Abdulla Ibrahim Surti Vs. State of Maharashtra thr. CBI-STF, Bombay
EmailAppeal: Criminal Appeal No. 512 of 2008
And
State of Maharashtra v. Faki Ali Faki Ahmed & Ors.
Criminal Appeal No. 401 of 2011
And
The State of Maharashtra v. Abdullah Ibrahim Surti
Criminal Appeal No. 595 of 2011
And
State of Maharashtra v. Faki Ali Faki Ahmed & Ors.
Criminal Appeal No. 401 of 2011
And
The State of Maharashtra v. Abdullah Ibrahim Surti
Criminal Appeal No. 595 of 2011
Petitioner: Abdulla Ibrahim Surti
Respondent: State of Maharashtra thr. CBI-STF, Bombay
Apeal: Criminal Appeal No. 512 of 2008
And
State of Maharashtra v. Faki Ali Faki Ahmed & Ors.
Criminal Appeal No. 401 of 2011
And
The State of Maharashtra v. Abdullah Ibrahim Surti
Criminal Appeal No. 595 of 2011
And
State of Maharashtra v. Faki Ali Faki Ahmed & Ors.
Criminal Appeal No. 401 of 2011
And
The State of Maharashtra v. Abdullah Ibrahim Surti
Criminal Appeal No. 595 of 2011
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA and acquittal of charges of conspiracy – Appellant (A-66) charged for concealing 12 Ak-56 rifles, 36 magazines and 19,500 cartridges of Ak-56 rifles which were kept in mango grove – Confessional statements of A-74, A-81 reveal involvement of accused in disposal of 3 wooden boxes after Bombay blast. Held no error in the findings of conviction.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA and acquittal of charges of conspiracy – Appellant (A-66) charged for concealing 12 Ak-56 rifles, 36 magazines and 19,500 cartridges of Ak-56 rifles which were kept in mango grove – Confessional statements of A-74, A-81 reveal involvement of accused in disposal of 3 wooden boxes after Bombay blast. Held no error in the findings of conviction.
JUDGEMENT:
Criminal Appeal Nol. 512 of 2008
250. This appeal has been preferred against the judgments and orders dated 21.5.2007 and 25.5.2007, passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1/93, Greater Bombay, by which the appellants have been convicted under Sections 3(3) and 6 TADA.
250.1 In view of the fact that each appellant being assigned different acts, has been charged differently and has been awarded a different sentence, it is desirable to deal with the case of each appellant separately to certain extent.
I. Abdulla Ibrahim Surti (A-66):
251. Appellant (A-66) was charged for concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles which were kept in 3 bags in a cloth and 13 cloth bags were kept in the mango grove of Abdul Razak Subedar. These arms and ammunition had been smuggled into India to be used for terrorist activities and were recovered at his instance on 7.4.1993 from the said place.
251.1. He was further charged for disposal of the said arms and ammunition alongwith other co-accused dumping the same in Kandalgaon creek. And lastly for aiding and abetting the co- accused Shabir (AA) and Jamir (A-133) having possession and carrying fire arms and ammunition under Section 6 TADA.
251.2. Appellant (A-66) stood acquitted on the first charge of conspiracy. However, he has been convicted under Sections 3 (3) TADA and awarded RI of five years and a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI of six months. Under Section 6, has been awarded RI of six years and a fine of Rs.25,000/- and a suitable R.I. for default of payment of fine.
Hence, this appeal.
252. Ms. Farhana Shah, learned counsel appearing for the appellant (A-66) has stated that the appellant (A-66) had no knowledge that the items being transported were arms and ammunition. Moreover, he has not made any confession and the confessional statement of the co-accused cannot be relied upon to convict him. Further it was urged that he (A-66) has already served 3 years out of the sentence that has been awarded to him. Thus, the appeal deserves to be allowed.
253. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that confessional statement of Faki Ali Faki Ahmed Subedar (A-74) disclosed the involvement of the appellant in disposal of 3 wooden boxes concealed in the cattleshed of Firoz Khan as the latter wanted to dispose of the hidden boxes of weapons and bags of bullets in the creek after the Bombay Blast on 12.3.1993. He explained how the said contraband material was taken in the boat and thrown in the Kandalwada Creek with the help of some persons including Abdullah Ibrahim Surti (A-66). Therefore, the appeal deserves to be dismissed.
