State of Maharashtra Vs. Manoj Kumar Bhanwarlal Gupta
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5,6 – Penal Code, Section 201 – Charges under and conviction therefor – However acquittal of the charge of conspiracy – Appeal against – Allegation that respondent participated in weapons training conducted by Tiger Memon and also in smuggling, landing and transportation of arms, ammunition and explosives on 3.2.1993 & 7.2.1993 – Further allegation of unauthorisedly possessing arms and of disposing 59 packages of explosives i.e. RDX – Confessional statements of A-15, A50, A64, A62, A91, A29, A58 and evidence of PW2 establishing Respondent A-24’s presence at and awareness of landing of arms and ammunition – According to A24 he was given arms and was made to sit on alert and that the contraband smuggled was used in the Bombay Blast – Evidence on record proving his involvement and participation throughout the main conspiracy – Yet acquittal by Designated judge of the charge of larger conspiracy. Held, acquittal being perverse is set aside. A24 sentenced to Life imprisonment.
173. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent (A- 24) was charged under Section 3(3) TADA, for his participation in weapons training conducted by Tiger Memon for handling arms, ammunition and explosives which took place at Sandheri and Bhorghat, (Dist. Raigad) and his association in smuggling, landing and transportation of the arms, ammunition and explosives on 3rd and 7th February, 1993; thirdly, he was charged under Sections 5 and 6 TADA for having possession of 2 pistols, one revolver and one country made pistol unauthorisedly; and lastly for his involvement in disposal of 59 packages of explosives i.e. RDX, by engaging the services of others and throwing them at Nagla Bunder Creek. He (A-24) was thus found guilty under Section 3(3) TADA and Section 201 IPC.
B. After conclusion of the trial, the respondent was held guilty of the charges as referred to hereinabove, but has been acquitted of the charge of conspiracy.
Hence, this appeal.
174. Mr. Satya Kam, learned counsel appearing for the appellant has submitted that the involvement of the respondent (A-24) had been from the very beginning and he had been in close association of Tiger Memon (AA) and was involved in hatching the conspiracy, assisting him in landing and transportation of arms, ammunition and explosives. Therefore, he ought to have been convicted for the first charge. Thus, the appeal deserves to be allowed.
175. On the contrary, Ms. Farhana Shah, learned counsel for the respondent (A-24) has submitted that he had already served the sentence of 14 years and deposited the fine, and has already suffered a lot. Therefore, it is not warranted to entertain this appeal against his acquittal in view of the parameters laid down by this Court in this regard. Therefore, the appeal is liable to be dismissed.
176. We have considered the rival submissions made by learned counsel for the parties and perused the record.
177. Evidence against the respondent (A-24):
(a) Confessional statement of Manoj Kumar Bhanwarlal Gupta (A-24)
(b) Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)
(c) Confessional statement of Noor Mohammed Haji Mohammed Khan (A- 50)
(d) Confessional statement of Nasir Abdul Kader Kewal @Nasir Dakhla (A-64)
(e) Confessional statement of Tulsi Ram Dhondu Surve (A-62)
(f) Confessional statement of Mohd. Dawood Mohd. Yusuf Khan (A-91)
(g) Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
(h) Confessional statement of Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58)
(i) Deposition of Mohd. Usman Jan Khan (PW.2)
Confessional statement of Manoj Kumar Bhanwarlal Gupta (A-24) :
178. His confessional statement was recorded on 30.4.1993 and 9.5.1993. The respondent (A-24) in his confessional statement had disclosed that he had been indulged in the criminal activities since very young age and had committed murders and was indulged in Hawala business with Iijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A- 137-dead) who was living at that time in Dubai as well as in Bombay. He had murdered Majeed in 1986 and absconded. He had also committed the murder of one Hameed alongwith Dawood Shamsher Aziz. Even though, he had been arrested several times in most of the cases but, he had been granted bail.
178.1 In July 1989, he had murdered Kamaljit Singh as per the instructions of Ayub and then murdered one Mahmood who had murdered his friend Kailash Jain in Udaipur, Rajasthan. However, in these cases he remained absconding. Further in January, 1992, he came back to Bombay and started Hawala business and at that time he stabbed a person named Hallu and remained absconded. He had developed close association with Tiger Memon (AA). On 2.2.1993, Tiger Memon, Hazi Yakoob @ Hazi Yeda Yakoob (AA) accompanied by 20-25 persons went to Mhasla tower and met Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiya, (A-14) and Dadabhai (A-17) there. They all went to Shekhadi alongwith Tiger Memon where he (AA) alongwith others went in the sea and came back with certain bags. The bags were containing AK- 56 rifles, hand-grenades, magazines and pistols.
