State of Maharashtra Vs. Sharif Abdul Gafoor Parkar @ Dadabhai
EmailAppeal: Criminal Appeal No. 391 of 2011
Criminal Appeal No. 391 of 2011
Criminal Appeal No. 391 of 2011
Petitioner: State of Maharashtra
Respondent: Sharif Abdul Gafoor Parkar @ Dadabhai
Apeal: Criminal Appeal No. 391 of 2011
Criminal Appeal No. 391 of 2011
Criminal Appeal No. 391 of 2011
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 6 – Bombay Blast case – Conviction under Sections 3(3) and 6 – However acquittal of charge of conspiracy – As per own confession, admitted participating in smuggling activities, many times- Contacted custom officers on instruction of Tiger Memon for meeting in Hotel Big Splash and discussed landing of contraband with Superintendent A-90 – On 3.2.1993 participated in landing – Due to insufficient space in truck, on instruction of Tiger Memon, Respondent’s men burnt some contraband – Packages containing black-soap burnt by respondent himself – Participated in another landing on 9.2.1993 – Received Rs. 15 lakhs in total, out of which payment made to customs office and police station – His close association with Tiger Memon and facts stated in his confession proved from confessions of A10, A14 and A11, A12, A13, A24, A25, A29, A42, A46, A62, A73 and A100 – As per statement under Section 313 CrPc stated that he knew that all the weapons and explosives were to be used in Bombay Blast to take revenge on Hindus but since Tiger Memon had threatened him he did not disclose the same to anyone – Designated Court, on observing that Respondent did not do anything to further the object of conspiracy, held him not liable for the offence of conspiracy – Justification. Held, respondent’s participation in landing with the knowledge of nature of goods of and purpose and his close association with Tiger Memon warrant his conviction for the charge of conspiracy. Life imprisonment awarded.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 6 – Bombay Blast case – Conviction under Sections 3(3) and 6 – However acquittal of charge of conspiracy – As per own confession, admitted participating in smuggling activities, many times- Contacted custom officers on instruction of Tiger Memon for meeting in Hotel Big Splash and discussed landing of contraband with Superintendent A-90 – On 3.2.1993 participated in landing – Due to insufficient space in truck, on instruction of Tiger Memon, Respondent’s men burnt some contraband – Packages containing black-soap burnt by respondent himself – Participated in another landing on 9.2.1993 – Received Rs. 15 lakhs in total, out of which payment made to customs office and police station – His close association with Tiger Memon and facts stated in his confession proved from confessions of A10, A14 and A11, A12, A13, A24, A25, A29, A42, A46, A62, A73 and A100 – As per statement under Section 313 CrPc stated that he knew that all the weapons and explosives were to be used in Bombay Blast to take revenge on Hindus but since Tiger Memon had threatened him he did not disclose the same to anyone – Designated Court, on observing that Respondent did not do anything to further the object of conspiracy, held him not liable for the offence of conspiracy – Justification. Held, respondent’s participation in landing with the knowledge of nature of goods of and purpose and his close association with Tiger Memon warrant his conviction for the charge of conspiracy. Life imprisonment awarded.
Held:
The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, landing was not of silver and gold, but of arms, ammunition and explosives. The respondent was fully aware of the nature of the smuggled articles and also the purpose for which the contraband goods had been smuggled into India. Even after having such a knowledge, his close association with Tiger Memon (AA) confirmed and he participated and facilitated the transportation of the said articles. (Para 171)
In such a fact-situation, the Special Judge was not justified in acquitting the respondent (A-17) of the charge of conspiracy. (Para 171.1)
JUDGEMENT:
138. 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 (A-17) stood convicted under Section 3(3) TADA, and was awarded punishment of 7 years RI and a fine of Rs.50,000/- and in default of payment of fine, to suffer suitable RI, under Section 5 TADA, he was awarded 10 years RI and a fine of Rs.50,000/-, and in default of payment of fine, further R.I. for one year; and under Section 6 TADA, was awarded 14 years RI, and a fine of Rs.2 lakhs, and in default, to suffer further R.I. for 3 years. All the sentences were directed to run concurrently.
138.1 As the respondent (A-17) has been acquitted of the charge of conspiracy, the present appeal has been filed by the State.
139. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted, that there is ample evidence on record to show that respondent (A-17) was a close associate of Tiger Memon (AA) and was a party throughout in hatching the conspiracy and, therefore, has wrongly been acquitted for the said charge. In the statement of the respondent (A-17) under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC.), before the learned Designated Court, he himself admitted that he was fully aware of the contraband and knew that the same was going to be used against Hindus for taking revenge. Therefore, the appeal deserves to be allowed.
140. Shri Sushil Karanjakar, learned counsel appearing for the respondent (A-17) has submitted that the respondent has already served the sentence of 14 years awarded by the Designated Court and paid the fine and did not file any appeal against his conviction. In spite of the fact that the respondent (A-17) was fully aware that the arms, ammunition and explosives that had been smuggled into India by Tiger Memon (AA) would be used for terrorist activities, he was unable to give any other person this information as he had been threatened with dire consequences. Thus, the respondent (A-17) acted under threat and coercion. It was further submitted that the confessions of the co- accused used by the learned Designated Court to convict the respondent (A-17) were made prior to the date of the amendment i.e. 22.5.1993 except the confession of Nasir Dhakla (A-64). However, the statement of Nasir Dhakla (A-64) cannot be relied upon as there was no corroboration of the same.
