiding and abetting terrorist accused who were to use the same for commission of terrorist act. A-73 having committed said act by contravening provision of Arms and Explosive Act he was also required to be held liable for offence under Section 6 of TADA for which he charged at head 3rdly. However unlike other accused involved in transportation alike A-73, A-73 after Shekhadi landing operation had not participated in commission of any act furthering object of any conspiracy. The acts were committed by him during early phase i.e. much prior to even Tiger Memon fixing target for commission of serial blast. A-73 had never been party to any conspiratorial meeting after effecting said landing job nor was involved in any of operation thereafter effected in pursuance of conspiracy to commit serial blast. In view of same though A-73 is found to be guilty for offence of conspiracy the same would be conspiracy to commit terrorist act punishable under Section 3(3) of TADA or in other words he cannot be held liable for larger conspiracy for which charge at head 1stly is framed against him.
215. In view of the fact that there is no evidence to show that the respondent (A-73) ever participated in any of the conspiratorial meetings after the said landing, or was involved in any of the operation thereafter in pursuance of the conspiracy to commit the serial Blast, he could be punished only for smaller conspiracy under Section 3(3) TADA and not for the larger conspiracy for which the charge no.1 had been framed. In the facts and circumstances of the case, the respondent (A-73) had been convicted and awarded sufficient punishment.
216. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
217. In view of the above, we do not find any cogent reason to hold that findings recorded by the learned Designated Court are perverse, warranting any interference by this Court. The appeal lacks merit and is accordingly dismissed.