Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136) Vs. The State of Maharashtra, through Superintendent of Po
EmailAppeal: Criminal Appeal No. 401 of 2008
With
The State of Maharashtra, through CBI v. Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
Criminal Appeal No. 1023 of 2012
With
The State of Maharashtra, through CBI v. Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
Criminal Appeal No. 1023 of 2012
Petitioner: Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
Respondent: The State of Maharashtra, through Superintendent of Police, CBI-STF, Mumbai
Apeal: Criminal Appeal No. 401 of 2008
With
The State of Maharashtra, through CBI v. Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
Criminal Appeal No. 1023 of 2012
With
The State of Maharashtra, through CBI v. Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
Criminal Appeal No. 1023 of 2012
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Mohd Kasam (A136) Charges of conspiracy, murder etc. – Evidence – Appreciation Confession by accused – Accused, a motor mechanic – Use of 3 trucks, one tempo, one Maruti Car, one Maruti Van, and one gypsy for smuggling False cavities made in these trucks and tempo He was present at the meeting with custom officials Informed by Dossa about sending of arms He was present at the time of landing on 09.01.1993 Signaled the ship to reach Dighi Jetty – Silver bars loaded in truck with wooden boxes and tin boxes Followed truck taking those articles – When intercepted by police, other co-accused arrived and decided to pay police officials, who kept 5-6 silver bars Arms transported to Gujarat After blast, fled to Nepal Plea that confession was obtained Due procedure and safe guard followed Later confession retracted However, produced before magistrate, a day after his arrest Nothing stated at that time Conversely, he admitted the contents His statement corroborated by confessions of A134, A30, A82 and A81 – Though recorded prior to Amendment in 1995, statements already held admissible Further corroboration by various PWs Acquittal of accused for charge of conspiracy and murder etc. – Appeal by State against acquittal. Held that trial court has rightly convicted this accused under Section 3(3) and for conspiracy and has rightly acquitted for other offences. Sentence accordingly affirmed. State appeal dismissed.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Mohd Kasam (A136) Charges of conspiracy, murder etc. – Evidence – Appreciation Confession by accused – Accused, a motor mechanic – Use of 3 trucks, one tempo, one Maruti Car, one Maruti Van, and one gypsy for smuggling False cavities made in these trucks and tempo He was present at the meeting with custom officials Informed by Dossa about sending of arms He was present at the time of landing on 09.01.1993 Signaled the ship to reach Dighi Jetty – Silver bars loaded in truck with wooden boxes and tin boxes Followed truck taking those articles – When intercepted by police, other co-accused arrived and decided to pay police officials, who kept 5-6 silver bars Arms transported to Gujarat After blast, fled to Nepal Plea that confession was obtained Due procedure and safe guard followed Later confession retracted However, produced before magistrate, a day after his arrest Nothing stated at that time Conversely, he admitted the contents His statement corroborated by confessions of A134, A30, A82 and A81 – Though recorded prior to Amendment in 1995, statements already held admissible Further corroboration by various PWs Acquittal of accused for charge of conspiracy and murder etc. – Appeal by State against acquittal. Held that trial court has rightly convicted this accused under Section 3(3) and for conspiracy and has rightly acquitted for other offences. Sentence accordingly affirmed. State appeal dismissed.
Held:
Upon perusal of the above confession of the appellant, the following facts emerge
(i) The appellant was a close confidant of Mohd. Dosa gang;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meetings and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case. (Para 195)
The appellant (A-136) was produced before the CMM, Bombay on 10.11.1999 (one day after recording his confession) he did not make any such complaint to the CMM and the said fact is clear from the order dated 10.11.1999 which records that the contents of the confession of the appellant (A-136) were read out to him and he admitted all the facts. (Para 196)
The appellant was a close confidant of Dossa brothers and he was given the important task to ensure safe landing and its transportation to their respective destinations and the appellant was also present at the time when Mohd. Dossa told A-134 and other co-accused that a large quantity of arms and ammunitions had left Dubai and directed A-134 and Feroz (AA) to go to Dighi in Mhasla and inform the customs officers about the landing and that the appellant would be making other arrangements in this regard. (Para 197.2)
A-82 does not specifically name the appellant but it corroborates the fact that police officers of Shrivardhan PS had intercepted the truck of Mohd. Dossa Gang and his 4/5 men negotiated with the police. (Para 197.5 )
The confession of A-81, a fisherman, who participated in the landing at Dighi, corroborates with the fact that the appellant was talking on wireless after which a trawler came within 10 minutes towards the Jetty. They unloaded silver bricks and 30 bundles wrapped in gunny clothes around the box and 30 military coloured bags. (Para 197.6)
Upon perusal of the entire evidence as placed by the prosecution the following facts emerge:-
(i) The appellant was a close confidant of Mohd. Dossa gang and was close to Dossa brother and did everything to win over their confidence;
(ii) The appellant was aware of the contents even prior to the landing of the goods at Dighi Jetty which fact is clearly discernible from his own confession and confession of A-134;
(iii) The appellant was given the important task of safe landing and its transportation to respective destinations;
(iv) The appellant was coordinating with the launch which fact is duly corroborated even by the depositions;
(v) The appellant negotiated with police officer for release of the goods. (Para 200)
Thus, in view of the above, we reach inescapable conclusion that the appellant has rightly been convicted and sentenced by the Designated Court. The appeal is liable to be dismissed. (Para 200.1)
JUDGEMENT:
188. Mr. Chander Uday Singh, learned senior counsel appeared for the appellant (A-136) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
Criminal Appeal No. 401 of 2008
189. The instant appeal is directed against the final judgment and order of conviction and sentence dated 17.10.2006 and 23.05.2007 respectively, whereby the appellant (A-136) has been convicted and sentenced to rigorous imprisonment for 10 (ten) years by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
190. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
190.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy and during the period January, 1993 to March, 1993, abetted and knowingly and intentionally facilitated acts preparatory to terrorist acts
(a) By attending the meeting at Hotel Persian Darbar, Panvel on 06.01.1993 along with co-accused in which co-accused customs officers allowed Mohd. Dossa (AA) and his associates to carry on smuggling activities in their jurisdiction;
(b) He participated along with landing agent Uttam Poddar (A-30) participated in landing of arms, ammunitions and hand-grenades at Dighi on 09.01.1993 and also participated in the transportation of the said arms, ammunitions and hand-grenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment; and
(c) He participated in transportation of the said contraband from Dighi when it was intercepted at Gondghar Phata by police officers of Shrivardhan Police Station and on medication the said truck was allowed to proceed for illegal gratification, thereby, he committed an offence under Section 3(3) of TADA.