140.1 Therefore, at such a belated stage there is no reason to entertain the appeal and convict the said respondent for conspiracy, as he had already suffered enough. Therefore, the appeal is liable to be dismissed.
141. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against the respondent (A-17):
Confessional statement of Dadabhai Parkar (A-17):
142. He disclosed that he was a very close associate of Tiger Memon (AA) and used to participate in smuggling activities. He had been called by Tiger Memon (AA) many times for landing etc. So far as the landing on 3.2.1993 is concerned, he disclosed that on instructions of Tiger Memon he contacted R.K. Singh (A-102), the Customs Officer and told him that he was an informant and asked him to come to hotel Big Splash. He (A-102) expressed his inability to come to the hotel Big Splash but assured that his Superintendent, Sayyed (A-90) would come. The accused (A-17) and Tiger Memon (AA) had some discussion with Sayyed (A-90) and Tiger Memon had told him about his programme of landing of smuggled goods. On 3.2.1993, he (A-17) left with co-accused and participated in the landing and brought the smuggled goods. There was some material in the jeep and cardboard boxes which were covered with gunny cloth. Inside the boxes there was packing of plastic and inside, in some boxes hand bombs, wire, rifles and pistols and cartridges were there. Tiger Memon (AA) had been checking those goods and preparing a list. Baba, Anwar, Shafi and others were keeping the arms and ammunition etc. in the cavities of jeep and tempo. Among the goods that were landed there, a chemical by name black soap was also there. As there was insufficient space in the tempo, Tiger Memon (AA) instructed his man to bury 59 bags in the land opposite the tower. The cardboard boxes and empties were handed over to some persons and they destroyed the same by burning them. As to the packages of black soap which had been torn, Tiger Memon gave them to him (A-17) and instructed him (A-17) that he had to be careful while burning them as they may explode. He burnt the same and at that time heard the noise of explosion which was very mild. The work was complete by 5.00 a.m. and they left for Bombay.
142.1 Again on 9.2.1993 there was another landing and Tiger Memon (AA), Javed, Yakub, Anwar, Shafi, Imtiyaz, Parvez, Mohd. Hussain etc. all proceeded to Wangni Tower. At that time there were 2 tempos, 4 jeeps and one Maruti car. They went to Coastal side at Shekhadi and after receiving the contraband from the trawler they loaded the same in a truck and came to the tower. Two boxes from the tempo were taken out and broken and the goods like pistols, weapons were adjusted in the cavities of the jeep and the empty boxes were burnt.
142.2 It was on 19.2.1993 that he was paid a sum of Rs.5 lakhs by Asgar Mukadam @ Munna. He also received Rs.9 lakhs from Shafi and one lakh from Gani. So, in total he received Rs.15 lakhs and after deducting all the expenses, the three partners received Rs.70/75 thousand each. Out of the said 15 lakhs, he had paid to Customs Office, Shrivardhan; Customs Office, Murud; Customs Office Adgaon; Mhasla Police Station, Shrivardhan Police Station, Borli Out post, Trawler owners, trucks and to Hamals.
Confession of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan A-14:
143. The said accused (A-14) disclosed that he had been doing the work of landing of smuggled goods of various smugglers in partnership with Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), resident of village Sandheri and Rahim Abbas Karbalekar @ Rahim Laundriwala of village Shrivardhan for last 5-6 years. He (A-14) had been attending the landing of silver for last 2 years for Tiger Memon (AA). He disclosed that he had visited Dubai at the instance of Tiger Memon and met Dawood Ibrahim Kaskar. He did not know Dadabhai (A-17), however, he could identify him as he had seen his photograph in the newspaper several times. Dadabhai (A-17) asked him (A-14) as to whether he was interested to work for him and he (A-14) said that he had stopped the work of silver smuggling. He would transport chemicals/explosives and arms consignments. After pressing his teeth Dawood Ibrahim told him (A-14) that Babri Masjid had been put to martyrdom and they have to take revenge and then asked how much it would cost. Then Tiger Memon (AA) told him that it would cost about 9-10 lakhs. Tiger Memon (AA) asked him (A-14) to make the arrangements fully.
143.1 So far as the incident dated 3.2.1993 is concerned, he (A-14) disclosed that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) called Rahim Laundriwala and said that landing had to take place that evening and asked him to make all arrangements and to talk with Customs officers. He (A-17) disclosed about the landing and bringing the smuggled goods by the trucks. He (A-17) came with Tiger Memon (AA) in his jeep and reached the tower where Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) and Tigers men were already present. Tigers men unloaded the goods from the truck. The boxes contained Rifles, pistols, ammunition, wire, hand-grenades, and something looking like black soap. Out of the said boxes, Tiger Memon found something like white pencil and showed it to Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) and told him (A-17) that it could blow up Oberoi Hotel. He (A- 14) further disclosed that he (A-17) had loaded the boxes in the truck of Rashid, there were 59 items and he (A-17) asked Rashid to unload them at the spot which had been dug up for this purpose. Two- three days thereafter, Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) told him (A-14) that the black soap had been loaded by him and other persons in the tempo.
