State of Maharashtra Vs. Sayed Abdul Rehman Shaikh
EmailAppeal: Criminal Appeal No. 600 of 2011
Petitioner: State of Maharashtra
Respondent: Sayed Abdul Rehman Shaikh
Apeal: Criminal Appeal No. 600 of 2011
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA – Acquitted of charge of larger conspiracy – Appeal by State – Appellant a driver, acquainted with Tiger Memon and other accused – Asked to go to Mhasla by Tiger Memon – Goods dug out from a pit and put in a vehicle – Later, on instruction, parked car and unloaded goods with help of others – Went to Mhasla with Tiger Memon and brought 1500 sacks – Got Rs. 5000 for the job – His confessional statement stood corroborated by A11, A14, A18, A30, A17 and A59 – Prosecution’s case supported by deposition of PW. 492 and PW 137 – Whether acquittal of the charge of larger conspiracy justified. Held, this case is similar to that of A18. No different view can be taken. Appeal dismissed. Parameters laid down by court for entertaining appeal against acquittal, applied.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA – Acquitted of charge of larger conspiracy – Appeal by State – Appellant a driver, acquainted with Tiger Memon and other accused – Asked to go to Mhasla by Tiger Memon – Goods dug out from a pit and put in a vehicle – Later, on instruction, parked car and unloaded goods with help of others – Went to Mhasla with Tiger Memon and brought 1500 sacks – Got Rs. 5000 for the job – His confessional statement stood corroborated by A11, A14, A18, A30, A17 and A59 – Prosecution’s case supported by deposition of PW. 492 and PW 137 – Whether acquittal of the charge of larger conspiracy justified. Held, this case is similar to that of A18. No different view can be taken. Appeal dismissed. Parameters laid down by court for entertaining appeal against acquittal, applied.
JUDGEMENT:
Dr. B.S. Chauhan, J.
202. 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 7 years alongwith a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for six months, and secondly RI for 7 years under Section 3(3) TADA, but had been acquitted of the charge of larger conspiracy.
Hence, this appeal.
203. Heard rival submissions by counsel for both parties and perused the evidence on record.
204. The evidence against the said respondent includes his own confession wherein he had disclosed that he was a driver and was acquainted with Tiger Memon (AA), Mohd. Rafiq (A-46), Anwar (AA), Abdul Gani Ismail Turk (A-11), Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30). In April 1992, the accused (A-28) had gone along with Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30) to Ajmer for taking silver. On 5.2.1993 Suleman Mohd. Kasam Ghavate (A-18) took the accused (A-28) to Tiger Memon (AA) who asked him to go to Mhasla. Yeda Yakub gave the accused (A-28) the keys of a tempo in which the accused (A-28) alongwith Suleman Mohd. Kasam Ghavate (A-18) and Abdul Gani Ismail Turk (A-11) went to Mhasla. On the next day, at Mhasla the accused (A-28) met Dawood Taklya (A-14) who took him alongwith other co-accused to Wangni Tower and told them that the goods are to be dug out from a pit. After the goods were taken out, they were placed in the vehicle in the presence of Dawood Taklya (A-14). Then, they came to Nagothane (near Pen) and stayed in a hotel. The accused (A-28) alongwith Tiger Memon (AA) went inside Welcome Hotel wherein they met a man who told the accused (A-28) to park the vehicle in front of Hotel Delhi Darbar at Dahisar Check naka. The accused (A-28) parked the vehicle as directed and the goods were unloaded there with the help of some persons. The accused (A-28) again met Tiger Memon (AA) on 8.2.1993 and went to Mhasla alongwith Anwar and Tiger Memon and brought 1500 sacks from one Gujarati in Pen. On 11.2.1993 Tiger Memon met them at Goa Road and asked Suleman Mohd. Kasam Ghavate (A-18) and the accused (A-28) to accompany him till Kalyan, wherein they handed over the vehicle to Tigers man, namely, Usman Gani Choudhary. The accused (A-28) was paid Rs.5,000/- for the said job.
205. The said confessional statement was duly supported and corroborated by the confessional statements of Abdul Gani Ismail Turk (A-11), Dawood Taklya (A-14), Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30), Sharif Abdul Gafoor Parkar (A-17) and Shakil Shabbuddin Shaikh (A-59).
206. Uttam M. Kale (PW.190) also supported the prosecutions case to the extent that the confessional statement was given by the accused (A-28) voluntarily and it had been recorded strictly in accordance with law. The deposition of Sanjay Pandey (PW.492) and Vijay Govind More (PW.137) also supported the case of the prosecution.