At head Thirdly: The appellant with intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunition, their transportation and thereby committed an offence punishable under Section 6 of TADA.
191. The charges mentioned above were proved against the appellant (A-136) except the charge mentioned at head firstly. The Designated Judge found the appellant guilty on the aforesaid charges which are enumerated herein below:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and sentenced to RI for 10 years alongwith a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
ii) The appellant has also been convicted under Section 6 of TADA and has been sentenced to RI for 10 years along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
Evidence
192. The evidence against the appellant (A-136) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Mohd. Kasam Lajpuria @ Mohd. Kalia @ Mechanic Chacha (A-136)
193. The involvement of A-136 in the conspiracy is evident from his own confession under Section 15 of TADA recorded on 09.11.1999 (15:40 hrs.) and 10.11.1999 (09:00 hrs.) by Shri O.P. Chhatwal (PW-684), the then SP, CBI- STF, New Delhi. We have gone through his entire confession. His confession reveals as under:-
(i) The appellant was a Motor mechanic and was previously jailed under COFEPOSA for 1 year. He met Mohd. Dossa (AA) in jail and he started working with him after release.
(ii) He was called as Mechanic Chacha.
(iii) Uttam Poddar (A-30) was a landing agent of Mohd. Dossa in Raigad area.
(iv) 3 trucks, one numbered as 1051, (which was identified by A-134 as the truck used for carrying weapons unloaded at Dighi Jetty), 2 tempos, one Maruti car, one Maruti van and one Maruti gypsy were used for smuggling. False cavities were also made in trucks and tempos to hide the smuggled goods.
These vehicles were brought in false names.
(v) 6-8 months prior to 1993 bomb blasts, a meeting was held between Mohd. Dossa (AA) and Custom Collector Mr. Thapa (A-112) at President Hotel. In the said meeting, the appellant was also present along with other co-accused persons. A-112 told Mohd. Dossa that he can carry out smuggling activities but he must also give some cases of seized goods of smuggling.
(vi) Mohd. Dossa told the appellant and others that his brother Mustafa Dossa will send some arms from Dubai which should be collected at the port.
(vii) On 06.01.1993, a meeting took place between Mohd. Dossa and custom officials at Hotel Persian Durbar, Panvel. The appellant also traveled to Panvel to attend the said meeting. In the meeting, it was decided to pay Rs. 9-10 lacs to Customs officials for single landing.
(viii) A landing took place on 09.01.1993.
(ix) The appellant along with Afsal Gadbad left for Mhasla at 3 p.m. on 09.01.1993.
(x) Thereafter, they met A-30 and all of them then reached Dighi Jetty at 9 Oclock .
(xi) The appellant and others received signal from the ship/launch which came from Dubai on a walkie-talkie. The appellant asked the launch to reach Dighi Jetty.
(xii) About 265 silver bars were loaded in the trucks from the ship. When silver was being uploaded, the captain of ship asked to unload other things too, viz., (i) 15-20 wooden boxes, and (ii) 15-20 tin boxes.
(xiii) A-134 spoke to Mustafa Dossa over telephone about the contents of the boxes and, thereafter, told A-136 to unload the samaan in the truck. Samaan is the lingo for arms in gangsters language.
(xiv) He was travelling in the car and the truck and the tempo loaded with arms were following the car. After taking note of the fact that the truck and the tempo were not following their car, they came back and saw that truck and the tempo had been intercepted by a police party.
(xv) An officer, by name Patil (A-116), stopped the two vehicles and said that he was not paid anything in spite of landings. Meanwhile, A-30 along with A-82 came there and spoke to Patil (A-116) and it was decided that Rs. 8 lakhs would be given to the police.
(xvi) Patil (A-116) kept 5 silver bars as security for a bribe of Rs. 8 lacs to let the trucks pass through.
(xvii) The truck with arms moved towards village Agarwada where Shabbir Qadri (AA) resided. It is further seen that from Agarwada village, arms were loaded into cavities of another truck and sent to Gujarat. Some arms which could not be fitted into the cavities of trucks left with Shabbir Qadri at his residence.
(xix) He got scared that the arms deposited by Ahmed Aulia in his village might be caught leading perhaps to his arrest also.
(xx) He moved to Nepal after 2-3 months of the blasts to evade arrest. In Nepal, he met Mohd. Dossa (AA), Salim Kutta (A-134), and Feroz (AA), amongst others. He was aware that police was in search of him and that the court has also issued a warrant for his arrest.
