Sudhanwa Sadashiv Talavdekar Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 3(2)(i)(ii), (4), 5 and 6 – Penal Code, 1860, Section 120B read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay Blast case – Transportation of arms and ammunitions – Appellant A-113 was Superintendent of Customs, Shriwardhan Circle, Alibagh – Facilitating landing of contraband in lieu of illegal gratification – Confessional statements of appellants, co-accused A-82, A-14, A-17, A-90, A-30, A-64 and depositions of PWs 154, 2, 165, 149, 591 and 470 – Evidence on record, showing involvement of accused in facilitating landing of contraband – Investment of money taken as illegal gratification proved by depositions of PWs 165 and 149. Held conviction under Section 3(3) of TADA justified.
428. This appeal has been preferred against the judgments and orders dated 2.11.2006 and 29.5.2007 passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast, Greater Bombay in the Bombay Blast Case No.1/93, by which the appellant (A-113) has been found guilty and has been convicted under Section 3(3) TADA and has been sentenced to undergo RI for 8 years alongwith a fine of Rs.2,00,000/- and in default of payment of fine, to suffer further RI for 3 years.
429. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he has also been charged under Section 3(3) TADA for aiding, abetting, and knowingly facilitating the smuggling of arms, ammunition and explosives, which were smuggled into India while he was posted as the Superintendent of Customs, Shriwardhan Circle of the Alibagh Division, Raigad Dist. Maharashtra.
B. Upon the conclusion of the trial, the appellant (A-113) was found guilty under Section 3(3) TADA and has been convicted and sentenced as mentioned hereinabove. He (A-113) was however, acquitted of the general charge of conspiracy.
Hence, this appeal.
430. The appellant appeared in person and argued that his confession was obtained by coercion and was retracted within 20 days. There are contradictions in the statements made by both the witnesses, Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17). Therefore, their confessions cannot be relied upon. He had falsely been enroped in the case. Thus, the appeal should be allowed.
431. Shri Mukul Gupta, learned senior counsel appearing for the State has vehemently opposed this appeal, and has submitted that the appellant had been named specifically in the confessional statements by the co-accused. He was taking illegal gratification in lieu of not seizing contraband goods that were being smuggled into the country, which was within his power and also his duty. Thus, the appeal should be dismissed.
432. We have considered the rival submissions made by learned counsel for the parties and perused the record.
433. Evidence against the appellant (A-113):
(a) Confessional statement of the appellant
(b) Confessional statement of Jaywant Keshav Gurav (A-82)
(c) Confessional statement of Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)
(d) Confessional statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
(e) Confessional statement of Mohmed Sultan Sayyed (A-90)
(f) Confessional statement of Uttam Shantaram Potdar (A-30)
(g) Confessional statement of Nasir Abdul Kader Kewal @Nasir Dakhla (A-64)
(h) Deposition of Yashwant Balu Lotale (PW-154)
(i) Deposition of Usman (PW-2)
(j) Deposition of Bharat Hiramal Jain (PW-165)
(k) Deposition of Dipak Balkrishna Rauth (PW-149)
(l) Deposition of Chandrashekhar (PW-591)
(m) Deposition of Shivkumar Bhardwaj (PW-470)
434. Confessional Statement of S.S. Talwadekar (A-113):
The evidence against the appellant (A-113) is his own confession made on 2nd/4th May, 1993 which was recorded by Tikaram S. Bhal (PW.191). In his confessional statement, he has admitted that he had gone several times to the house of Rahim Laundriwala alongwith Jaywant Keshav Gurav (A-82) and that he was closely associated with Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and Bashir Mandlekar, who were landing agents. He (A-113) would seek information about smuggling and also about the collecting of money for facilitating the landing and transportation of smuggled contraband silver and gold. He (A-113) had gone to the house of Rahim Laundriwala alongwith Jaywant Keshav Gurav (A-82), Customs Inspector and had taken an amount of Rs.1,60,000/- from him which he (A-113) had distributed to others, and had kept a sum of Rs.72,000/- for himself. For each landing, he (A-113) was paid an amount of Rs.1,60,000, which he would distribute among the others, while keeping a substantial share for himself. However, for the landing on 3.12.1992 he had received only Rs.1,50,000/- from Uttam Shantaram Potdar (A-30), and after distribution of amounts to other officers, his own share became limited to only Rs.45,000/-.