254. We have heard the rival submissions made by learned counsel for the parties and perused the record.
255. Evidence against the appellant (A-66):
(a) Confessional statement of Faki Ahmed Subedar (A-74)
(b) Confessional statement of Janardhan Pandurang Gambas (A- 81)
(c) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(d) Deposition of Shridhar Shantaram Borkar (PW-88)
(e) Deposition of Dattaraybhiku Udarkar (PW-89)
(f) Deposition of Anil Ramchandra Baswat (PW-90)
(g) Deposition of Janu Hajari (PW-378)
(h) Deposition of Vyankatesh Hirba Rane (PW-588)
256. Confessional statement of Faki Ahmed Subedar (A-74):
According to this accused, in the 2nd/3rd week of March, 1993, Shabir came to him and asked for help as Firoz Khan had come from Bombay where some communal disturbance had taken place and he had to hide certain boxes of weapons and bags of bullets in the creek. He wanted a boat to take those weapons to the creek. Thereafter, the Shabir (AA), Jamir (A-133) (dead), appellant (A-66) and Janardhan Pandurang Gambas (A-81) removed those three wooden boxes and six greenish coloured bags kept under the haystack in their cattle shed and kept them in the boat on the shore. Janya Sarsai was in the said boat. Faki Ahmed Subedar (A-74) showed them torch light while bags and boxes were being carried. Thereafter, Shabir came and told that the bundles of weapons and bags of bullets were to be hidden in the mango groves. At that time, appellant (A-66), Janardhan Pandurang Gambas (A-81), and Jamir Sayyed Ismail Kadri (A-133) (dead) were also present.
257. Confessional statement of Janardhan Pandurang Gambas (A-81):
He disclosed that he had a boat and helped smugglers in landing and transportation and, for that purpose, he had been paid by Shabbir Rs.1000/- for each landing. He stated that on 2nd December, 1992, Uttam Potdar (A-30) came to him and conveyed the message of Shabbir to help him in landing of gold, silver and, accordingly, they went to Dighi Jetty in the night. They found a large number of labourers alongwith Shabbir and Uttam Potdar (A-30) and Mechanic Chacha (A-136) and he participated in landing and transportation and he was paid a sum of Rs.5,000/-. On 9th January, 1993, he was again contacted by Uttam Potdar (A-30) and he went for landing alongwith Firoz Khan, Mechanic Chacha (A-136) and Shabbir Kadri. After the landing Uttam Potdar (A-30), brought 30 bundles wrapped by gunny cloth around the box and 30 bags of military black colour and, at that time, Mechanic Chacha (A-136) said that the boxes contained glass wares so they had to be carried carefully. After the Bombay Blast, he (A-81) went to Shabbir Kadris house where he told him (A-81) that the goods which landed on that day were contained guns and ammunition and the same were to be hidden into a pit. They dug pits in the mango grove of Shabbir, came back to his house again and wrapped 12 guns, 4 each from 3 boxes, into the gunny clothes and boxes, packing with thermacol and 26 boxes were hidden in the pit. He (A-81) was paid Rs.1,000/- for doing the said work. While hiding the rifles and ammunition, Faki Ali Chacha (A-74), Abdullah Surti (A-66) and Shabbirs father Sayed Ismail (A-105) were also present. They opened 3 wooden boxes in the house of Faki Ali Faki Ahmed Subedar (A-74). Shabbir told him that the same were magazines of guns. Thereafter, Shabbir (AA), his brother Jamir (A- 133), Abdullah Surti (A-66), Faki Ali Faki Ahmed (A-74) and he (A- 81) went to the boat which was tied near the house of Shabbir, taking 3 boxes, and 6 bags, where Janu Vethkoli was also present who neatly arranged the 6 bags and 3 boxes in the boat. On being asked Faki Ali Faki Ahmed Subedar (A-74) informed him (A-81) that there were bullets in the bags. Subsequently, he was informed that the said goods have properly been kept in the creek water.
258. Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
He disclosed that in January 1993, he had participated in the landing alongwith Uttam Potdar (A-30) and, at that time, on 9th January, 1993, he was also informed by Shabbir that silver and weapons would arrive at Dighi Jetty on the same day. He further deposed that some of the smuggled goods were brought to the house of Shabbir and those wooden boxes and greenish coloured boxes were kept in the house of his (A-133) maternal grandmother for about one month as the house generally used to remain closed. Subsequently, Shabbir said that the boxes had to be shifted to the house of Ali Mian Faki (A-74) which was in close proximity. Janardan Pandurang (A- 81), Ali Mian Faki (A-74), Abdulla Surti (A-66), Shabbir and he (A- 133) picked up those boxes and bags and took to the house of Ali Mian Faki (A-74).
258.1 After 4-5 days of bomb Blast on 12.3.1993, Janardan Gambas (A-81) and Abdullah Surti (A-66) also arrived at his place. Shabbir told them that the wooden boxes and bags had to be thrown in the water. As per the instruction, he brought the boat near the village and Shabbir, Firoz, Abu Bakar, Janardhan Gambas (A-81), Ali Mian Faki (A-74), Abdullah Surti (A-66) and A-133 loaded three wooden boxes and few green colour bags in the boat from the house of Ali Mian Faki (A-74). Shabbir had said that those boxes and bags have to be thrown in creek near Kandalwada. Next night Shabir took him (A-133) to the house of Ali Mian Faki (A-74). Janardan Gambas (A-81), Ali Mian Faki (A-74) and Abdullah (A-66), participated in burying the arms bags and sacks in the mango grove of Subedar.
259. Deposition of Shridhar Shantaram Borkar (PW-88):
He was the panch witness to the disclosure statement made by Faki Ali Faki Ahmed Subedar (A-74) on 7.4.1993, and also the recovery of weapons from the mango grove.