(xxi) Some of the rifles unloaded at Dighi Jetty on 09.01.1993 were with Ahmed Aulia who was not returning them. He told his wife about this and she passed this information to Crime Branch.
(xxii) The arms which landed at Dighi were brought from Pakistan near Karachi. One boat went to Porbandar and some arms landed there also.
194. As against this, counsel for the appellant submitted that the appellant came to be arrested on 04.11.1999, i.e., after the evidence of most of the witnesses was over. Shri O.P. Chhatwal (PW-684), the then SP, CBI-STF, New Delhi – the officer who recorded his confession, was present at the time of his arrest. He further pointed out that in spite of his advocates information that A-136 does not intend to give confession, a confession was obtained from him on 09.11.1999. In the light of the above objections, we have carefully verified his entire statement, procedure followed, voluntariness etc., of the confession and we are satisfied that there is no substance in the above objections. In view of the objection that the Supervising Officer (PW-684 herein) cannot be permitted to record confession of an accused, this Court has rejected this objection vide S.N. Dube v. N.B. Bhoir & Ors. [(2000) 2 SCC 254], Lal Singh v. State of Gujarat & Anr. [JT 2001 (3) SC 410 : (2001) 3 SCC 221] and Mohd. Amin v. CBI [JT 2008 (12) SC 49 : (2008) 15 SCC 49].
195. Upon perusal of the above confession of the appellant, the following facts emerge
(i) The appellant was a close confidant of Mohd. Dosa gang;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meetings and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case.
196. It has been contended on behalf of the appellant (A-136) that his confession should not be relied upon as he has retracted his confession and his signatures were obtained under coercion. It is relevant to point out that the appellant (A-136) was produced before the CMM, Bombay on 10.11.1999 (one day after recording his confession) he did not make any such complaint to the CMM and the said fact is clear from the order dated 10.11.1999 which records that the contents of the confession of the appellant (A-136) were read out to him and he admitted all the facts. Further, the confession of the appellant (A-136) is corroborated in material respects with the confessions of A-134, A-30 and A-82 insofar as Dighi landing and interception of trucks by police is concerned and was, thus, truthful and voluntary when made.
Confessional Statements of co-accused:
197. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of other co-accused persons which are summarized as under:
Confessional Statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)
197.1 Confessional statement of A-134 under Section 15 of TADA has been recorded on 18.08.1995 (16:00 hrs.) and 19.08.1995 (16:00 hrs.) by Shri Satyakant Rohinikant Saikia (PW-481), the then DIG-CID Crime and Railways, Gujarat State, Ahmedabad. A brief summary of the confession of A-134 with respect to the appellant is summarized herein under:
(i) A-134 was also the member of Mustafa Majnu Gang and later became body guard of Mohd. Dossa.
(ii) A-136, A-134 and Feroz Abdul Rashid were joint partners of 5% share in smuggling activities. A-136 was an active member of Mohd. Dossa gang and was involved in smuggling activities.
(iii) Tiger Memon used to work with Mohd. Dossa.
(iv) A-134 along with A-136 and other co-accused attended a meeting with custom officers at Hotel Persian Darbar in the first week of January, 1993, wherein rate for each landing was fixed at Rs 7 to 8 lakhs per landing. The meeting went on for 3/4 hrs.
(v) In the presence of A-136, Mohd. Dossa informed after talking with Mustafa Majnu over phone that a large quantity of arms and ammunitions had left Dubai. He directed A-134 and Feroz (AA) to go to Dighi in Mhasla and inform the Custom Officers about the said landing and that the appellant would be making other arrangements in this regard.
(vi) In the night of 09.01.1993, A-136 along with other accused persons had gathered at Dighi Jetty for the landing.
(vii) In the night, at about 11 p.m., A-136 was busy on wireless and was trying to establish contact with the launch coming from Dubai. He left in a small boat and after some time returned with the launch.
(viii) After loading all the boxes, bags and silver ingots they all left Dighi Jetty and on their way, the vehicles were intercepted by the police. The appellant, A-134, A-30, A-82 negotiated with the police and it was decided to release the trucks after keeping silver ingots as security in lieu of a bribe of Rs. 10 lacs.
(ix) He saw the boxes contained AK-56 rifles, empty magazines, hand grenades with pins in separate boxes, and ammunition for AK-56 rifles in tin boxes.
(x) A-136 asked Abdul Qayyum to proceed to Gujarat and to contact Mustafa Dossa @ Mustafa Majnu (brother of Mohd. Dosa).
197.2 We are satisfied that the confession of A-134 fully corroborates in material aspects with the confession of the appellant. It is also clear that the appellant was a close confidant of Dossa brothers and he was given the important task to ensure safe landing and its transportation to their respective destinations and the appellant was also present at the time when Mohd. Dossa told A-134 and other co-accused that a large quantity of arms and ammunitions had left Dubai and directed A-134 and Feroz (AA) to go to Dighi in Mhasla and inform the customs officers about the landing and that the appellant would be making other arrangements in this regard.
Confessional Statement of Uttam Shantaram Poddar (A-30)
197.3 Confessional statement of A-30 under Section 15 of TADA has been recorded on 12.07.1993 (17:20 hrs.) and 15.07.1993 (17:00 hrs.) by Meera Borvankar, the then Supdt. of Police, CID, Pune. A summary of the confession of A-30 implicating the appellant is as under:-
(i) He was a landing agent and worked for Mohd. Dossa. He described A-136 as the main person in the gang and that A-136 had asked A-30 to work for Mohd. Dossa.
(ii) A-136 came in his white Maruti car to Dighi on 09.01.1993.