Confessional statement of Asgar Yusuf Mugadam (A-10):
144. He (A-10) disclosed that he (A-17) was very close associate of Tiger Memon (AA) and had participated in the smuggling activities etc. and was involved in landing and transportation of silver, arms and ammunition with Tiger Memon (AA). So far as the present respondent (A- 17) is concerned, he deposed that Tiger Memon (AA) had told the accused (A-10) that Fifteen Lakh rupees are to be given to Dadabhai (A- 17) for landing. The accused (A-10) and Parvez took Rs. 5 lakhs from Chokshi and gave it to Dadabhai (A-17) after going to his residence in Juhu.
Confession of Abdul Gani Ismail Turk (A-11):
145. So far as the present respondent (A-17) is concerned, he stated that he was a close associate of Tiger Memon (AA) who was dealing with the smuggling of gold and silver. He used to go to Mhasla in District Raigad, intermittently. In the first week of September, 1992, he went alongwith Tiger Memon (AA) and others to Mhasla by jeep and Maruti car. On the way, they met Dadabhai (A-17) also. He was indulging in landing and transportation and the respondent (A-17) alongwith 40-50 persons. On about 3rd February, 1993, he disclosed that at about 1 OClock in the night, Tiger Memon (AA) came with many persons including Dadabhai (A-17) alongwith a motor lorry and the goods on that lorry were unloaded at one room of Wangni Tower. Tiger Memon (AA) checked all the goods in their presence and they had witnessed 70/80 black coloured boxes of chemical, 250/300 hand-grenades, 15/20 small pistols and 60-70 big rifles, wires like electrical wires, empty magazines (cassettes) of rifles and large number of bullets. All these were packed in cardboard boxes, carton and gunny bags. In respect of the incident dated 8th/9th March, 1993, this accused (A-11) disclosed about the presence of the said respondent (A-17) alongwith other co- accused persons who had already reached by a Maruti-1000 car at Vesava at about 4.30 a.m. There they took `Sarai and then went to the hill side in the jungle, where Tiger Memon (AA) was throwing hand-grenades in the ditch in order to give training to 5-7 persons. Those persons also practiced on operating rifles. This training went on for two hours. Dadabhai (A-17) was staying downside. When around 5-6 persons assembled there on hearing the sound of gun-firing, Dadabhai (A-17) told them that film shooting was going on the hill, so they went away. Those persons were known to Dadabhai (A-17). It was at that time about 12 Oclock in the noon, those persons after getting training, came down and handed over empty magazines to Dadabhai (A-17) and left for Bombay.
Confessional statement of Parvez Nazir Ahmad Shaikh (A-12):
146. So far as the present respondent (A-17) is concerned, he disclosed that on 3rd February, 1993, after landing the smuggled goods, they were brought to the Wangni Tower in a motor lorry by Tiger Memon (AA) alongwith other co-accused, namely, Shafi, Anwar, Javed, Yakub, Dadabhai (A-17) and Dawood Taklya (A-14) etc. All the goods in the lorry were unloaded in the Wangni Tower and in accordance with the number series written on the packages, all the goods were separated from each other. After shifting the goods/contraband, all the material which was used for packing was burnt by Dadabhai (A-17) and his men, and as there was no space in the vehicles for keeping 59 bags of chemical, they were loaded again in the truck, what happened of those thereafter, he (A-12) did not know. He further deposed that Tiger Memon (AA) had shown a pencil like article and said that this pencil costs Rs.25,000/- and with this pencil, he could explode one Oberoi Hotel. In the entire incident of smuggling on 3rd February, 1993, Dadabhai (A-17) was all along with Tiger Memon (AA) alongwith other persons.
Confessional statement of Mohomed Iqbal Mohomed Yusuf Shaikh (A-23):
147. He disclosed in respect of the incident of landing/transportation, and corroborated the statements of other co- accused and disclosed that Dadabhai (A-17) was present and participated in the said activity and he (A-17) was present when the bomb was thrown by Tiger Bhai and Mehmud while training certain persons on the hillock. After hearing the sound after the explosion, Tiger Memon (AA) told Dadabhai (A-17) that the said hillock was not safe. Then Dadabhai (A-17) took them to another place. The said hill was far away from the earlier place in the jungle. Tiger Memon (AA) made the accused (A-23) and other persons practice gun firing by rifle AK-56. After having training, they came down the hill and found Dadabhai (A-17) standing there near the car and from there they came back to Bombay.
Confessional statement of Shanawaz Abdul Kadar Qureshi (A-29):
148. He corroborated the other co-accused and he disclosed that when landing took place, they brought the contraband and started unloading and separating the goods which were wrapped in gunny bags. The rest of the 50-60 big boxes which were very big, were again loaded in the same truck by them. The empty cartons were burnt by Dadabhai (A-17) and his men. After loading the articles, the truck left.
Confessional statement of Bashir Ahmad Gani Khairulla (A-13):
149. He disclosed that when they went for landing, Tiger Memon (AA) was accompanied by various co-accused including Dadabhai (A-17).
Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-24):
150. He disclosed that at about 4.00 p.m., on 2nd February, 1993, Tiger Memon (AA) came to the Mhasla Tower alongwith 25 boys including Dadabhai (A-17).
Confessional statement of Muzammil Umar Kadri (A-25):
151. He disclosed that Dadabhai (A-17) was the partner of Rahim Laundrywala and Dawood Taklya (A-14) and he had seen all of them near the Wangni Tower.
Confessional statement of Syed Abdul Rahman Kamruddin Syed (A-28):
152. He disclosed the involvement of Dadabhai (A-17) alongwith others in the purchase of sacks for loading and unloading from a firm.
Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42):
153. He disclosed that respondent (A-17) was a close associate of Dawood Taklya (A-14) and Rahim Laundrywala.
Confessional statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46):
154. He disclosed that during the relevant period of 3rd February, 1993, they had been staying at Alibagh alongwith respondent (A-17). He left with Shafi for Sandheri village. The lorry also followed them. On reaching the village Sanderi, Dadabhai (A-17) loaded 40-50 bundles of empty gunny bags in the lorry. Dadabhai (A-17) loaded the truck with 59 gunny bags. The said accused and Dadabhai (A-17) went to the house of Dadabhai (A-17) in Maruti car and found two jeeps already parked near the house.
Confessional statement of Sujjad Alam Abdul Hakim Nazir (A-61):
155. He corroborated the version of the other accused in respect of the loading and unloading at Wangni Tower on 3rd February, 1993 and disclosed that Dadabhai (A-17) was also present there.
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
156. He disclosed about the loading and unloading of contraband at Wangni Tower and participation of Dadabhai (A-17) alongwith other accused.
Confessional statement of Nasir Abdul Kadar Kewel @ Nasir Dhakla (A- 64):
157. He corroborated the version of Tulsi Ram Dhondu Surve (A-62) in all material respect.
Confessional statement of Gulam Hafiz (A-73):
158. He was a hotel employee and disclosed that at the relevant time, respondent (A-17) who was a landing agent of Tiger Memon (AA), and smuggler of gold and silver, came there to the hotel alongwith a person and from there they went to Wangni Tower.
Confessional statement of Mohamed Sultan Sayeed (A-90):
159. He disclosed about the meeting in the hotel with Dadabhai (A-17) and he has called the said accused to furnish some information about landing etc. as he wanted to give secret message to Shri R.K. Singh, Assistant Collector (A-102). He (A-90) also disclosed that this accused (A-17) was son-in-law of A.R.Antulays sister.
Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100):
160. He also corroborated the version of other witnesses/accused, in all material respect and supported the case of the prosecution.
Evidence of Usman (PW-2) :
161. According to his deposition, the witness himself was involved in anti-social activities. He knew respondent (A-17). It was respondent (A-17) who booked the room in hotel Big Splash for the boys of Tiger Memon (AA). Respondent (A-17) helped Tiger Memon (AA) in collecting bags from the trawler. He was the person who had supplied the boys, for loading and unloading the contraband and after shifting the goods, the empty boxes of RDX etc. were destroyed by respondent (A-17). This witness also identified the respondent (A-17) in court.
Evidence of Vijay Govind More (PW-137) :
162. According to this witness, the respondent (A-17) was involved in the smuggling and in the incident of February 1993. He was the agent of landing and transportation with Dawood Phanse (A-14) and had brought the goods to Wangni Tower. Therein, it was shifted from truck to tempos.
163. Harish Chandra Surve (PW-108) corroborated the version given by the respondent (A-17) and he (PW.108) deposed that he had come on the relevant date, i.e., on 3rd February at Wangni Tower alongwith Dawood Phanse (A-14) in jeep and he participated in shifting the goods from truck to tempos. He identified respondent (A-17) in the court.
164. Narendra Thale (PW-141) is the employee of Hotel Big Splash and deposed that respondent (A-17) booked the rooms in Hotel Big Splash and thus, corroborated the version given by Parvez Nazir Ahmed Shaikh (A-12).
165. Vijay D. Kadam (PW-344) supported the version of other witness/ accused and particularly in respect of booking the rooms in Hotel Big Splash by respondent (A-17).
166. Dileep M. Katarmal (PW-284) deposed that he was the Manager of the Company from where the jute bags were purchased in bulk and it was respondent (A-17) with his son Mujib Sharif Parkar (A-131) who had purchased the bags.
167. Jahi S. Kirkire (PW-285) corroborated the version of Dileep M. Katarmal (PW.284) in respect of purchase of gunny bags. Suresh Meecheri (PW.485) is the recovery witness.
168. The aforesaid evidence was considered and appreciated by the learned Designated Court, which recorded the following conclusions:-
i) Respondent (A-17) was guilty of the offences charged directly against him which in its term established his engagement to carry out the object of the conspiracy and it made him guilty in the conspiracy charge also.
ii) Respondent (A-17) was fully aware about the nature of goods smuggled into India that it contained rifles, pistols, bullets, detonators, hand-grenades etc.
(iii) That in spite of the knowledge of nature of contrabands/smuggled goods, respondent (A-17) continued with the operation which he had undertaken.
(iv) Applying the test of judicial pronouncements by this Court, respondent (A-17) was party to a conspiracy for which charge at head firstly was framed against him.
