The State of Maharashtra through CBI Vs. Ayub Ibrahim Patel
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6 – Arms Act, 1959, Sections 3 and 7 read with Section 25(1-A)(1-B)(a) – Bombay Blast case – Conviction under TADA and Arms Act – Acquittal of the charge of conspiracy – Allegation against A72 of unuathorised possession of 20 smuggled hand-grenades – Recovery on disclosure statement – As per confessional statement of A41 he had given 20 hand grenades to one A of Oshiwara – Nothing to show that said ‘A’ was A72 – After arrest of A41, A41’s father obtained the contraband through one ‘H’ allegedly from A72 and produced it before police. Held, A72 was entitled to benefit of doubt. No interference needed.
Hence, this appeal.
206. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been found to be in the unauthorized possession of 20 hand grenades, which were part of the consignment of arms that had been smuggled into India by the terrorists. The said hand grenades were recovered from his house upon his disclosure statement. Therefore, he ought to have been held guilty for the charge of conspiracy.
207. On the contrary, Shri S.P Sinha, learned counsel appearing for the respondent has submitted that the respondent has not preferred any appeal against his conviction on any other charges. He has already served out the sentence that was awarded to him, and has also paid the fine. After appreciating the evidence on record, the Special Judge has acquitted the respondent of the charge of conspiracy. The facts of the case do not warrant any further interference. Thus, the appeal is liable to be dismissed.
208. We have considered the rival submissions made by the learned counsel for the parties and perused the evidence on record.
209. Confessional statement of Baba alias Ibrahim Mussa Chauhan (A- 41) revealed that he was well acquainted with Abu Salem (AA), and Anis Ibrahim Kaskar, brother of Dawood Ibrahim. On 15th January 1993, Salem telephoned him (A-41) to find a garage equipped with closed shutters. In this regard he (A-41) spoke to Salem and Anis Ibrahim Kaskar several times. Salem asked him (A-41) to keep 2/3 AK-56 Rifles for a few days and also told him that they should be kept by him (A- 41) at his house. On 16th January, 1993 Salem came to his house and then they went to the house of Sanjay Dutt (A-117) and delivered some of the contraband arms to him. A bag containing 20 grenades was kept by him (A-41) in the car owned by Sameer (A-53) and a bag containing 3 Rifles, 16 Magazines, 25 hand grenades and 750 bullets was taken by him (A-41). The said goods were not taken back by Salem as promised, so he (A-41) contacted Salem to take it back. A-41 received a message to give 2 AK-56 Rifles, 6 Magazines to Salem Kurla. After some time Salem met A-41 and the latter informed Salem that remaining goods were kept with a man named Ayub residing at Oshivara. At that time Salem had 30 loaded magazines wrapped in a plastic bag and he handed over the bag over to A-41 and told him (A-41) that he had spoken to Ayub via telephone and asked him to keep the goods with A-41. Accordingly, on the same day Ayub came with a bag containing 1 AK -56 Rifle, which along with magazines and a bag was kept at one place. After 2/3 days, Salem came to A-41 and handed over a vehicle asking him to leave it at a place near Ram and Shyam Talkies at Jogeshwari and hand over the vehicle to Ayub and there were further instructions for Ayub to keep all the goods except hand grenades in the car and to leave the car near the office of Salem. A-41 handed over the car to Ayub and conveyed the message. After Bombay blast, Salem Kurla was arrested and on his information police arrested A- 41 on or about 28th of March 1993. After his arrest, the father of A-41 obtained the bag which he had kept with Ayub through Haji Ismail and produced it before the police.
210. Recovery panchnamas Exts.154-155 make it clear that Sub- Inspector Nerlekar had interrogated the accused Ayub Ibrahim Patel (A- 72) and he expressed his desire to make the disclosure statement. At that time, two Panchas were called through the Constable and in their presence, Ayub Ibrahim Patel (A-72) made the statement that he had concealed the hand-grenades, the recovery of which he would get effected. The recovery was made and proved by Nerlekar (PW.605) and the panch witness (PW.44). According to the said witnesses, after recording the disclosure statement, i.e., the panchnama, the accused (A-72) led the Panchas and police team to room no.202 on the second floor of Noora Building in Dalwai compound, opposite Ajit Glass Factory Oshiwara (West). The appellant (A-72) rang the door bell of the said room and the door was opened by one lady and she was introduced by A-72 as his wife named Smt. Kausar. Thereafter, Ayub Ibrahim Patel (A-72) led the panchas and police in the said room and took out a plastic bag from a steel cupboard near the eastern wall of the house. The said bag contained 20 hand-grenades. The same was handed over to the Sub-Inspector Nerlekar (PW 605) who drew a panchnama and left for Worli Police Station with the hand-grenades.