(iii) A-136 was interacting with the ship carrying arms through a walkie talkie.
(iv) After landing at Dighi on 09.01.1993, the vehicles were stopped at Gondghar Phata by the police where V.K. Patil (A-116) was present. A-136 made an offer of Rs. 10 lacs to A-116. 175 silver bricks were there in local truck and 100 bricks in another truck. The police asked what was in the boxes to which A-136 replied that the boxes contained watches. Since there was no cash, A-136 gave silver bricks in lieu of cash to police and left with the trucks.
197.4 Upon perusal of the confession of A-30 it is clear that the appellant was a close confidant of Mohd. Dossa gang and he negotiated the release of trucks with the police and further misled them about the contents of the same.
Confessional Statement of Jaywant Keshav Gurav (A-82)
197.5 Confession statement of Jaywant Keshav Gurav (A-82) under Section 15 of TADA has been recorded on 04.05.1993 and 06.05.1993 (10:00 Hrs) by Shri Tikaram Shrawan Bhal (PW-191), the then Superintendent of Police, Alibaug, Raigad. A-82 does not specifically name the appellant but it corroborates the fact that police officers of Shrivardhan PS had intercepted the truck of Mohd. Dossa Gang and his 4/5 men negotiated with the police.
Confessional Statement of Janardhan Pandurang Gambas (A-81)
197.6 Confessional statement of A-81 under Section 15 of TADA has been recorded on 20.05.1993 (17:30 hrs.) and 21.05.1993 (17:15 hrs.) by Shri T.S. Bhai, the then Supdt. of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi, corroborates with the fact that the appellant was talking on wireless after which a trawler came within 10 minutes towards the Jetty. They unloaded silver bricks and 30 bundles wrapped in gunny clothes around the box and 30 military coloured bags.
198. It is contended by the counsel for the appellant that the confession statements of A-30, A-81 and A-82 cannot be read in evidence against A-136 as they were recorded prior to amendment of TADA i.e. before 22.05.1995. Since we have already dealt with the similar objection in the earlier part of our order, there is no need to traverse the same once again.
Deposition of Prosecution Witnesses:
199. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. The relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:
Deposition of Dinesh Gopal Nakti (PW-95)
199.1 His deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 09.01.1993 on the instructions of Uttam Poddar to load several bags at Dighi in a tempo. Deposition of PW-95, therefore, corroborates with the confession of A-136, that Uttam Poddar arranged for labourers for loading and unloading of goods at Dighi on 09.01.1993 and that landing took place on the same day.
Deposition of Krishnakant Nathuram Birade (PW-96)
199.2 PW-96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW-95 in that Uttam Poddar (A-30) arranged for labourers for loading and unloading of goods at Dighi Jetty on 09.01.1993.
Deposition of Dilip Bhiku Pansare (PW-97)
199.3 PW-97 reveals as under:-
(i) He was working as a Mechanic in the State Transport Corporation;
(ii) He drove one of the two trucks bearing no. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 9.1.1993 at Dighi Jetty.
(iii) He stated that at Gondghar Phata he was stopped by a police jeep
(iv) He stated that police men boarded the truck no. 5533 and started shouting that there was silver in the truck.
(v) He stated that, in the meanwhile, another truck also came following his truck and the police men also boarded the truck and the persons who were travelling in the said truck said Saab Andar Math Jao, Andhar Kaanch ka Saman Hai The person from the other truck started shouting chacha, M C Chacha.
(vi) He stated that thereafter Shabbir Kadri came and started asking Patil Sahib (A-116) what had happened
(vii) He stated that he took A-116 nearby a white car which was stationed behind the said truck.
(viii) He stated that meanwhile A-30 and A-82 also came there and the discussion took place for about half an hour.
(ix) He stated that, thereafter, 5 silver bricks were taken out of truck no. 5533 and kept in the police jeep.
(x) He stated that when he left the said spot, the other truck alongwith police jeep was still there
(xi) He stated that the person who shouted to take out the keys of his truck was at the rear side portion of the truck.
(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.
(xiii) He stated that the appellant thereafter came to village Hanghar along with other co-accused and un-loaded truck bearing no. 5533.
199.4 The above deposition of PW-97 corroborates with the confession of the appellant (A-136) that goods which had landed at Dighi were loaded in a truck and the same were intercepted by the police officers and after negotiations, it were let off.
200. Upon perusal of the entire evidence as placed by the prosecution the following facts emerge:-
(i) The appellant was a close confidant of Mohd. Dossa gang and was close to Dossa brother and did everything to win over their confidence;
(ii) The appellant was aware of the contents even prior to the landing of the goods at Dighi Jetty which fact is clearly discernible from his own confession and confession of A-134;
(iii) The appellant was given the important task of safe landing and its transportation to respective destinations;
(iv) The appellant was coordinating with the launch which fact is duly corroborated even by the depositions;
(v) The appellant negotiated with police officer for release of the goods.
200.1 Thus, in view of the above, we reach inescapable conclusion that the appellant has rightly been convicted and sentenced by the Designated Court. The appeal is liable to be dismissed.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1023 of 2012
201. As regards the appeal filed by the State for conviction under charge mentioned at head firstly, it is to be noted that the Designated Court has held that A-136 acquired knowledge of arms and ammunitions at Dighi Jetty when the goods were being unloaded and has not played any further role except the transportation of the same from Dighi Jetty to Gondghar Phata where they were intercepted by the police party. After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-136 cannot be convicted under the charge mentioned at head firstly, i.e., conspiracy and the Designated Court has rightly acquitted him from the said charge. In the light of the above discussion, the appeal of the State is liable to be dismissed.