(v) Hardly there was any evidence to reveal that respondent (A-17) was present in the meeting which had taken place in Hotel Big Splash by Tiger Memon.
(vi) Though there was some evidence which created suspicion of high degree regarding involvement of respondent (A-17) in conspiracy for which charge at head firstly was framed, respondent (A-17) was not liable for conspiracy as it was not proved that he was a party to the agreement for commission of illegal acts. As he had not been the party to such meeting, he could not be held liable for conspiracy on the said count alone.
(vii) Respondent (A-17) had effected the landing and continued with the said landing in spite of acquiring the knowledge of said landing being not of silver and being of arms, ammunitions and explosive substance. He was not liable for offence of conspiracy as his act had not transcended beyond effecting the said landing for which he had agreed before knowing precise nature of goods to be smuggled.
(viii) Respondent (A-17) did not do anything to furthering the object of conspiracy. Therefore, he could not be held liable for the offence of conspiracy. Thus, he did not act for furthering the object of conspiracy and was not liable for the said offence. More so, he did not participate in the crime committed at Bombay in furtherance of the object of conspiracy.
168.1 The aforesaid findings make it crystal clear that they were mutually inconsistent and could not be in consonance with each other.
169. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
170. The respondent (A-17) while making his statement under Section 313 CrPC answered the court as under:
I knew that all the weapons and explosives were to be used in Mumbai and that Bombay Blast were to be brought about at various places and that revenge on Hindus was to be taken. But since Tiger Memon had threatened him he did not disclose the same to anyone.
171. The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, landing was not of silver and gold, but of arms, ammunition and explosives. The respondent was fully aware of the nature of the smuggled articles and also the purpose for which the contraband goods had been smuggled into India. Even after having such a knowledge, his close association with Tiger Memon (AA) confirmed and he participated and facilitated the transportation of the said articles.
171.1 In such a fact-situation, the Special Judge was not justified in acquitting the respondent (A-17) of the charge of conspiracy.
171.2 The appeal is allowed. The respondent is convicted for the charge firstly, and awarded the life imprisonment. He 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.
138.1 As the respondent (A-17) has been acquitted of the charge of conspiracy, the present appeal has been filed by the State.
139. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted, that there is ample evidence on record to show that respondent (A-17) was a close associate of Tiger Memon (AA) and was a party throughout in hatching the conspiracy and, therefore, has wrongly been acquitted for the said charge. In the statement of the respondent (A-17) under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC.), before the learned Designated Court, he himself admitted that he was fully aware of the contraband and knew that the same was going to be used against Hindus for taking revenge. Therefore, the appeal deserves to be allowed.
140. Shri Sushil Karanjakar, learned counsel appearing for the respondent (A-17) has submitted that the respondent has already served the sentence of 14 years awarded by the Designated Court and paid the fine and did not file any appeal against his conviction. In spite of the fact that the respondent (A-17) was fully aware that the arms, ammunition and explosives that had been smuggled into India by Tiger Memon (AA) would be used for terrorist activities, he was unable to give any other person this information as he had been threatened with dire consequences. Thus, the respondent (A-17) acted under threat and coercion. It was further submitted that the confessions of the co- accused used by the learned Designated Court to convict the respondent (A-17) were made prior to the date of the amendment i.e. 22.5.1993 except the confession of Nasir Dhakla (A-64). However, the statement of Nasir Dhakla (A-64) cannot be relied upon as there was no corroboration of the same.
140.1 Therefore, at such a belated stage there is no reason to entertain the appeal and convict the said respondent for conspiracy, as he had already suffered enough. Therefore, the appeal is liable to be dismissed.
141. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against the respondent (A-17):
Confessional statement of Dadabhai Parkar (A-17):
142. He disclosed that he was a very close associate of Tiger Memon (AA) and used to participate in smuggling activities. He had been called by Tiger Memon (AA) many times for landing etc. So far as the landing on 3.2.1993 is concerned, he disclosed that on instructions of Tiger Memon he contacted R.K. Singh (A-102), the Customs Officer and told him that he was an informant and asked him to come to hotel Big Splash. He (A-102) expressed his inability to come to the hotel Big Splash but assured that his Superintendent, Sayyed (A-90) would come. The accused (A-17) and Tiger Memon (AA) had some discussion with Sayyed (A-90) and Tiger Memon had told him about his programme of landing of smuggled goods. On 3.2.1993, he (A-17) left with co-accused and participated in the landing and brought the smuggled goods. There was some material in the jeep and cardboard boxes which were covered with gunny cloth. Inside the boxes there was packing of plastic and inside, in some boxes hand bombs, wire, rifles and pistols and cartridges were there. Tiger Memon (AA) had been checking those goods and preparing a list. Baba, Anwar, Shafi and others were keeping the arms and ammunition etc. in the cavities of jeep and tempo. Among the goods that were landed there, a chemical by name black soap was also there. As there was insufficient space in the tempo, Tiger Memon (AA) instructed his man to bury 59 bags in the land opposite the tower. The cardboard boxes and empties were handed over to some persons and they destroyed the same by burning them. As to the packages of black soap which had been torn, Tiger Memon gave them to him (A-17) and instructed him (A-17) that he had to be careful while burning them as they may explode. He burnt the same and at that time heard the noise of explosion which was very mild. The work was complete by 5.00 a.m. and they left for Bombay.
