V. Gulam Hafiz Shaikh @ Baba (A-73): Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – Involvement of A-73 – Allegation of criminal conspiracy, of participation in landing and of storing arms and ammunition – Confessional statement of A-73 revealing his awareness about the contents of contrabands – Knew Tiger Memon (AA) – Worked for him in landing smuggled goods – On instruction of Tiger Memon, brought contraband and delivered it at instructed place – Corroboration by confessional statement of co-accused. Held conviction under Section 3(3) fully justified.
His involvement and participation in the landing operations of the contraband substances has been clearly established. His own confessional statement has revealed that he, being fully aware of the contents of the contraband, shifted the same from the truck to other vehicles and that in spite of the fact that he knew that the contraband contained arms, ammunition and RDX, he continued to be associated with the other co-accused. Therefore, he has aided and abetted terrorist activities, and we do not see any cogent reason to interfere with his order of conviction as recorded by the Designated Court. (Para 199)
187. The appellant (A-73) has been charged for the offence of criminal conspiracy and in addition thereto, for his participation in the landing at Shekhadi and the transportation of arms, ammunition, hand grenades and explosives like RDX to be used in the Bombay Blast on 12.3.1993, under Section 3(3) TADA and has further been charged under Section 6 TADA for the possession/storage of arms, ammunition and explosives in his garage, in contravention of the provisions of the Arms Act and the Rules thereunder, by transporting such unauthorized arms, ammunitions and explosives from Shekhadi to Bombay.
187.1 He has been found guilty of the charge under Section 3(3) TADA and has been awarded the sentence of 8 years alongwith a fine of Rs.10,000/-, and in default of payment of fine, further RI for two months. He has further been found guilty under Section 3(3) TADA for facilitating the landing and transportation of the aforementioned contraband, and has been awarded RI for 6 years alongwith a fine of Rs.5,000/- and in default of payment of fine, RI for one month. He has also been found guilty under Section 6 of TADA for possession and storage of the said weapons in his garage and for this he has been given a sentence of RI for 8 years, alongwith a fine of Rs.10,000/- and in default, further RI for two months. All the sentences have been directed to run concurrently.
188. Ms. Farhana Shah, learned counsel for the appellant has submitted that there are contradictions in the statements of the co-accused, and that therefore, they should not be relied upon. Moreover, the confessional statements of the co-accused were taken at odd hours, and there is no other corroborative evidence available against him. Therefore, the appeal deserves to be allowed.
189. Shri Mukul Gupta, learned senior counsel for the respondent has submitted that the appellant (A-73) was aware of the nature of the goods that he had kept in the false cavities of the vehicles. Moreover, his confession has been corroborated by various co- accused. Therefore, the appeal deserves to be dismissed.
190. We have heard learned counsel for the parties and perused the record.
191. Evidence against the appellant (A-73):
(a) Confessional Statement of Gulam Hafiz Shaikh @ Baba (A-73)
(b) Confessional statement of Dawood Taklya (A-14)
(c) Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)
(d) Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
(e) Confessional statement of Mohammed Rafiq (A-46)
(f) Deposition of Vijay Govind More (PW.137)
(g) Deposition of Vinod Lokhande (PW.183)
192. Confessional Statement of Gulam Hafiz Shaikh @ Baba (A-73)
The confession of the appellant (A-73) was recorded by Shri Vinod Balwant Lokhande, D.C., Airport Zone, Bombay on 15.5.1993 and 17.5.1993. In his confessional statement, the appellant (A-73) has disclosed that he has been working in the garage of his maternal uncle since his childhood. His uncle had handed over the garage to him 27 years ago. He had been running the said garage for repairing vehicles. He knew Tiger Memon (AA) and his associates Sunil, Shafi, Imtiyaz, Anwar, Rafique Madi, Raju Marwari, Riyaz, Majeed etc. They would do the work of smuggling silver. The same was unloaded at the sea-shore near the village Mhasla. The goods were to be brought by trucks to the Tower, and the contraband were then to be unloaded and concealed in the cavities of tempos and jeeps there. The work of the appellant (A-73) was to take the tempo or the jeep full of smuggled silver to its destination, and after this, he was paid a sum of Rs.2,000 to 3,000 for each transportation/landing. In the last week of January, 1993 he had reached the Welcome Hotel, Panvel alongwith the jeep at 8.30 p.m. upon receiving instructions to this effect. Four jeeps and a Maruti car were already parked there. Tiger and Sunil were also sitting in the jeep. The goods were smuggled in the next day with the help of a large number of persons including Tiger, Shafi, Anwar, Imtiyaz, Gani and Rafique etc. The truck was then unloaded, and all goods were kept in the tempos and jeeps. There were several green coloured boxes containing black soap, and cartridges. The appellant (A-73) had parked the tempo full of smuggled goods outside his garage in Islampura. The appellant (A-73) had then gone to Persian Darbar Hotel upon being called by Tiger Memon. The appellant (A-73) was asked by Tiger Memon to take the tempo outside his garage to Sankhvi street, opposite Bata Company, near Lokhandi gate near the place where Chiliyaki Hotel was situated. He was informed that there would be a boy at the gate who would give him a signal with a white handkerchief upon seeing the said tempo. The appellant (A-73) was told to take the vehicle as per his direction, and unload the goods there. The next day, the appellant (A-73) had taken the tempo to Sankhvi Street to the aforesaid address, and as per the direction, the goods were unloaded there. He had been paid Rs.1000 for this work. The appellant (A-73) has confessed that he had participated in landings of silver, and that it was only on one occasion that weapons had been smuggled.