202. Considering the evidence brought on record, the Designated Court held (Part 11):
43-A) The aforesaid material in confession of A-136 not only reveals his own involvement in Dighi landing episode and himself had become aware at Dighi Jetty that the material brought by sea were also containing arms and ammunitions but also discloses involvement of other co-accused in commission of an act as depicted by the same.
43-B) The corroborative material to the matters found in confession of A-136 regarding his such a deep involvement in Dighi landing episode is also found in confession of co-accused A-30, 81 & 134.
43-C) Thus carefully considering material contained in confession of A-136 and that of the aforesaid co-accused definitely leads to the conclusion of A-136 who was close associate of Mohammed Dossa and Mustafa Dossa the main person responsible for Dighi landing, having committed the offences for which he was charged with at head 2nd ly to 3rd ly.
133) Now considering the acts committed by A-136 and more particularly his continuing with the convoy containing arms, his participation in settlement with the police for allowing the convoy to proceed further in spite of his later on knowledge that the same was containing weapons in light of the aforesaid observation leads to no other conclusion but himself having continued to commit the landing operation and further overt acts now for achieving the object of conspiracy. Similarly taking into account that the contraband goods were to contain arms and ammunition i.e. the smuggled goods which could not have been put for any lawful use fortifies the conclusion of A-136 having abetted the acts which were committed by the conspirators and/or rendered the assistance to them by contravening the provisions of law. Such a conclusion legitimately flows from the said material even accepting that A-136 had earlier no knowledge that the goods which had arrived at Dighi Jetty were containing the arms.
271) Now considering the liability of A-136 as revealed from the earlier discussion but without once again repeating the dilation made earlier it can be said that the same having revealed that A-136 had become aware about the nature of goods after he was told regarding the same and the direction of accused Mustafa Dossa by A-134. As dilated earlier, it is clear that though A-136 had continued with the said operation i.e. the operation of smuggling for which he had agreed earlier and in the process having committed the offence under Section 3(3) of TADA still he cannot be said to be guilty for the offence of conspiracy to which A-134 was said to be party. Needless to add that considering the acts committed by A-136, his liability remained confined to having committed the offence under Section 3(3) and Section 6 of TADA.
Sentence:
203. It is contended by the counsel for the appellant that A-136 was arrested on 04.11.1999 and has already undergone the sentence of about more than 8 (eight and a half) years of actual imprisonment. The Designated Court also heard the appellant on the quantum of sentence. Taking note of all the materials and proved charges mentioned at head secondly and thirdly, we are satisfied that the sentence awarded by the Designated Court cannot be said to be excessive. On the other hand, we are of the view that the sentence awarded by the Designated Court to the appellant is justifiable and acceptable, hence, the appeal is liable to be dismissed.
Criminal Appeal No. 401 of 2008
189. The instant appeal is directed against the final judgment and order of conviction and sentence dated 17.10.2006 and 23.05.2007 respectively, whereby the appellant (A-136) has been convicted and sentenced to rigorous imprisonment for 10 (ten) years by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
190. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
190.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy and during the period January, 1993 to March, 1993, abetted and knowingly and intentionally facilitated acts preparatory to terrorist acts
(a) By attending the meeting at Hotel Persian Darbar, Panvel on 06.01.1993 along with co-accused in which co-accused customs officers allowed Mohd. Dossa (AA) and his associates to carry on smuggling activities in their jurisdiction;
(b) He participated along with landing agent Uttam Poddar (A-30) participated in landing of arms, ammunitions and hand-grenades at Dighi on 09.01.1993 and also participated in the transportation of the said arms, ammunitions and hand-grenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment; and
(c) He participated in transportation of the said contraband from Dighi when it was intercepted at Gondghar Phata by police officers of Shrivardhan Police Station and on medication the said truck was allowed to proceed for illegal gratification, thereby, he committed an offence under Section 3(3) of TADA.
At head Thirdly: The appellant with intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunition, their transportation and thereby committed an offence punishable under Section 6 of TADA.
191. The charges mentioned above were proved against the appellant (A-136) except the charge mentioned at head firstly. The Designated Judge found the appellant guilty on the aforesaid charges which are enumerated herein below:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and sentenced to RI for 10 years alongwith a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
ii) The appellant has also been convicted under Section 6 of TADA and has been sentenced to RI for 10 years along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
Evidence
192. The evidence against the appellant (A-136) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Mohd. Kasam Lajpuria @ Mohd. Kalia @ Mechanic Chacha (A-136)
193. The involvement of A-136 in the conspiracy is evident from his own confession under Section 15 of TADA recorded on 09.11.1999 (15:40 hrs.) and 10.11.1999 (09:00 hrs.) by Shri O.P. Chhatwal (PW-684), the then SP, CBI- STF, New Delhi. We have gone through his entire confession. His confession reveals as under:-
(i) The appellant was a Motor mechanic and was previously jailed under COFEPOSA for 1 year. He met Mohd. Dossa (AA) in jail and he started working with him after release.
(ii) He was called as Mechanic Chacha.
(iii) Uttam Poddar (A-30) was a landing agent of Mohd. Dossa in Raigad area.
(iv) 3 trucks, one numbered as 1051, (which was identified by A-134 as the truck used for carrying weapons unloaded at Dighi Jetty), 2 tempos, one Maruti car, one Maruti van and one Maruti gypsy were used for smuggling. False cavities were also made in trucks and tempos to hide the smuggled goods.
These vehicles were brought in false names.