After the riots between December, 1992 and January, 1993 in Bombay, Rahim Laundriwala had told him (A-113) that the situation was very tense, however, despite this, the said landing would take place. The appellant (A-113) proceeded on leave from 9.1.1993 to 23.1.1993, and learnt only subsequently, that a landing had taken place on 9.1.1993. Despite the fact that he had been on leave on the said date, he (A-113) had received a sum of Rs.40,000/- from Uttam Shantaram Potdar (A-30). The appellant (A-113) had also received a message from Rahim Laundriwala that another landing of silver would take place on 29.1.1993 at Shekhadi, but subsequently, he was informed that the said landing could not take place.
Regarding the incident of the landing on 2.2.1993, the appellant (A-113) has stated that he had gone alongwith Jaywant Keshav Gurav (A-82), Customs Inspector, to Shekhadi. In fact, in light of the fact that he had received directions from his superior officers, to be on guard, as it was likely that arms and ammunition would be smuggled alongwith silver and gold, he had gone to Shekhadi. It was dark at about 10.30 – 11.00 p.m., and when the appellant (A-113) reached the said place, with Jaywant Keshav Gurav (A-82), Customs Inspector. Here, he found Rahim Laundriwala and Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14), who introduced him to Tiger Memon (AA). Tiger Memon asked the appellant (A-113) whether he was the Superintendent Inspector, and when the appellant (A-113) answered in the affirmative, Tiger Memon told him (A-113) that he had been trying to contact the appellant for 2-3 days, however he had failed in his attempts to do so. The appellant (A-113) also asked Tiger Memon whether he was smuggling weapons etc. To the said question, Tiger Memon (AA) replied that he would never indulge in such activities. The appellant (A-113) has further confessed that even for the said landing, Jaywant Keshav Gurav (A-82), Customs Inspector, had received a sum of Rs.1,60,000/-, which had been distributed, and the appellant in turn, had received a sum of Rs.54,000/- as his share. He has further stated that he had spent all the money that he had received from the smugglers from time to time. He has provided details of the passbook account numbers of his son, which were recovered by the CBI.
435. According to the confessional statement of the appellant (A-113), he had been associated with the smugglers and had also met Tiger Memon (AA). He had been receiving money, distributing the same amongst other officers, and had also been spending it himself. However, his case is that he was on leave from 9.1.1993 to 23.1.1993. Subsequently, he had met Tiger Memon (AA). He (A- 113) had been receiving money regularly and had even been paid his share for landings that had taken place while he was on leave. He retracted his statement on 24.5.1993 (after 20 days, in writing, which was prepared by his advocate Hegde), stating that he had been asked to simply sign papers, and that he had not actually made any confessional statement.
436. Confessional statement of Jaywant Keshav Gurav (A-82):
In his confessional statement recorded by Tikaram S. Bhal (PW.191), he has deposed that he had been working with the appellant (A-113) who was the Superintendent (Customs) and has corroborated the confessional statement of the appellant (A-113), regarding visiting Rahim Laundriwala and collecting money from him. He has made a statement that once he, alongwith the appellant (A-113), had gone to the house of Rahim Laundriwala and that the latter had paid an amount of Rs.1,60,000/- to the appellant (A-113), and that the said amount was distributed amongst employees and Inspectors at the Custom Office, including to Jaywant Keshav Gurav (A-82). He (A-82) has further narrated similar incidents of visiting the house of Rahim Laundriwala, the collection of money by the appellant and the distribution of the same to other officers on 17.9.1992, and in the month of September 1992, the first week of October 1992, and in the first week of November 1992.
437. Confessional statement of Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14):
Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) has implicated the appellant (A-113) in his confessional statement Exts. 855 and 855A which has been duly accepted by the Designated Court. Here, he has made statements regarding the payment of money, and the full co-operation of the appellant in activities connected to smuggling, landing and transportation.
438. Confessional statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17):
He is also a landing agent. Similarly, Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) has made disclosure statements regarding the acceptance of money by the appellant (A-113), and the distribution of the same amongst officers before him. He has deposed that a sum of Rs.2.20 lakhs had been given collectively to the appellant and to Jaywant Keshav Gurav (A-82).