193. Abdul Gani Ismail Turk (A-11), Dawood @ Dawood Taklya (A-14), Imtiyaz Yunusmiya Ghavte (A-15), and Mohd. Rafiq (A-46) have supported the case of the prosecution by stating that the appellant (A-73) participated in the landing and transportation of the smuggled goods including arms, ammunition etc.
194. Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
In his confessional statement, he has disclosed details of the incident dated 28th /29th February, 1993. He has stated that at 1.30 – 2.00 a.m., the smuggled goods had been were brought in a lorry to the tower, and that Tiger Memon (AA), Yakub (AA), Javed (AA), Dawood Taklya (A-14) and their men and others had also come there. Shafi, Anwar and driver Baba (appellant A-73) had opened the boxes and the same contained hand bombs, wires, rifles, pistols and bullets. The appellant (A-73) and others had put all the weapons and explosives into the cavities of jeeps and tempos. The goods had also contained a chemical, black soap.
195. Deposition of Vijay Govind More (PW.137)
He was labourer at Wangni Tower and he had clearly deposed that appellant (A-73) was involved in the loading and unloading of smuggled goods at Wangni Tower. He identified the appellant (A-73) in court.
196. Deposition of Vinod Lokhande (PW.183)
He has recorded the confessional statement of the appellant and he deposed that it was voluntary and had been made strictly in accordance with law and the confessional statement was forwarded to the Chief Judicial Magistrate, Alibagh.
197. In view of the above, we have to consider whether in light of the evidence on record, the conviction of the appellants can be sustained.
198. All the material on evidence was collected and after appraisal, the Special Judge came to the conclusion that A-73 had in fact been involved in the landing operations of the contraband substances. The evidence against appellant (A-73) includes his own confession wherein he has confessed to being fully aware of the fact that the contraband were shifted from trucks to other vehicles, which contained arms, ammunition and RDX. The Designated Court came to the conclusion that his act of driving the vehicle containing such material could not be for any purpose other than to aid and abet terrorist activities.
198.1 However, the Designated Court has stated that the said acts had been committed by him in the early phases of the conspiracy, even prior to Tiger Memon (AA) deciding the target of the Blast. The court also went on to say that after this particular incident A- 73 had not been involved in any landing job. Therefore, he (A-73) cannot be held guilty for the larger conspiracy, for which the charge firstly, was framed against him.
199. So far as appellant (A-73) is concerned, like other appellants, his involvement and participation in the landing operations of the contraband substances has been clearly established. His own confessional statement has revealed that he, being fully aware of the contents of the contraband, shifted the same from the truck to other vehicles and that in spite of the fact that he knew that the contraband contained arms, ammunition and RDX, he continued to be associated with the other co-accused. Therefore, he has aided and abetted terrorist activities, and we do not see any cogent reason to interfere with his order of conviction as recorded by the Designated Court.
200. In view of the above, we do not find any substance in these appeals and the same stand dismissed.
201. In case, if the appellants are on bail, their bail bonds are cancelled and they must surrender within four weeks from today, failing which the Learned Designated Court under TADA shall take them into custody, and send them to jail to serve out the remaining part of their sentences, as have been awarded by the learned Designated Court under TADA.