(v) 6-8 months prior to 1993 bomb blasts, a meeting was held between Mohd. Dossa (AA) and Custom Collector Mr. Thapa (A-112) at President Hotel. In the said meeting, the appellant was also present along with other co-accused persons. A-112 told Mohd. Dossa that he can carry out smuggling activities but he must also give some cases of seized goods of smuggling.
(vi) Mohd. Dossa told the appellant and others that his brother Mustafa Dossa will send some arms from Dubai which should be collected at the port.
(vii) On 06.01.1993, a meeting took place between Mohd. Dossa and custom officials at Hotel Persian Durbar, Panvel. The appellant also traveled to Panvel to attend the said meeting. In the meeting, it was decided to pay Rs. 9-10 lacs to Customs officials for single landing.
(viii) A landing took place on 09.01.1993.
(ix) The appellant along with Afsal Gadbad left for Mhasla at 3 p.m. on 09.01.1993.
(x) Thereafter, they met A-30 and all of them then reached Dighi Jetty at 9 Oclock .
(xi) The appellant and others received signal from the ship/launch which came from Dubai on a walkie-talkie. The appellant asked the launch to reach Dighi Jetty.
(xii) About 265 silver bars were loaded in the trucks from the ship. When silver was being uploaded, the captain of ship asked to unload other things too, viz., (i) 15-20 wooden boxes, and (ii) 15-20 tin boxes.
(xiii) A-134 spoke to Mustafa Dossa over telephone about the contents of the boxes and, thereafter, told A-136 to unload the samaan in the truck. Samaan is the lingo for arms in gangsters language.
(xiv) He was travelling in the car and the truck and the tempo loaded with arms were following the car. After taking note of the fact that the truck and the tempo were not following their car, they came back and saw that truck and the tempo had been intercepted by a police party.
(xv) An officer, by name Patil (A-116), stopped the two vehicles and said that he was not paid anything in spite of landings. Meanwhile, A-30 along with A-82 came there and spoke to Patil (A-116) and it was decided that Rs. 8 lakhs would be given to the police.
(xvi) Patil (A-116) kept 5 silver bars as security for a bribe of Rs. 8 lacs to let the trucks pass through.
(xvii) The truck with arms moved towards village Agarwada where Shabbir Qadri (AA) resided. It is further seen that from Agarwada village, arms were loaded into cavities of another truck and sent to Gujarat. Some arms which could not be fitted into the cavities of trucks left with Shabbir Qadri at his residence.
(xix) He got scared that the arms deposited by Ahmed Aulia in his village might be caught leading perhaps to his arrest also.
(xx) He moved to Nepal after 2-3 months of the blasts to evade arrest. In Nepal, he met Mohd. Dossa (AA), Salim Kutta (A-134), and Feroz (AA), amongst others. He was aware that police was in search of him and that the court has also issued a warrant for his arrest.
(xxi) Some of the rifles unloaded at Dighi Jetty on 09.01.1993 were with Ahmed Aulia who was not returning them. He told his wife about this and she passed this information to Crime Branch.
(xxii) The arms which landed at Dighi were brought from Pakistan near Karachi. One boat went to Porbandar and some arms landed there also.
194. As against this, counsel for the appellant submitted that the appellant came to be arrested on 04.11.1999, i.e., after the evidence of most of the witnesses was over. Shri O.P. Chhatwal (PW-684), the then SP, CBI-STF, New Delhi – the officer who recorded his confession, was present at the time of his arrest. He further pointed out that in spite of his advocates information that A-136 does not intend to give confession, a confession was obtained from him on 09.11.1999. In the light of the above objections, we have carefully verified his entire statement, procedure followed, voluntariness etc., of the confession and we are satisfied that there is no substance in the above objections. In view of the objection that the Supervising Officer (PW-684 herein) cannot be permitted to record confession of an accused, this Court has rejected this objection vide S.N. Dube v. N.B. Bhoir & Ors. [(2000) 2 SCC 254], Lal Singh v. State of Gujarat & Anr. [JT 2001 (3) SC 410 : (2001) 3 SCC 221] and Mohd. Amin v. CBI [JT 2008 (12) SC 49 : (2008) 15 SCC 49].
195. Upon perusal of the above confession of the appellant, the following facts emerge
(i) The appellant was a close confidant of Mohd. Dosa gang;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meetings and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case.
196. It has been contended on behalf of the appellant (A-136) that his confession should not be relied upon as he has retracted his confession and his signatures were obtained under coercion. It is relevant to point out that the appellant (A-136) was produced before the CMM, Bombay on 10.11.1999 (one day after recording his confession) he did not make any such complaint to the CMM and the said fact is clear from the order dated 10.11.1999 which records that the contents of the confession of the appellant (A-136) were read out to him and he admitted all the facts. Further, the confession of the appellant (A-136) is corroborated in material respects with the confessions of A-134, A-30 and A-82 insofar as Dighi landing and interception of trucks by police is concerned and was, thus, truthful and voluntary when made.
Confessional Statements of co-accused:
197. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of other co-accused persons which are summarized as under:
Confessional Statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)
197.1 Confessional statement of A-134 under Section 15 of TADA has been recorded on 18.08.1995 (16:00 hrs.) and 19.08.1995 (16:00 hrs.) by Shri Satyakant Rohinikant Saikia (PW-481), the then DIG-CID Crime and Railways, Gujarat State, Ahmedabad. A brief summary of the confession of A-134 with respect to the appellant is summarized herein under:
(i) A-134 was also the member of Mustafa Majnu Gang and later became body guard of Mohd. Dossa.
