State of Maharashtra Vs. Rashid Umar Alwar
EmailAppeal: Criminal Appeal No. 1022 of 2012
Petitioner: State of Maharashtra
Respondent: Rashid Umar Alwar
Apeal: Criminal Appeal No. 1022 of 2012
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Customs Act, 1962
Sections 111, 135 – TADA, Section 3(3) – Conviction under Section 111 read Section 135 of Customs Act – Sentenced to 3 years and fined Rs.25,000/- Acquitted of general charge of conspiracy and charge under Section 3(3), TADA – Allegation of landing and transporting arms, ammunition and explosives, using his motor truck on 3.2.1993 from Shekhadi to Wangni Tower – Around 59 bags of RDX explosives taken to field of one ‘T’ and buried – Allegation that he had knowledge that contraband were arms and ammunition and not silver- Confessed his participation in landing and transportation of silver on instructions of other co-accused from Shekhadi village to Wangni Tower – At wangni Tower, made to wait, while some goods were unloaded – Rest of the goods unloaded at a place from where unloading could not be seen – Paid Rs.20,000/- According to A-14, a close associate of Tiger Memon (AA), Respondent was called with his truck for loading – A-61 and A62 corroborated the version given by other co-accused that on 3.2.1993 the landing took place and the contraband was transported in respondent’s truck – Designated Court held that though respondent was aware of smuggling operation as goods transported by him were brought at a place which was not a port, there being no evidence to show that he had seen the nature of goods transported, his liability was restricted to commission of offences under Customs Act. Held, in absence of evidence to prove respondent’s knowledge about the nature of goods smuggled, no interference is warranted.
Customs Act, 1962
Sections 111, 135 – TADA, Section 3(3) – Conviction under Section 111 read Section 135 of Customs Act – Sentenced to 3 years and fined Rs.25,000/- Acquitted of general charge of conspiracy and charge under Section 3(3), TADA – Allegation of landing and transporting arms, ammunition and explosives, using his motor truck on 3.2.1993 from Shekhadi to Wangni Tower – Around 59 bags of RDX explosives taken to field of one ‘T’ and buried – Allegation that he had knowledge that contraband were arms and ammunition and not silver- Confessed his participation in landing and transportation of silver on instructions of other co-accused from Shekhadi village to Wangni Tower – At wangni Tower, made to wait, while some goods were unloaded – Rest of the goods unloaded at a place from where unloading could not be seen – Paid Rs.20,000/- According to A-14, a close associate of Tiger Memon (AA), Respondent was called with his truck for loading – A-61 and A62 corroborated the version given by other co-accused that on 3.2.1993 the landing took place and the contraband was transported in respondent’s truck – Designated Court held that though respondent was aware of smuggling operation as goods transported by him were brought at a place which was not a port, there being no evidence to show that he had seen the nature of goods transported, his liability was restricted to commission of offences under Customs Act. Held, in absence of evidence to prove respondent’s knowledge about the nature of goods smuggled, no interference is warranted.
JUDGEMENT:
113. 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 in the Bombay Blast Case No. 1/93, by which the respondent had been convicted under Section 111 read with Section 135 of the Customs Act, 1962, and awarded the sentence of 3 years alongwith a fine of Rs.25,000/-. However, he had been acquitted of the general charge of conspiracy and second charge under Section 3(3) TADA.
114. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent (A- 27) was also charged for participating in the landing and transportation of the arms, ammunition and explosives, using his motor truck bearing registration No. MWT-6683, on 3.2.1993 from Shekhadi to Wangni Tower. About 59 bags of RDX explosives were taken by him in his truck alongwith other co-accused to the field of Tulsi Ram Dhondu Surve where it was buried and concealed.
B. After holding the trial, the respondent had been acquitted of the charge of conspiracy, however, he has been convicted for the other charges as mentioned hereinabove.
Hence, this appeal.
115. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there was sufficient evidence against the respondent (A-27), so far as the participation and transportation of the explosives used in the offences is concerned. Therefore, the acquittal under Section 3(3) TADA and of the charge of general conspiracy is unwarranted. The evidence on record makes it evident that he had knowledge that contrabands were not silver but arms and ammunition. Therefore, the appeal deserves to be allowed and the respondent (A-27) should be convicted for the offences punishable under the aforesaid provisions.
116. Shri Mushtaq Ahmad, learned counsel appearing for the respondent (A-27) has submitted that after appreciating the evidence on record, the Designated Court reached the conclusion after that even if the respondent (A-27) had participated in landing and transportation of contraband, he had no knowledge about its contents. In absence of any knowledge that the contraband contained arms and ammunition, conviction under the provisions of TADA is not permissible. The respondent (A-27) has already served 3 years imprisonment, and paid a fine of Rs.25,000/-. Thus, no further consideration of the appeal is required. Therefore, the appeal is liable to be dismissed.
117. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against him:
Confession of the Respondent Rashid Umar Alware (A-27):
118. In his own confession, Rashid Umar Alware (A-27) has admitted that he owned a truck bearing registration No.MWT-6683 and he drove himself. In the first week of February, 1993 he had participated in the landing and transportation of silver at the behest of other co- accused by driving his truck to Shekhadi village and bringing the contraband. He disclosed that his truck was loaded with contraband and when the truck was moving it was followed by a jeep and they reached Wangni Tower. There two persons took him aside and was asked to wait at one place. After unloading some of the goods he drove the truck away from the Tower. The remaining goods were unloaded and the same was kept in one pit in the land. At that time he was kept at a distance from where unloading of the goods could not be seen. He was paid a sum of Rs.20,000/- for transportation etc.
Confession of Dawood @Dawood Takllya Mohammed Phanse @ Phanasmiyan (A- 14):
119. He disclosed that he was a very close associate of Tiger Memon (AA) and used to participate in landing and transportation of smuggled goods/contraband. In the first week of February, 1993, five-seven persons with him had gone for landing at Shekhadi. As per the pre- arrangement, Rashid Umar Alware (A-27) was called from Borli with his truck and 35-40 persons were arranged for loading and unloading the goods. The goods were brought from the trawlers to the shore by Tiger Memon (AA) and other persons armed with guns and were loaded in the truck.
Confession of Muzamil Umar Kadri (A-25):
120. He (A-25) disclosed that he reached Borli village on 3.2.1993 and asked Rashid Umar Alware (A-27) to accompany him with his truck. He came driving his truck at the place of landing. Other accused persons were there. They reached Shekhadi and the goods were loaded in the truck.
Confession of Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61):
121. He corroborated the version given by other co-accused that on 3.2.1993 the landing took place and the contraband was transported by the truck of the respondent (A-27).
121.1 He also disclosed that most of the persons were not permitted to see when the loading and unloading took place at Wangni Tower.
Confession of Tulsi Ram Dhondu Surve (A-62):
122. He (A-62) has corroborated the version given by other co-accused disclosing that the said truck used for transportation belonged to Rashid Umar Alware (A-27) from Borli and he himself was driving the truck. The goods brought in the Wangni Tower contained guns and pistols. The work of loading of the goods from the truck in a jeep and tempo started after bringing the same by truck from Shekhadi. Out of the aforesaid goods 59 bags remained. The said bags were taken by the truck of the respondent (A-27) in the field and were unloaded on the steps of the house with the help of the labourers on the field and the same were covered with the soil. When he asked Dawood whether those were the silver bricks, he was told that it was Kala Sabun. Tiger Memon (AA) intimidated him and warned not to tell to anyone about the same. Tiger Memon took one bundle from the said bundles and saw the same and ascertained as to whether the goods therein were proper or not and threw the plastic bag at that place and packed the same in another bundle and took the same with him. It was learnt later that one truck had arrived on 4.2.1993 in the evening and carried away the remaining 59 bags.
123. The Designated Court after appreciating the entire evidence on record came to the following conclusion:
Now with regard to submission canvassed on behalf of A-27 and after carefully considering the material in his confession and the same having shown the manner in which he had acted in episode it is crystal clear that he was full aware that he was involved in an illegal operation. Having regard to same and so also having regard to the amount received by him it will be difficult to perceive that he was not aware that he was effecting any illegal operation. Now considering the acts committed by him clearly denotes of himself having transported the goods brought into the country at a place which was not a port and all the facts regarding the said operation the same are sufficient to denote of the same being a smuggling operation. However, there being no express evidence of A-27 having seen the nature of goods transported and the evidence having indicated that he cannot be said to be a person present at Wangni tower when the exchange of material from vehicles to another vehicle was effected for concealing the same in cavity and the person from Bombay being only present along with Tiger Memon and A-14 & A-17 his liability would be restricted for commission of offences under Customs Act he would be required to be held guilty only for commission of offence under Section 111 r/w Section 135(b) of Customs Act and would be required to be held not guilty for commission of other offences including that of conspiracy in view of his acts being not of a nature for coming to the conclusion of the same being for furthering the object of conspiracy of or involvement of A-27 in the same.
(Emphasis added)
124. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
125. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we do not find any cogent reason to interfere with the well-reasoned judgment of the Designated Court. The appeal lacks merit, and is accordingly, dismissed.
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114. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent (A- 27) was also charged for participating in the landing and transportation of the arms, ammunition and explosives, using his motor truck bearing registration No. MWT-6683, on 3.2.1993 from Shekhadi to Wangni Tower. About 59 bags of RDX explosives were taken by him in his truck alongwith other co-accused to the field of Tulsi Ram Dhondu Surve where it was buried and concealed.
B. After holding the trial, the respondent had been acquitted of the charge of conspiracy, however, he has been convicted for the other charges as mentioned hereinabove.
Hence, this appeal.
115. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there was sufficient evidence against the respondent (A-27), so far as the participation and transportation of the explosives used in the offences is concerned. Therefore, the acquittal under Section 3(3) TADA and of the charge of general conspiracy is unwarranted. The evidence on record makes it evident that he had knowledge that contrabands were not silver but arms and ammunition. Therefore, the appeal deserves to be allowed and the respondent (A-27) should be convicted for the offences punishable under the aforesaid provisions.