211. The Special Judge after appreciating the entire evidence summarised the whole case against Ayub Ibrahim Patel (A-72) as under:
However, after carefully considering the matters from the said confession reveals that A-41 had handed over the bag containing 25 hand grenades to Iqbal Tunda and had informed about the same to Salem and Iqbal Tunda had informed him of the same being kept with Ayub residing at Oshiwara still there appears full substance in the criticism advanced by the ld. Defence counsel that hardly there exists any material on record to come to the conclusion that the person by name Ayub from Oshiwara referred in the said confession is A-72. There is also further substance in the defence criticism in such an eventuality 25 hand grenades could have been found with A- 72..Thus considering the aforesaid evidence of recovery and particularly statement made by A-72 showing his authorship in keeping the relevant hand grenades and apart from same A-72 at the trial having not given any other explanation about the reason because of which such hand grenades were in his house or his knowledge about the same all the said factors establishes himself being in possession of such contraband material attracting the provisions of Sec. 5 of TADA. Now considering the statutory presumption arising out of the relevant facets established and the same having remained unrebutted at the trial will safely lead to only conclusion of A-72 of having possessed the same for the purpose of terrorist act or terrorist activity. The same is apparent in view of the law regarding the same as explained by the Honble Constitutional Bench of the Apex Court in the decision in the case of Sanjay Dutt v. State of Maharashtra reported in [JT 1995 (7) SC 378]. In view of the same A- 72 will be required to be held guilty for commission of offence u/s 5 of TADA.
Though the aforesaid evidence clearly establishes of A-72 to be in possession of such contraband material within notified area still there being no evidence to come to the conclusion that the same were part & parcel of the consignment smuggled into country by co-conspirators for commission of terrorist acts for which the charge at head 1stIy is framed, A-72 cannot be held guilty for the said conspiracy. However, possessing huge quantity of hand grenades considered with other evidence not denoting involvement of A-72 in any terrorist activity also leads to the conclusion of the same being either kept with him for storage purpose and/or for assisting some other co- conspirators for commission of terrorist acts. Needless to add that the same is also suggestive of A-72 having made the preparation for commission of terrorist acts. In view of the same A-72 will be also required to be held guilty for commission of offence u/s. 3 (3) of TADA. Similarly considering the quantity of hand grenades found in possession of A-72 the same also denotes of himself having committed offence u/s. 6 of TADA and so also the offence punishable u/s.3 & 7 r/w Sec. 25(1-A) (I- B)(a) of Arms Act.
In light of discussion made hereinabove Point Nos. 170 to 173 will be required to be answered in consonance with the conclusion arrived during the said discussion i.e. A-72 having committed all the said offences for which the said points are framed but for the reasons stated hereinabove. However, hardly there being any evidence of A-72 of having committed the said offence in pursuance of conspiracy for which he has been charged due to nexus of material found with him being not established with the material smuggled for commission of Serial bomb Blast and there being no other evidence he will be required o be absolved from the offence of conspiracy for which he is charged with.
212. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
213. From the above discussion it is evident that Baba Chauhan (A-41) had given 20 hand grenades to one Ayub resident of Oshiwara. However, he has also disclosed that after his arrest on 28th March, 1993, the said contraband had been produced before the police by his father through Haji Ismail. In view of the above, the conclusion reached by the learned Designated Court that there is nothing on the record to establish that Ayub of Oshiwara could be Ayub (A-72), does not require interference. In such a fact-situation, the respondent (A-72) is entitled to benefit of doubt, so far as the charge of conspiracy is concerned. The appeal lacks merit, and is accordingly, dismissed.