(ii) A-136, A-134 and Feroz Abdul Rashid were joint partners of 5% share in smuggling activities. A-136 was an active member of Mohd. Dossa gang and was involved in smuggling activities.
(iii) Tiger Memon used to work with Mohd. Dossa.
(iv) A-134 along with A-136 and other co-accused attended a meeting with custom officers at Hotel Persian Darbar in the first week of January, 1993, wherein rate for each landing was fixed at Rs 7 to 8 lakhs per landing. The meeting went on for 3/4 hrs.
(v) In the presence of A-136, Mohd. Dossa informed after talking with Mustafa Majnu over phone that a large quantity of arms and ammunitions had left Dubai. He directed A-134 and Feroz (AA) to go to Dighi in Mhasla and inform the Custom Officers about the said landing and that the appellant would be making other arrangements in this regard.
(vi) In the night of 09.01.1993, A-136 along with other accused persons had gathered at Dighi Jetty for the landing.
(vii) In the night, at about 11 p.m., A-136 was busy on wireless and was trying to establish contact with the launch coming from Dubai. He left in a small boat and after some time returned with the launch.
(viii) After loading all the boxes, bags and silver ingots they all left Dighi Jetty and on their way, the vehicles were intercepted by the police. The appellant, A-134, A-30, A-82 negotiated with the police and it was decided to release the trucks after keeping silver ingots as security in lieu of a bribe of Rs. 10 lacs.
(ix) He saw the boxes contained AK-56 rifles, empty magazines, hand grenades with pins in separate boxes, and ammunition for AK-56 rifles in tin boxes.
(x) A-136 asked Abdul Qayyum to proceed to Gujarat and to contact Mustafa Dossa @ Mustafa Majnu (brother of Mohd. Dosa).
197.2 We are satisfied that the confession of A-134 fully corroborates in material aspects with the confession of the appellant. It is also clear that the appellant was a close confidant of Dossa brothers and he was given the important task to ensure safe landing and its transportation to their respective destinations and the appellant was also present at the time when Mohd. Dossa told A-134 and other co-accused that a large quantity of arms and ammunitions had left Dubai and directed A-134 and Feroz (AA) to go to Dighi in Mhasla and inform the customs officers about the landing and that the appellant would be making other arrangements in this regard.
Confessional Statement of Uttam Shantaram Poddar (A-30)
197.3 Confessional statement of A-30 under Section 15 of TADA has been recorded on 12.07.1993 (17:20 hrs.) and 15.07.1993 (17:00 hrs.) by Meera Borvankar, the then Supdt. of Police, CID, Pune. A summary of the confession of A-30 implicating the appellant is as under:-
(i) He was a landing agent and worked for Mohd. Dossa. He described A-136 as the main person in the gang and that A-136 had asked A-30 to work for Mohd. Dossa.
(ii) A-136 came in his white Maruti car to Dighi on 09.01.1993.
(iii) A-136 was interacting with the ship carrying arms through a walkie talkie.
(iv) After landing at Dighi on 09.01.1993, the vehicles were stopped at Gondghar Phata by the police where V.K. Patil (A-116) was present. A-136 made an offer of Rs. 10 lacs to A-116. 175 silver bricks were there in local truck and 100 bricks in another truck. The police asked what was in the boxes to which A-136 replied that the boxes contained watches. Since there was no cash, A-136 gave silver bricks in lieu of cash to police and left with the trucks.
197.4 Upon perusal of the confession of A-30 it is clear that the appellant was a close confidant of Mohd. Dossa gang and he negotiated the release of trucks with the police and further misled them about the contents of the same.
Confessional Statement of Jaywant Keshav Gurav (A-82)
197.5 Confession statement of Jaywant Keshav Gurav (A-82) under Section 15 of TADA has been recorded on 04.05.1993 and 06.05.1993 (10:00 Hrs) by Shri Tikaram Shrawan Bhal (PW-191), the then Superintendent of Police, Alibaug, Raigad. A-82 does not specifically name the appellant but it corroborates the fact that police officers of Shrivardhan PS had intercepted the truck of Mohd. Dossa Gang and his 4/5 men negotiated with the police.
Confessional Statement of Janardhan Pandurang Gambas (A-81)
197.6 Confessional statement of A-81 under Section 15 of TADA has been recorded on 20.05.1993 (17:30 hrs.) and 21.05.1993 (17:15 hrs.) by Shri T.S. Bhai, the then Supdt. of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi, corroborates with the fact that the appellant was talking on wireless after which a trawler came within 10 minutes towards the Jetty. They unloaded silver bricks and 30 bundles wrapped in gunny clothes around the box and 30 military coloured bags.
198. It is contended by the counsel for the appellant that the confession statements of A-30, A-81 and A-82 cannot be read in evidence against A-136 as they were recorded prior to amendment of TADA i.e. before 22.05.1995. Since we have already dealt with the similar objection in the earlier part of our order, there is no need to traverse the same once again.
Deposition of Prosecution Witnesses:
199. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. The relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:
Deposition of Dinesh Gopal Nakti (PW-95)
199.1 His deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 09.01.1993 on the instructions of Uttam Poddar to load several bags at Dighi in a tempo. Deposition of PW-95, therefore, corroborates with the confession of A-136, that Uttam Poddar arranged for labourers for loading and unloading of goods at Dighi on 09.01.1993 and that landing took place on the same day.
Deposition of Krishnakant Nathuram Birade (PW-96)
199.2 PW-96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW-95 in that Uttam Poddar (A-30) arranged for labourers for loading and unloading of goods at Dighi Jetty on 09.01.1993.