439. Confessional statement of Mohmed Sultan Sayyed (A-90):
He has supported the case of the prosecution to the extent that he had also gone alongwith the appellant (A-113) to Jaywant Keshav Gurav (A-82), Customs Inspector, where they had met Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and R.K. Singh, Assistant Collector of Customs (A-102).
440. Confessional statement of Uttam Shantaram Potdar (A-30):
He has supported the case of the prosecution to the extent of the landing at Shrivardhan, and the payment of money to Mohmed Sultan Sayyed (A-90).
441. Deposition of Yeshwant Balu Lotale (PW-154):
He is the Customs Department official who was examined to verify the version of events narrated by the appellant (A-113), and after examining the office record, he has deposed that the appellant (A-113) was on leave only on 9.1.1993. He did not therefore, support the case of the appellant stating that he had been on leave from 9.1.1993 to 23.1.1993.
442. Nasir Abdul Kader Kewal @ Nasir Dakhkla (A-64) has also supported the case of the prosecution against the appellant.
443. Deposition of Usman (PW-2) :
He has deposed that it was on 2.12.1992 when the landing had taken place, that two persons from the Customs Department had come at the time of the said landing. Though he did not name the appellant (A-113), he has corroborated the confessional statements of the appellant (A-113), and of Jaywant Keshav Gurav (A-82), Customs Inspector.
444. Deposition of Bharat Hiramal Jain (PW-165):
It has been proved that he had received a sum of Rs. 2.25 lakhs by way of seven cheques between December 1992 and April 1993 from the appellant for booking a flat.
445. The depositions of Deepak Balkrishna Rauth (PW.149) and Chandrashekhar (PW.591) have proved the aforementioned amounts of cash, through pass book entries.
446. Deposition of Shivkumar Bhardwaj (PW-470):
He has stated that in January 1993, he had received information from the DRI Bombay to the extent that some ISI syndicates located in the Middle East and in Bombay, would try to smuggle contraband and arms into the districts of Bombay, Raigad and Bassin. After receipt of the said information, he had sent DO letter (Ext. 1536) to the Assistant Collector R.K. Singh (A-102) and others, and had also issued instructions to them over the telephone. This DO letter was proved by Pradeep Kumar (PW- 471). The said letter was received by R.K. Singh (A-102), and the same information was further passed on to all the Superintendents working under his jurisdiction.
447. The learned Special Judge after appreciating the entire evidence on record came to the conclusion that:
Thus considering material in the confession of A- 113 and aforesaid co-accused the same leads to the conclusion of A -113 also being involved in Shekadi 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 b. Since case of A-113 is more so over akin regarding his liability to Shekhadi landing with that of A-82 as both of them were at Shekhadi coast instead of again repeating said discussion it can be safely said that for same reason of which A-82 has been found guilty for commission of offence under Section 3(3) of TADA Act A-113 will be required to be held guilty. Needless to add that for same reason as stated in said discussion evidence pertaining to receipt of bribe amount and/or recovery of same during course of investigation and as tabulated about is not threadbare discussed. Thus on basis of all material surfaced at trial A-Il3 will be required to be held guilty for commission of offence u/s.3(3) of TADA Act. Needless to add that similarly as that of A-82 or even A-102 he can not be held guilty for offence of conspiracy for which he is charged with.
448. The evidence on record clearly shows the involvement of the appellant in landing. His role is the same as that of Jaywant Keshav Gurav (A-82) as he was responsible to prevent any smuggling, rather he had indulged in that and accepted the bribe permitting the smugglers to bring not only gold and silver but also arms, ammunition and explosives. The fact of investment of money taken by him as illegal gratification stood proved by the evidence of Bharat Hiramal Jain (PW-165) and Deepak Balkrishna Rauth (PW-149) and he could not furnish any satisfactory explanation for such investment.
448.1 The learned Designated Court has rightly reached the conclusion so far as his involvement in the offence punishable under Section 3(3) TADA is concerned.
448.2 In view of the above, we do not find any force in the appeal. The appeal lacks merit and is accordingly dismissed.