178.2 Tiger Memon gave him (A-24) one AK-56 rifle, 2 loaded magazines and 1 bag containing hand-grenades. Tiger Memon asked him (A-24) to sit alertly on the sea-shore and also explained to him the procedure of using the hand-grenades by removing its pin. After some time, a truck came there and the goods were shifted from boats into the truck. He went to Mhasla Tower by another jeep where the packets were unloaded and opened. There were AK-56 rifles, hand-grenades, pistols and cartridges in those packets. He had seen those packets containing black soap. The black soap was unloaded in two tempos and weapons and cartridges were loaded in jeep and tempos in the cavities made therein. Altogether, there were five jeeps and two tempos for all these goods. On the instructions of Tiger Memon, the vehicles left in different directions. Tiger Memon and Haji Yeda Yakoob told him (A- 24) to stay in the house of Hazi Yakoob at Khar, and he (A-24) stayed there.
178.3 Respondent (A-24) again participated in the second landing on 9.2.1993 wherein uploading of goods started and were unloaded within two hours. Tiger Memon (AA) brought the goods to Mhasla Tower and left next morning for Bombay. Tiger Memon (AA) paid him (A-24) a sum of Rs.20,000/- for the job. Iijaz Pathan (A-137) telephoned him from Dubai and warned him not to disclose it to anybody. Further, Respondent (A-24) was contacted by the co-accused for the disposal of 59 packets stored in a godown and he had taken Rs. 5 lacs for doing the job and got the said goods destroyed through his persons in Nagla Bunder Creek. He (A-24) disclosed that the contraband used in Bombay Blast were the same which had been unloaded at Shrivardhan.
Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15):
179. He (A-15) has disclosed that on 3.2.1993, Tiger Memon and other people were there at Shekhadi, and Munna (A-24) was also one of them. They were carrying bags on their back. When the bags were opened it contained AK-56 rifles, hand-grenades, magazines, cartridges and explosives. Tiger Memon was noting down the calculation of the unloaded articles in his diary. He (A-15) has disclosed that in the second week of February 1993, Munna (A-24) was given two rifles at the instance of Bhai which were brought by him in a suitcase. The accused witness, Shaikh Ali, Munna (A-24) and three other persons were asked to sit in the tempo containing 84 bags of the explosives.
Confessional statement of Noor Mohammed Haji Mohammed Khan (A- 50):
180. He has also made the disclosure statement in respect of the disposal of the 59 bags containing RDX in a godown which were thrown with the help of Munna (A-24) at the instance of Rashid Khan. He (A- 50) has disclosed that he asked Rashid Khan to help him in arranging the said material. Rashid told him that he would get it done through his friend Munna (A-24), who has a large number of boys to do the said job. They decided to pay Munna (A-24) a sum of Rs.5 lakhs for throwing the material and the 59 packets containing RDX in the Nagla Creek by the boys of Munna (A-24).
Confessional statement of Nasir Abdul Kader Kewal @Nasir Dakhla (A-64):
181. This accused (A-64) has disclosed about the landing at Shekhadi in which Munna (A-24) had participated with others. He (A-64) has disclosed about the full participation of Munna (A-24) in landing and transportation of arms and ammunition brought from Shekhadi to Bombay in the tempo of Haji and further disclosed that he had always been moving alongwith Tiger Memon (AA) during the said operation.
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
182. This accused had disclosed about the incident at Wangni Tower on the relevant date and disclosed that Munna (A-24) was with Tiger Memon at Wangni Tower alongwith other persons, and they first unloaded the contraband at Wangni Tower and then uploaded it in the jeep and tempo and most of the persons were armed with guns and pistols there.
Confessional statement of Mohd. Dawood Mohd. Yusuf Khan (A-91):
183. This accused has disclosed that 7-8 days before Ramzan in 1993 he went to M.K. Builders, Bandra on the instructions of Iijaz Bhai (A- 137) from Bombay and there he met with Dev who contacted Iijaz Bhai (A- 137) and told him that A-24 had arrived. At that time Iijaz (A-137) and Munna (A-24) came out of the office, and gave him the key of the vehicle parked outside. They all boarded the vehicle and Munna (A-24) sat in the back seat. He (A-24) saw a black bag lying on the back seat and Iijaz (A-137) told him about the three stunguns lying inside the bag, and asked him to keep them in his house for some time. When they reached Kurla, Iijaz (A-137) asked Munna (A-24) to leave. Thereupon, Munna (A-24) took the bag from the back seat and handed it over to the accused witness (A-91).
Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29):
184. He (A-29) has disclosed that on the last days of January or in the first week of February, 1993, Javed Chikna asked (A-29) to accompany him to receive the smuggled goods of Tiger Memon. They went to Jetty and found three boys there including Munna (A-24), who also participated in the landing and transportation.
Confessional statement of Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58):
185. This accused (A-58) has disclosed that Munna was in close association of Tiger Memon and of other co-accused, and was staying in the house of Haji Yakoob @ Yakoob Yeda (AA).