142.1 Again on 9.2.1993 there was another landing and Tiger Memon (AA), Javed, Yakub, Anwar, Shafi, Imtiyaz, Parvez, Mohd. Hussain etc. all proceeded to Wangni Tower. At that time there were 2 tempos, 4 jeeps and one Maruti car. They went to Coastal side at Shekhadi and after receiving the contraband from the trawler they loaded the same in a truck and came to the tower. Two boxes from the tempo were taken out and broken and the goods like pistols, weapons were adjusted in the cavities of the jeep and the empty boxes were burnt.
142.2 It was on 19.2.1993 that he was paid a sum of Rs.5 lakhs by Asgar Mukadam @ Munna. He also received Rs.9 lakhs from Shafi and one lakh from Gani. So, in total he received Rs.15 lakhs and after deducting all the expenses, the three partners received Rs.70/75 thousand each. Out of the said 15 lakhs, he had paid to Customs Office, Shrivardhan; Customs Office, Murud; Customs Office Adgaon; Mhasla Police Station, Shrivardhan Police Station, Borli Out post, Trawler owners, trucks and to Hamals.
Confession of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan A-14:
143. The said accused (A-14) disclosed that he had been doing the work of landing of smuggled goods of various smugglers in partnership with Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), resident of village Sandheri and Rahim Abbas Karbalekar @ Rahim Laundriwala of village Shrivardhan for last 5-6 years. He (A-14) had been attending the landing of silver for last 2 years for Tiger Memon (AA). He disclosed that he had visited Dubai at the instance of Tiger Memon and met Dawood Ibrahim Kaskar. He did not know Dadabhai (A-17), however, he could identify him as he had seen his photograph in the newspaper several times. Dadabhai (A-17) asked him (A-14) as to whether he was interested to work for him and he (A-14) said that he had stopped the work of silver smuggling. He would transport chemicals/explosives and arms consignments. After pressing his teeth Dawood Ibrahim told him (A-14) that Babri Masjid had been put to martyrdom and they have to take revenge and then asked how much it would cost. Then Tiger Memon (AA) told him that it would cost about 9-10 lakhs. Tiger Memon (AA) asked him (A-14) to make the arrangements fully.
143.1 So far as the incident dated 3.2.1993 is concerned, he (A-14) disclosed that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) called Rahim Laundriwala and said that landing had to take place that evening and asked him to make all arrangements and to talk with Customs officers. He (A-17) disclosed about the landing and bringing the smuggled goods by the trucks. He (A-17) came with Tiger Memon (AA) in his jeep and reached the tower where Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) and Tigers men were already present. Tigers men unloaded the goods from the truck. The boxes contained Rifles, pistols, ammunition, wire, hand-grenades, and something looking like black soap. Out of the said boxes, Tiger Memon found something like white pencil and showed it to Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) and told him (A-17) that it could blow up Oberoi Hotel. He (A- 14) further disclosed that he (A-17) had loaded the boxes in the truck of Rashid, there were 59 items and he (A-17) asked Rashid to unload them at the spot which had been dug up for this purpose. Two- three days thereafter, Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) told him (A-14) that the black soap had been loaded by him and other persons in the tempo.
Confessional statement of Asgar Yusuf Mugadam (A-10):
144. He (A-10) disclosed that he (A-17) was very close associate of Tiger Memon (AA) and had participated in the smuggling activities etc. and was involved in landing and transportation of silver, arms and ammunition with Tiger Memon (AA). So far as the present respondent (A- 17) is concerned, he deposed that Tiger Memon (AA) had told the accused (A-10) that Fifteen Lakh rupees are to be given to Dadabhai (A- 17) for landing. The accused (A-10) and Parvez took Rs. 5 lakhs from Chokshi and gave it to Dadabhai (A-17) after going to his residence in Juhu.
Confession of Abdul Gani Ismail Turk (A-11):
145. So far as the present respondent (A-17) is concerned, he stated that he was a close associate of Tiger Memon (AA) who was dealing with the smuggling of gold and silver. He used to go to Mhasla in District Raigad, intermittently. In the first week of September, 1992, he went alongwith Tiger Memon (AA) and others to Mhasla by jeep and Maruti car. On the way, they met Dadabhai (A-17) also. He was indulging in landing and transportation and the respondent (A-17) alongwith 40-50 persons. On about 3rd February, 1993, he disclosed that at about 1 OClock in the night, Tiger Memon (AA) came with many persons including Dadabhai (A-17) alongwith a motor lorry and the goods on that lorry were unloaded at one room of Wangni Tower. Tiger Memon (AA) checked all the goods in their presence and they had witnessed 70/80 black coloured boxes of chemical, 250/300 hand-grenades, 15/20 small pistols and 60-70 big rifles, wires like electrical wires, empty magazines (cassettes) of rifles and large number of bullets. All these were packed in cardboard boxes, carton and gunny bags. In respect of the incident dated 8th/9th March, 1993, this accused (A-11) disclosed about the presence of the said respondent (A-17) alongwith other co- accused persons who had already reached by a Maruti-1000 car at Vesava at about 4.30 a.m. There they took `Sarai and then went to the hill side in the jungle, where Tiger Memon (AA) was throwing hand-grenades in the ditch in order to give training to 5-7 persons. Those persons also practiced on operating rifles. This training went on for two hours. Dadabhai (A-17) was staying downside. When around 5-6 persons assembled there on hearing the sound of gun-firing, Dadabhai (A-17) told them that film shooting was going on the hill, so they went away. Those persons were known to Dadabhai (A-17). It was at that time about 12 Oclock in the noon, those persons after getting training, came down and handed over empty magazines to Dadabhai (A-17) and left for Bombay.
