The State of Maharashtra Vs. Sayyed Ismail Sayyed Ali Kadri
Terrorist and Disruptive Activities (Prevention) Act, 1987
Appeal against acquittal – Bombay blast case – Charge of conspiracy as also of abetting and knowingly facilitating landing of arms, ammunition and explosives – Also concealing arms in house and disposing same in mango grove of one ‘A’ – Allegation that involvement of respondent stood proved by confessions of A-74 and A-81 who stated that he along with his sons and others participated in shifting of contraband from his house to mango grove of ‘A’ – Also contended that A74 even led to recovery of contraband from mango grove – Acquittal by Special judge on ground of contradiction in confessions regarding sequence of events – Observation by judge that a passing remark in the confession about respondent’s presence did not prove his involvement – No independent corroboration to confessional statements. Held, there is nothing to show respondent’s involvement. His mere presence in his house, where contraband was hidden, did not establish his guilt.
There is no evidence on record to show that the respondent had been involved in the crime in any manner. If his sons had indulged in the offence, his mere presence in his house, where the contraband had been hidden, would not make the respondent responsible. (Para 98)
88. Facts and circumstances giving rise to this appeal are that : In addition to the main charge of conspiracy, the respondent was also charged for having abetted and knowingly and intentionally facilitating the commission of terrorist acts in effecting the landing of contraband goods such as arms, ammunition and explosives at Dighi Jetty on 9.1.1993. He was further charged for concealing contraband at his house and also in the mango grove of Abdul Razak Subedar and further for his involvement in disposal of the said articles at Kandal Gaon Creek.
89. The Special Judge after conclusion of the trial, acquitted the respondent of all the charges.
Hence, this appeal.
90. Mr. Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent being father of Shabir Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) (dead after being convicted by the Special Judge) was a party to conspiracy and of the plan of committing terrorist acts and was fully aware as the contraband had been concealed in his house with his consent and connivance. He had also participated when the contraband arms and ammunition were shifted from his house to mango grove of Abdul Razak Subedar and concealed there by digging the earth. He was involved in disposal of the said articles in the creek. The Special Judge has wrongly given the benefit of doubt to him. Thus, the appeal deserves to be allowed.
91. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that even if his sons Shabir Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) had been involved in the offence, there is nothing on record on the basis of which it could be held that the respondent had committed any offence. More so, he had been in jail for 2 years during the trial. He is 70 years of age, old and bed ridden person. The incident occurred 20 years ago, so it is not a case warranting interference against the order of acquittal.
92. We have considered the rival submissions made by learned counsel for the parties and perused the record.
92.1. Respondent accused (A-105) did not make any confession.
Confession of Faki Ali Faki Ahmed Subedar (A-74) :
93. The confessional statement of Faki Ali Faki Ahmed Subedar (A- 74) revealed that Shabir had approached him in the 2nd/3rd week of March, 1993 for help as Feroz Khan had come from Bombay and told him that after the riots the situation was very bad in Bombay and some boxes containing fire arms and bags containing cartridges were to be dumped in the creek. He asked for help taking the said articles in the boat. The accused (A-74) agreed. Shabir, his brother Jamir (A-133, since dead), Abdulla Surti and Gambas (A-81) took out three wooden boxes and 6 green coloured bags kept under the straw and loaded them in a boat lying near the shore of the creek and went in the water towards Kandalwada creek. The next day, Shabir came and told him that certain arms, ammunition and cartridges were to be hidden in the mango grove and he wanted the said accused to help him. The accused went along with him. At that time, Gambas, Abdulla Surti, Jamir and Jamirs father were there in his house. After reaching there, they took out 13 coloured bags containing cartridges and guns wrapped in plastic paper and kept there in three bundles from underneath the straw. These articles were put in the pit prepared earlier in the mango orchard of Abdulla Razak Subedar who was living in Nairobi at the time and the pit was covered with soil.
93.1 After about a month, he was interrogated by the police, wherein he disclosed about the said 13 green coloured bags containing cartridges and three bundles containing guns had been hidden in the mango orchard of Abdul Razak Subedar. The hidden material was recovered from the said mango grove and it contained 4 country made guns, 12 foreign made guns, 36 magazines and 26 cartridges.
Confession of Jananrdan Pandurang Gambas (A-81):
94. He disclosed that he was not able to maintain a good business so some smugglers persuaded him to purchase one new boat and indulge in transportation of smuggled goods particularly silver and gold through the sea. Shabir used to give him Rs.1000/- for such activities. On 2.12.1993, he was asked by Shabir Kadri to come to the Jetty at around 9.00 p.m., for unloading silver and gold. So he participated in the said landing and brought the goods to the sea shore with the help of Mohd. Chacha (A-136) and Uttam Potdar (A-30) and for that many persons had helped and Uttam Potdar (A-30) gave Rs. 5,000/- to each and every person for their assistance. After the Bombay Blast, one day Jamir (A- 133, since dead) and his brother Shabir called him (A-81) at Agarwada and he was told that goods unloaded on the last occasion contained guns and explosive substances i.e. gola barood and had to be hidden beneath the ground and he was directed to remain present in the mango grove after dinner and dig the pit for hiding the contraband. Accordingly, a pit was prepared and three boxes each containing 4 rifles wrapped in gunny bags and 26 boxes of thermal packing were buried in the ground. He was paid Rs.1,000/- for that job. Shabir threatened him not to disclose the fact to anyone. When these articles were buried, Shabir Jamir, Faki Ali Faki Chacha, Abdulla Surti, Sayyed Ismail Kadri, father of Shabir were also present.
95. The recovery of the said material had been made at the instance of Faki Ali Faki Chacha (A-74) from the mango grove.
96. After appreciating the aforesaid evidence the Special Judge came to the conclusion that the respondent (A-105) had not made any confession. So far as the confession of Faki Ali Faki Chacha (A-74) is concerned, it contained reference regarding the presence of one father, but the same does not specifically reveal A-105 being person while the goods were being concealed after taking them from the house of the respondent-accused to the mango grove. The same conclusion was drawn regarding the confession of Jananrdan Pandurang Gambas (A-81). He (A- 81) made a passing remark revealing the presence of respondent A-105 at the relevant time. Still the same specifically failed to depict any act committed by him in relation with the contraband goods. More so, there seems to be some contradiction and variance in the sequence of events as given in the aforesaid confessions. Thus, it was difficult to accept that the said material in confession of the co-accused can be accepted without there being any independent corroboration, though the corroboration was required only on material points and not on each and every point. The confessional statement of the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent enough for establishing involvement of the respondent (A-105) in commission of the acts amounting to a criminal offence required to be strictly proved.
97. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
98. In the instant case, there is no evidence on record to show that the respondent had been involved in the crime in any manner. If his sons had indulged in the offence, his mere presence in his house, where the contraband had been hidden, would not make the respondent responsible.
98.1 We do not find any cogent reason to interfere with the impugned judgment and order. The appeal lacks merit and is accordingly dismissed.