207. After appreciating the evidence on record the learned Designated Court recorded the conclusion as under :-
574) Thus in light of the reasoning given aforesaid, it will be difficult to accept submission of Ld. Chief P.P. to give maximum punishment to A-18 & 28 for the reasons canvassed by him and dealt earlier and so also for any other reason, which is also precisely absent. At the cost of repetition, it will be necessary to say that even it is accepted that smuggling of arms, ammunition and explosives substance, even accepted to be very heinous merely on said count awarding maximum punishment to each of the accused involved in such landings de hors considering the extent of act committed by him and thereby assessing the element of criminality exist in him would amount allowing oneself to be swayed by feeling and would amount of having acted without any logical reasoning behind it. Having regard to the same while awarding punishment to A-18 & 28 it will be necessary to take into account the gravity of the act committed by both of them and so also the other circumstances relevant to same as urged on their behalf or even otherwise.
208. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
209. The instant case is similar as that of Suleman Mohd. Kasam Ghavate (A-18) and therefore, we are not in a position to take a view different to the view taken in that case.
The appeal lacks merit and is accordingly dismissed.
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202. 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 7 years alongwith a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for six months, and secondly RI for 7 years under Section 3(3) TADA, but had been acquitted of the charge of larger conspiracy.
Hence, this appeal.
203. Heard rival submissions by counsel for both parties and perused the evidence on record.
204. The evidence against the said respondent includes his own confession wherein he had disclosed that he was a driver and was acquainted with Tiger Memon (AA), Mohd. Rafiq (A-46), Anwar (AA), Abdul Gani Ismail Turk (A-11), Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30). In April 1992, the accused (A-28) had gone along with Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30) to Ajmer for taking silver. On 5.2.1993 Suleman Mohd. Kasam Ghavate (A-18) took the accused (A-28) to Tiger Memon (AA) who asked him to go to Mhasla. Yeda Yakub gave the accused (A-28) the keys of a tempo in which the accused (A-28) alongwith Suleman Mohd. Kasam Ghavate (A-18) and Abdul Gani Ismail Turk (A-11) went to Mhasla. On the next day, at Mhasla the accused (A-28) met Dawood Taklya (A-14) who took him alongwith other co-accused to Wangni Tower and told them that the goods are to be dug out from a pit. After the goods were taken out, they were placed in the vehicle in the presence of Dawood Taklya (A-14). Then, they came to Nagothane (near Pen) and stayed in a hotel. The accused (A-28) alongwith Tiger Memon (AA) went inside Welcome Hotel wherein they met a man who told the accused (A-28) to park the vehicle in front of Hotel Delhi Darbar at Dahisar Check naka. The accused (A-28) parked the vehicle as directed and the goods were unloaded there with the help of some persons. The accused (A-28) again met Tiger Memon (AA) on 8.2.1993 and went to Mhasla alongwith Anwar and Tiger Memon and brought 1500 sacks from one Gujarati in Pen. On 11.2.1993 Tiger Memon met them at Goa Road and asked Suleman Mohd. Kasam Ghavate (A-18) and the accused (A-28) to accompany him till Kalyan, wherein they handed over the vehicle to Tigers man, namely, Usman Gani Choudhary. The accused (A-28) was paid Rs.5,000/- for the said job.
205. The said confessional statement was duly supported and corroborated by the confessional statements of Abdul Gani Ismail Turk (A-11), Dawood Taklya (A-14), Suleman Mohd. Kasam Ghavate (A-18) and Uttam Potdar (A-30), Sharif Abdul Gafoor Parkar (A-17) and Shakil Shabbuddin Shaikh (A-59).
206. Uttam M. Kale (PW.190) also supported the prosecutions case to the extent that the confessional statement was given by the accused (A-28) voluntarily and it had been recorded strictly in accordance with law. The deposition of Sanjay Pandey (PW.492) and Vijay Govind More (PW.137) also supported the case of the prosecution.
207. After appreciating the evidence on record the learned Designated Court recorded the conclusion as under :-
574) Thus in light of the reasoning given aforesaid, it will be difficult to accept submission of Ld. Chief P.P. to give maximum punishment to A-18 & 28 for the reasons canvassed by him and dealt earlier and so also for any other reason, which is also precisely absent. At the cost of repetition, it will be necessary to say that even it is accepted that smuggling of arms, ammunition and explosives substance, even accepted to be very heinous merely on said count awarding maximum punishment to each of the accused involved in such landings de hors considering the extent of act committed by him and thereby assessing the element of criminality exist in him would amount allowing oneself to be swayed by feeling and would amount of having acted without any logical reasoning behind it. Having regard to the same while awarding punishment to A-18 & 28 it will be necessary to take into account the gravity of the act committed by both of them and so also the other circumstances relevant to same as urged on their behalf or even otherwise.
208. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
209. The instant case is similar as that of Suleman Mohd. Kasam Ghavate (A-18) and therefore, we are not in a position to take a view different to the view taken in that case.
The appeal lacks merit and is accordingly dismissed.
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