Confessional statement of Parvez Nazir Ahmad Shaikh (A-12):
146. So far as the present respondent (A-17) is concerned, he disclosed that on 3rd February, 1993, after landing the smuggled goods, they were brought to the Wangni Tower in a motor lorry by Tiger Memon (AA) alongwith other co-accused, namely, Shafi, Anwar, Javed, Yakub, Dadabhai (A-17) and Dawood Taklya (A-14) etc. All the goods in the lorry were unloaded in the Wangni Tower and in accordance with the number series written on the packages, all the goods were separated from each other. After shifting the goods/contraband, all the material which was used for packing was burnt by Dadabhai (A-17) and his men, and as there was no space in the vehicles for keeping 59 bags of chemical, they were loaded again in the truck, what happened of those thereafter, he (A-12) did not know. He further deposed that Tiger Memon (AA) had shown a pencil like article and said that this pencil costs Rs.25,000/- and with this pencil, he could explode one Oberoi Hotel. In the entire incident of smuggling on 3rd February, 1993, Dadabhai (A-17) was all along with Tiger Memon (AA) alongwith other persons.
Confessional statement of Mohomed Iqbal Mohomed Yusuf Shaikh (A-23):
147. He disclosed in respect of the incident of landing/transportation, and corroborated the statements of other co- accused and disclosed that Dadabhai (A-17) was present and participated in the said activity and he (A-17) was present when the bomb was thrown by Tiger Bhai and Mehmud while training certain persons on the hillock. After hearing the sound after the explosion, Tiger Memon (AA) told Dadabhai (A-17) that the said hillock was not safe. Then Dadabhai (A-17) took them to another place. The said hill was far away from the earlier place in the jungle. Tiger Memon (AA) made the accused (A-23) and other persons practice gun firing by rifle AK-56. After having training, they came down the hill and found Dadabhai (A-17) standing there near the car and from there they came back to Bombay.
Confessional statement of Shanawaz Abdul Kadar Qureshi (A-29):
148. He corroborated the other co-accused and he disclosed that when landing took place, they brought the contraband and started unloading and separating the goods which were wrapped in gunny bags. The rest of the 50-60 big boxes which were very big, were again loaded in the same truck by them. The empty cartons were burnt by Dadabhai (A-17) and his men. After loading the articles, the truck left.
Confessional statement of Bashir Ahmad Gani Khairulla (A-13):
149. He disclosed that when they went for landing, Tiger Memon (AA) was accompanied by various co-accused including Dadabhai (A-17).
Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-24):
150. He disclosed that at about 4.00 p.m., on 2nd February, 1993, Tiger Memon (AA) came to the Mhasla Tower alongwith 25 boys including Dadabhai (A-17).
Confessional statement of Muzammil Umar Kadri (A-25):
151. He disclosed that Dadabhai (A-17) was the partner of Rahim Laundrywala and Dawood Taklya (A-14) and he had seen all of them near the Wangni Tower.
Confessional statement of Syed Abdul Rahman Kamruddin Syed (A-28):
152. He disclosed the involvement of Dadabhai (A-17) alongwith others in the purchase of sacks for loading and unloading from a firm.
Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42):
153. He disclosed that respondent (A-17) was a close associate of Dawood Taklya (A-14) and Rahim Laundrywala.
Confessional statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46):
154. He disclosed that during the relevant period of 3rd February, 1993, they had been staying at Alibagh alongwith respondent (A-17). He left with Shafi for Sandheri village. The lorry also followed them. On reaching the village Sanderi, Dadabhai (A-17) loaded 40-50 bundles of empty gunny bags in the lorry. Dadabhai (A-17) loaded the truck with 59 gunny bags. The said accused and Dadabhai (A-17) went to the house of Dadabhai (A-17) in Maruti car and found two jeeps already parked near the house.
Confessional statement of Sujjad Alam Abdul Hakim Nazir (A-61):
155. He corroborated the version of the other accused in respect of the loading and unloading at Wangni Tower on 3rd February, 1993 and disclosed that Dadabhai (A-17) was also present there.
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
156. He disclosed about the loading and unloading of contraband at Wangni Tower and participation of Dadabhai (A-17) alongwith other accused.
Confessional statement of Nasir Abdul Kadar Kewel @ Nasir Dhakla (A- 64):
157. He corroborated the version of Tulsi Ram Dhondu Surve (A-62) in all material respect.
Confessional statement of Gulam Hafiz (A-73):
158. He was a hotel employee and disclosed that at the relevant time, respondent (A-17) who was a landing agent of Tiger Memon (AA), and smuggler of gold and silver, came there to the hotel alongwith a person and from there they went to Wangni Tower.