116. Shri Mushtaq Ahmad, learned counsel appearing for the respondent (A-27) has submitted that after appreciating the evidence on record, the Designated Court reached the conclusion after that even if the respondent (A-27) had participated in landing and transportation of contraband, he had no knowledge about its contents. In absence of any knowledge that the contraband contained arms and ammunition, conviction under the provisions of TADA is not permissible. The respondent (A-27) has already served 3 years imprisonment, and paid a fine of Rs.25,000/-. Thus, no further consideration of the appeal is required. Therefore, the appeal is liable to be dismissed.
117. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against him:
Confession of the Respondent Rashid Umar Alware (A-27):
118. In his own confession, Rashid Umar Alware (A-27) has admitted that he owned a truck bearing registration No.MWT-6683 and he drove himself. In the first week of February, 1993 he had participated in the landing and transportation of silver at the behest of other co- accused by driving his truck to Shekhadi village and bringing the contraband. He disclosed that his truck was loaded with contraband and when the truck was moving it was followed by a jeep and they reached Wangni Tower. There two persons took him aside and was asked to wait at one place. After unloading some of the goods he drove the truck away from the Tower. The remaining goods were unloaded and the same was kept in one pit in the land. At that time he was kept at a distance from where unloading of the goods could not be seen. He was paid a sum of Rs.20,000/- for transportation etc.
Confession of Dawood @Dawood Takllya Mohammed Phanse @ Phanasmiyan (A- 14):
119. He disclosed that he was a very close associate of Tiger Memon (AA) and used to participate in landing and transportation of smuggled goods/contraband. In the first week of February, 1993, five-seven persons with him had gone for landing at Shekhadi. As per the pre- arrangement, Rashid Umar Alware (A-27) was called from Borli with his truck and 35-40 persons were arranged for loading and unloading the goods. The goods were brought from the trawlers to the shore by Tiger Memon (AA) and other persons armed with guns and were loaded in the truck.
Confession of Muzamil Umar Kadri (A-25):
120. He (A-25) disclosed that he reached Borli village on 3.2.1993 and asked Rashid Umar Alware (A-27) to accompany him with his truck. He came driving his truck at the place of landing. Other accused persons were there. They reached Shekhadi and the goods were loaded in the truck.
Confession of Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61):
121. He corroborated the version given by other co-accused that on 3.2.1993 the landing took place and the contraband was transported by the truck of the respondent (A-27).
121.1 He also disclosed that most of the persons were not permitted to see when the loading and unloading took place at Wangni Tower.
Confession of Tulsi Ram Dhondu Surve (A-62):
122. He (A-62) has corroborated the version given by other co-accused disclosing that the said truck used for transportation belonged to Rashid Umar Alware (A-27) from Borli and he himself was driving the truck. The goods brought in the Wangni Tower contained guns and pistols. The work of loading of the goods from the truck in a jeep and tempo started after bringing the same by truck from Shekhadi. Out of the aforesaid goods 59 bags remained. The said bags were taken by the truck of the respondent (A-27) in the field and were unloaded on the steps of the house with the help of the labourers on the field and the same were covered with the soil. When he asked Dawood whether those were the silver bricks, he was told that it was Kala Sabun. Tiger Memon (AA) intimidated him and warned not to tell to anyone about the same. Tiger Memon took one bundle from the said bundles and saw the same and ascertained as to whether the goods therein were proper or not and threw the plastic bag at that place and packed the same in another bundle and took the same with him. It was learnt later that one truck had arrived on 4.2.1993 in the evening and carried away the remaining 59 bags.
123. The Designated Court after appreciating the entire evidence on record came to the following conclusion:
Now with regard to submission canvassed on behalf of A-27 and after carefully considering the material in his confession and the same having shown the manner in which he had acted in episode it is crystal clear that he was full aware that he was involved in an illegal operation. Having regard to same and so also having regard to the amount received by him it will be difficult to perceive that he was not aware that he was effecting any illegal operation. Now considering the acts committed by him clearly denotes of himself having transported the goods brought into the country at a place which was not a port and all the facts regarding the said operation the same are sufficient to denote of the same being a smuggling operation. However, there being no express evidence of A-27 having seen the nature of goods transported and the evidence having indicated that he cannot be said to be a person present at Wangni tower when the exchange of material from vehicles to another vehicle was effected for concealing the same in cavity and the person from Bombay being only present along with Tiger Memon and A-14 & A-17 his liability would be restricted for commission of offences under Customs Act he would be required to be held guilty only for commission of offence under Section 111 r/w Section 135(b) of Customs Act and would be required to be held not guilty for commission of other offences including that of conspiracy in view of his acts being not of a nature for coming to the conclusion of the same being for furthering the object of conspiracy of or involvement of A-27 in the same.
(Emphasis added)
124. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
125. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we do not find any cogent reason to interfere with the well-reasoned judgment of the Designated Court. The appeal lacks merit, and is accordingly, dismissed.
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