Deposition of Mohd. Usman Jan Khan (PW.2):
186. He has deposed that in December 1992, riots took place in Bombay and Javed Chikna was wounded by a police bullet and was admitted in the hospital. He (PW.2) and Shahnawaz visited him there. While attending the funeral of the son of Aziz, he met Shafi, the driver of Tiger Memon. Shafi spoke in confidence with Javed Chikna and Javed Chikna took the witness accused alongwith him on the next day to the coastal area where Tiger Memons goods were coming. He (PW.2) had participated in the landing and transportation alongwith the other persons and Munna (A-24) was also one of them. He had met Tiger Memon in hotel Big Splash in Rooms nos. 51, 54 and 55 booked. They stayed there and at that time they were told by Tiger Memon that the government failed to stop the humiliation of Muslims, thus, he had arranged some arms and ammunition from Pakistan which were to reach on that day. In the said meeting, a large number of persons were there including Munna (A-24).
186.1 He has also deposed his participation in landing on 3rd and 7th February, 1993 in which the arms, ammunition, particularly AK-56 rifles, pistols and hand-grenades had been smuggled. Karimullah was also there. They had brought the material to Wangni Tower. After unloading and opening the same they were again shifted in the jeeps and tempos, and were brought to Bombay. Munna (A-24) was also in the party.
187. The Special Judge had recorded the finding that the corroborative material supported his involvement in the Shekhadi landing and transportation, and he was absconding alongwith other accused. However, he was acquitted from the first charge on the basis of following reasons:
Due to his involvement in Shekhadi landing he could be convicted under Section 3(3) TADA, but it would be significant to note even the evidence pertaining to Shekhadi landings and acts committed by Munna (A-24) in connection with said landings for which he had been held guilty clearly reveal that Munna (A-24) was not the main person responsible for effecting the said landing nor had played any prominent role except escorting Tiger Memon who was effecting the said landing and the goods which were to be landed and were to be transported from Shekhadi to Wangni Tower and thereafter to Bombay. Even considering the role played by Munna (A-24) who participated in the said landing clearly appeared to be on much lower pedestal than the other who were primarily responsible in organizing and effecting the said landing i.e. Tiger Memon, A-14, A-17, A-15 and few more. Even considering his further acts for which he has been held guilty under Sections 5 and 6 of TADA, it was clear that same were not committed by him in pursuance of any conspiracy of Bombay Blast. Further, considering the quantum of contraband arms and ammunitions of pistols, revolver and country made pistol he could be found guilty for commission of offences under Sections 5 and 6 TADA. Even considering his role played by him in disposal of RDX, it was clear that though he was involved still he was not the main person in disposal of the said RDX or the same was the material which was brought in Shekhadi landing by Tiger Memon and stored in the godown. His involvement was only that he had been uptil hotel at Ghodbunder. He had hardly played any prominent role in disposal of any RDX and had allowed his name to be used by other accused for knocking handsome amount of money from Noor Mohammed Haji Mohammed Khan (A-50) in whose godown such material was found stored. Evidence further revealed that he could receive only a sum of Rs.10,000/- out of the amount of Rs.5 lakhs which was taken by accused Mohd. Jindran and Rashid Khan from Noor Mohammed Haji Mohammed Khan (A-50) for disposal of the said material. Therefore, he cannot be held responsible for acting in pursuance of main conspiracy and his case would definitely fall on lower pedestal than such other accused persons who were repeatedly committed different acts in pursuance of main conspiracy.
188. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
189. From the confessional statement made by the accused it can be ascertained that he (A-24) was aware of the arms and ammunition being landed. He stated that he was given arms and further, was told to sit on alert. He also stated that Tiger Memon (AA) even taught him how to use hand-grenades and also paid him for his services. He was also later contacted by co-accused for the disposal of 59 packets stored in a godown and was paid Rs. 5 lakhs for the same. He further revealed that the contraband used in the Bombay Blast of 12.3.1993, was the same as had been landed by him and other co-accused at Shrivardhan. Co-accused Imtiyaz (A-15), Noor Mohammed (A-50), Nasir Dhakla (A-64), Tulsi Ram (A- 62) Dawood Yusuf (A-91), Shahnawaz (A-29) and Ethesham (A-58) have corroborated the knowledge of the respondent and the fact that he was present when the landing was taking place.
190. The involvement and participation of Munna (A-24) was throughout the main conspiracy. The order of the learned Designated Court acquitting him on the charge of larger conspiracy is perverse, in view of the evidence on record. Therefore, conspiracy stands proved. Judgment to that extent is set aside and the appeal is allowed, and the sentence is enhanced to life imprisonment. The respondent is directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure his custody and send him to jail to serve out the sentence.