Deposition of Dilip Bhiku Pansare (PW-97)
199.3 PW-97 reveals as under:-
(i) He was working as a Mechanic in the State Transport Corporation;
(ii) He drove one of the two trucks bearing no. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 9.1.1993 at Dighi Jetty.
(iii) He stated that at Gondghar Phata he was stopped by a police jeep
(iv) He stated that police men boarded the truck no. 5533 and started shouting that there was silver in the truck.
(v) He stated that, in the meanwhile, another truck also came following his truck and the police men also boarded the truck and the persons who were travelling in the said truck said Saab Andar Math Jao, Andhar Kaanch ka Saman Hai The person from the other truck started shouting chacha, M C Chacha.
(vi) He stated that thereafter Shabbir Kadri came and started asking Patil Sahib (A-116) what had happened
(vii) He stated that he took A-116 nearby a white car which was stationed behind the said truck.
(viii) He stated that meanwhile A-30 and A-82 also came there and the discussion took place for about half an hour.
(ix) He stated that, thereafter, 5 silver bricks were taken out of truck no. 5533 and kept in the police jeep.
(x) He stated that when he left the said spot, the other truck alongwith police jeep was still there
(xi) He stated that the person who shouted to take out the keys of his truck was at the rear side portion of the truck.
(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.
(xiii) He stated that the appellant thereafter came to village Hanghar along with other co-accused and un-loaded truck bearing no. 5533.
199.4 The above deposition of PW-97 corroborates with the confession of the appellant (A-136) that goods which had landed at Dighi were loaded in a truck and the same were intercepted by the police officers and after negotiations, it were let off.
200. Upon perusal of the entire evidence as placed by the prosecution the following facts emerge:-
(i) The appellant was a close confidant of Mohd. Dossa gang and was close to Dossa brother and did everything to win over their confidence;
(ii) The appellant was aware of the contents even prior to the landing of the goods at Dighi Jetty which fact is clearly discernible from his own confession and confession of A-134;
(iii) The appellant was given the important task of safe landing and its transportation to respective destinations;
(iv) The appellant was coordinating with the launch which fact is duly corroborated even by the depositions;
(v) The appellant negotiated with police officer for release of the goods.
200.1 Thus, in view of the above, we reach inescapable conclusion that the appellant has rightly been convicted and sentenced by the Designated Court. The appeal is liable to be dismissed.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1023 of 2012
201. As regards the appeal filed by the State for conviction under charge mentioned at head firstly, it is to be noted that the Designated Court has held that A-136 acquired knowledge of arms and ammunitions at Dighi Jetty when the goods were being unloaded and has not played any further role except the transportation of the same from Dighi Jetty to Gondghar Phata where they were intercepted by the police party. After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-136 cannot be convicted under the charge mentioned at head firstly, i.e., conspiracy and the Designated Court has rightly acquitted him from the said charge. In the light of the above discussion, the appeal of the State is liable to be dismissed.
202. Considering the evidence brought on record, the Designated Court held (Part 11):
43-A) The aforesaid material in confession of A-136 not only reveals his own involvement in Dighi landing episode and himself had become aware at Dighi Jetty that the material brought by sea were also containing arms and ammunitions but also discloses involvement of other co-accused in commission of an act as depicted by the same.
43-B) The corroborative material to the matters found in confession of A-136 regarding his such a deep involvement in Dighi landing episode is also found in confession of co-accused A-30, 81 & 134.
43-C) Thus carefully considering material contained in confession of A-136 and that of the aforesaid co-accused definitely leads to the conclusion of A-136 who was close associate of Mohammed Dossa and Mustafa Dossa the main person responsible for Dighi landing, having committed the offences for which he was charged with at head 2nd ly to 3rd ly.
133) Now considering the acts committed by A-136 and more particularly his continuing with the convoy containing arms, his participation in settlement with the police for allowing the convoy to proceed further in spite of his later on knowledge that the same was containing weapons in light of the aforesaid observation leads to no other conclusion but himself having continued to commit the landing operation and further overt acts now for achieving the object of conspiracy. Similarly taking into account that the contraband goods were to contain arms and ammunition i.e. the smuggled goods which could not have been put for any lawful use fortifies the conclusion of A-136 having abetted the acts which were committed by the conspirators and/or rendered the assistance to them by contravening the provisions of law. Such a conclusion legitimately flows from the said material even accepting that A-136 had earlier no knowledge that the goods which had arrived at Dighi Jetty were containing the arms.
271) Now considering the liability of A-136 as revealed from the earlier discussion but without once again repeating the dilation made earlier it can be said that the same having revealed that A-136 had become aware about the nature of goods after he was told regarding the same and the direction of accused Mustafa Dossa by A-134. As dilated earlier, it is clear that though A-136 had continued with the said operation i.e. the operation of smuggling for which he had agreed earlier and in the process having committed the offence under Section 3(3) of TADA still he cannot be said to be guilty for the offence of conspiracy to which A-134 was said to be party. Needless to add that considering the acts committed by A-136, his liability remained confined to having committed the offence under Section 3(3) and Section 6 of TADA.
Sentence:
203. It is contended by the counsel for the appellant that A-136 was arrested on 04.11.1999 and has already undergone the sentence of about more than 8 (eight and a half) years of actual imprisonment. The Designated Court also heard the appellant on the quantum of sentence. Taking note of all the materials and proved charges mentioned at head secondly and thirdly, we are satisfied that the sentence awarded by the Designated Court cannot be said to be excessive. On the other hand, we are of the view that the sentence awarded by the Designated Court to the appellant is justifiable and acceptable, hence, the appeal is liable to be dismissed.