Confessional statement of Mohamed Sultan Sayeed (A-90):
159. He disclosed about the meeting in the hotel with Dadabhai (A-17) and he has called the said accused to furnish some information about landing etc. as he wanted to give secret message to Shri R.K. Singh, Assistant Collector (A-102). He (A-90) also disclosed that this accused (A-17) was son-in-law of A.R.Antulays sister.
Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100):
160. He also corroborated the version of other witnesses/accused, in all material respect and supported the case of the prosecution.
Evidence of Usman (PW-2) :
161. According to his deposition, the witness himself was involved in anti-social activities. He knew respondent (A-17). It was respondent (A-17) who booked the room in hotel Big Splash for the boys of Tiger Memon (AA). Respondent (A-17) helped Tiger Memon (AA) in collecting bags from the trawler. He was the person who had supplied the boys, for loading and unloading the contraband and after shifting the goods, the empty boxes of RDX etc. were destroyed by respondent (A-17). This witness also identified the respondent (A-17) in court.
Evidence of Vijay Govind More (PW-137) :
162. According to this witness, the respondent (A-17) was involved in the smuggling and in the incident of February 1993. He was the agent of landing and transportation with Dawood Phanse (A-14) and had brought the goods to Wangni Tower. Therein, it was shifted from truck to tempos.
163. Harish Chandra Surve (PW-108) corroborated the version given by the respondent (A-17) and he (PW.108) deposed that he had come on the relevant date, i.e., on 3rd February at Wangni Tower alongwith Dawood Phanse (A-14) in jeep and he participated in shifting the goods from truck to tempos. He identified respondent (A-17) in the court.
164. Narendra Thale (PW-141) is the employee of Hotel Big Splash and deposed that respondent (A-17) booked the rooms in Hotel Big Splash and thus, corroborated the version given by Parvez Nazir Ahmed Shaikh (A-12).
165. Vijay D. Kadam (PW-344) supported the version of other witness/ accused and particularly in respect of booking the rooms in Hotel Big Splash by respondent (A-17).
166. Dileep M. Katarmal (PW-284) deposed that he was the Manager of the Company from where the jute bags were purchased in bulk and it was respondent (A-17) with his son Mujib Sharif Parkar (A-131) who had purchased the bags.
167. Jahi S. Kirkire (PW-285) corroborated the version of Dileep M. Katarmal (PW.284) in respect of purchase of gunny bags. Suresh Meecheri (PW.485) is the recovery witness.
168. The aforesaid evidence was considered and appreciated by the learned Designated Court, which recorded the following conclusions:-
i) Respondent (A-17) was guilty of the offences charged directly against him which in its term established his engagement to carry out the object of the conspiracy and it made him guilty in the conspiracy charge also.
ii) Respondent (A-17) was fully aware about the nature of goods smuggled into India that it contained rifles, pistols, bullets, detonators, hand-grenades etc.
(iii) That in spite of the knowledge of nature of contrabands/smuggled goods, respondent (A-17) continued with the operation which he had undertaken.
(iv) Applying the test of judicial pronouncements by this Court, respondent (A-17) was party to a conspiracy for which charge at head firstly was framed against him.
(v) Hardly there was any evidence to reveal that respondent (A-17) was present in the meeting which had taken place in Hotel Big Splash by Tiger Memon.
(vi) Though there was some evidence which created suspicion of high degree regarding involvement of respondent (A-17) in conspiracy for which charge at head firstly was framed, respondent (A-17) was not liable for conspiracy as it was not proved that he was a party to the agreement for commission of illegal acts. As he had not been the party to such meeting, he could not be held liable for conspiracy on the said count alone.
(vii) Respondent (A-17) had effected the landing and continued with the said landing in spite of acquiring the knowledge of said landing being not of silver and being of arms, ammunitions and explosive substance. He was not liable for offence of conspiracy as his act had not transcended beyond effecting the said landing for which he had agreed before knowing precise nature of goods to be smuggled.
(viii) Respondent (A-17) did not do anything to furthering the object of conspiracy. Therefore, he could not be held liable for the offence of conspiracy. Thus, he did not act for furthering the object of conspiracy and was not liable for the said offence. More so, he did not participate in the crime committed at Bombay in furtherance of the object of conspiracy.
168.1 The aforesaid findings make it crystal clear that they were mutually inconsistent and could not be in consonance with each other.
169. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
170. The respondent (A-17) while making his statement under Section 313 CrPC answered the court as under:
I knew that all the weapons and explosives were to be used in Mumbai and that Bombay Blast were to be brought about at various places and that revenge on Hindus was to be taken. But since Tiger Memon had threatened him he did not disclose the same to anyone.
171. The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, landing was not of silver and gold, but of arms, ammunition and explosives. The respondent was fully aware of the nature of the smuggled articles and also the purpose for which the contraband goods had been smuggled into India. Even after having such a knowledge, his close association with Tiger Memon (AA) confirmed and he participated and facilitated the transportation of the said articles.
171.1 In such a fact-situation, the Special Judge was not justified in acquitting the respondent (A-17) of the charge of conspiracy.
171.2 The appeal is allowed. The respondent is convicted for the charge firstly, and awarded the life imprisonment. He 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.
