State of Maharashtra Vs. Shaikh Mohd. Ethesham
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Charge under Section 3(3), TADA and charge of conspiracy – Allegations of participation in smuggling, landing and transportation of arms, ammunition at Shekhadi, agreeing to take weapon training in Pakistan for committing terrorist acts, attending conspiratorial meeting at Khar to plan terrorist acts and taking oath not to reveal anything – Proved by confessional Statements of A-64, A-109, A-114, A126, A127, A-128 and A-130 and by evidence of PW-2 and PW-207 – Conviction under Section 3(3) – Acquittal of charge of conspiracy – Justification – Designated court ‘s finding that A58, respondent was a close associate of TM, he knew about the nature of contraband in whose landing he participated and his acts showed that he was a party to conspiracy to commit terrorist acts – Yet holding him not guilty for larger conspiracy as acts committed by him were much prior to main conspiracy and after returning from Dubai he did not participate in any act furthering object of larger conspiracy. Held, in view of the fact that he has undergone 10 years imprisonment and has paid fine, appeal dismissed.
227. Facts and circumstances giving rise to this appeal are that :
A. In addition to the general charge of conspiracy, the respondent (A-58) had been charged under Section 3(3) TADA, firstly on the ground, that he had participated and assisted Tiger Memon (AA) and his associates in smuggling, landing and transportation of arms, ammunition etc., into India for the purpose of terrorist activities. Secondly, he had assisted in landing at Shekhadi on 3rd and 7th February, 1993 and had further agreed to undergo a training in Pakistan for handling of arms, ammunition and explosives for committing terrorist acts and had even attended a conspiratorial meeting at Dubai to plan commission of terrorist acts.
B. After conclusion of the trial, the Designated Court convicted the respondent as referred to hereinabove, but acquitted of the charge of larger conspiracy.
Hence, this appeal.
228. Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, has submitted that the respondent had been a very close associate of Tiger Memon and had participated in landing and went to Dubai for the purpose of getting training in handling of arms, ammunition and explosives, attending the conspiratorial meetings at Dubai. Therefore, the learned Designated Court under TADA, committed an error in acquitting him of the first charge of larger conspiracy. Thus, the appeal deserves to be allowed.
229. Ms. Farhana Shah, learned counsel appearing on behalf of the respondent, has opposed the appeal contending that the respondent had already served the sentence of 10 years and paid the fine. He did not file any appeal against the conviction. Though he went to Dubai for going to Pakistan for having training in handling of arms, ammunition and explosives, but did not get any training whatsoever, and his acts were prior to hatching of the conspiracy. He did not participate in any of the illegal activity/conspiracy subsequent to coming back from Dubai. Therefore, the order impugned does not need any interference whatsoever.
230. We have considered the rival submissions made by learned counsel for the parties and perused the record.
231. The evidence against the said respondent (A-58) is disclosed in the confessional statements of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64), Shaikh Kasam @ Babulal Ismail Shaikh (A-109), Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Shaikh (A-126), Mohd. Iqbal Shaikh Ibrahim (A-127), Shahnawaz Khan Faiz Mohd. Khan (A-128) and Murad Ibrahim Khan (A-130). The said confessional statements revealed that the respondent (A-58) had participated in the landing at Shekhadi. He was present at the Wangni Tower at the time of shifting the contraband and had also participated in second landing at Shekhadi. He had also attended the meeting in a partially constructed building in Khar and agreed to go out of India for receiving the arms training in Pakistan. He went to Dubai on 14.2.1993, but could not go to Pakistan and stayed in Dubai for 14 days and returned to India on 2.3.1993. While in Dubai, he had taken an oath of secrecy that he would not disclose anything about the conspiracy to anyone.
231.1 The aforesaid evidence also stands corroborated by the evidence of Usman Ahmed Jan Khan (PW-2) and Prakash Ramugade (PW-207).
232. The Designated Court after appreciating the entire evidence on record reached the conclusion as under:
Thus considering material in the confession of A-58 and aforesaid co-accused the same leads to the conclusion of A-58 also being involved in Shekhadi landing operation as denoted by said material and as such having committed offence u/s. 3(3) of TADA for which he is charged at head 2nd ly clause `a. In the said context it is necessary to add that considering evidence pertaining to Shekhadi landing in proper perspective and role carried out by A-58 in the same and during said operation contraband material being opened at the sea shore and so also exchanged from truck to other vehicles at Wangni Tower, the defence submission that A-58 was not aware about nature of contraband material to be brought etc. does not appeal to mind. Needless to add that considering material in confession of other co-accused regarding Shekhadi landing episode it is difficult to accept such submission. Needless to add that A-58 was man of close confidence of Tiger Memon is being also revealed from fact of himself being given weapon during relevant operation.
Similarly A-58 himself having participated in said operation in which large quantity of arms, ammunition and explosives were smuggled into India leading to legitimate conclusion of same being brought for commission of terrorist act and still A-58 thereafter having agreed to undergo weapon training in operating arms, ammunition in foreign country and in said process having gone to Dubai but being required to return in view of further arrangements being not made clearly denotes A- 58 was party to conspiracy to commit terrorist act punishable u/sec. 3(3) of TADA Act.
However all said acts committed by A-58 being much prior to main conspiracy of committing serial blast having taken final shape i.e. during conspiratorial meetings held in month of March, 1993 and A-58 after returning from Dubai having not participated in any act furthering object of larger conspiracy for which charge at head 1st ly in framed he cannot be held liable for larger conspiracy and he will be required to be held guilty for conspiracy to commit terrorist act as stated aforesaid.
233. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
234. In view of the fact that the respondent has already served the sentence of 10 years and paid the fine, therefore we are not inclined to allow this appeal. It is accordingly dismissed.