260. Deposition of Dattaraybhiku Udarkar (PW-89):
He was the panch witness to the statement made by Janu Vetkholi (PW-378) on 8.4.1993, and to the recovery of weapons from Kandalwada creek. He recognised the seizure panchnama Exh. 503 in court.
261. Deposition of Anil Ramchandra Baswat (PW-90):
He deposed that he had arranged for a boat and took police party and Janu Vetkholi (PW-378) into Kandalgaon creek, wherefrom three wooden boxes and six military colour bags were found from which weapons and ammunition were recovered.
262. Deposition of Janu Vetkholi (PW-378):
His deposition revealed that he was earlier an accused but subsequently discharged. He did not name the appellant A-66, however, corroborated the confessional statement made by all others including Ali Mian Faki (A-74) and Janardan Pandurang Gambas (A- 81).
263. Deposition of Vyankatesh Hirba Rane (PW-588):
He had recorded the disclosure statement made by Faki Ali Faki Ahmed Subedar (A-74) in presence of the panch witnesses on 7.4.1993. In the said statement, he had disclosed the location where arms were hidden. Faki Ali Faki Ahmed Subedar (A-74) led the police party to mango grove from where the weapons were recovered. Vyankatesh Hirba Rane (PW-588) recorded the FIR and arrested Janu Vetkholi (PW-378) on 8.4.1993. Janu Vetkholi (PW-378) took the police party to the creek from where three wooden boxes and six military coloured boxes were recovered containing weapons.
264. The learned Designated Court after appreciating the evidence came to the conclusion that the involvement of the appellant (A-66) in commission of similar acts was established by the material contained in confession of the appellants (A-74 and A-81) and Jamir Sayyed Ismail Kadri (A-133) and he was held guilty for commission of offences under sections 3(3) and 6 TADA.
265. We find no reason to interfere with the judgment of the learned Special Judge. The appeal with respect to appellant (A-66) lacks merit and is accordingly dismissed.
************
250. This appeal has been preferred against the judgments and orders dated 21.5.2007 and 25.5.2007, passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1/93, Greater Bombay, by which the appellants have been convicted under Sections 3(3) and 6 TADA.
250.1 In view of the fact that each appellant being assigned different acts, has been charged differently and has been awarded a different sentence, it is desirable to deal with the case of each appellant separately to certain extent.
I. Abdulla Ibrahim Surti (A-66):
251. Appellant (A-66) was charged for concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles which were kept in 3 bags in a cloth and 13 cloth bags were kept in the mango grove of Abdul Razak Subedar. These arms and ammunition had been smuggled into India to be used for terrorist activities and were recovered at his instance on 7.4.1993 from the said place.
251.1. He was further charged for disposal of the said arms and ammunition alongwith other co-accused dumping the same in Kandalgaon creek. And lastly for aiding and abetting the co- accused Shabir (AA) and Jamir (A-133) having possession and carrying fire arms and ammunition under Section 6 TADA.
251.2. Appellant (A-66) stood acquitted on the first charge of conspiracy. However, he has been convicted under Sections 3 (3) TADA and awarded RI of five years and a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI of six months. Under Section 6, has been awarded RI of six years and a fine of Rs.25,000/- and a suitable R.I. for default of payment of fine.
Hence, this appeal.
252. Ms. Farhana Shah, learned counsel appearing for the appellant (A-66) has stated that the appellant (A-66) had no knowledge that the items being transported were arms and ammunition. Moreover, he has not made any confession and the confessional statement of the co-accused cannot be relied upon to convict him. Further it was urged that he (A-66) has already served 3 years out of the sentence that has been awarded to him. Thus, the appeal deserves to be allowed.
253. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that confessional statement of Faki Ali Faki Ahmed Subedar (A-74) disclosed the involvement of the appellant in disposal of 3 wooden boxes concealed in the cattleshed of Firoz Khan as the latter wanted to dispose of the hidden boxes of weapons and bags of bullets in the creek after the Bombay Blast on 12.3.1993. He explained how the said contraband material was taken in the boat and thrown in the Kandalwada Creek with the help of some persons including Abdullah Ibrahim Surti (A-66). Therefore, the appeal deserves to be dismissed.
254. We have heard the rival submissions made by learned counsel for the parties and perused the record.
255. Evidence against the appellant (A-66):
(a) Confessional statement of Faki Ahmed Subedar (A-74)
(b) Confessional statement of Janardhan Pandurang Gambas (A- 81)
(c) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(d) Deposition of Shridhar Shantaram Borkar (PW-88)
(e) Deposition of Dattaraybhiku Udarkar (PW-89)
(f) Deposition of Anil Ramchandra Baswat (PW-90)
(g) Deposition of Janu Hajari (PW-378)
(h) Deposition of Vyankatesh Hirba Rane (PW-588)
256. Confessional statement of Faki Ahmed Subedar (A-74):
According to this accused, in the 2nd/3rd week of March, 1993, Shabir came to him and asked for help as Firoz Khan had come from Bombay where some communal disturbance had taken place and he had to hide certain boxes of weapons and bags of bullets in the creek. He wanted a boat to take those weapons to the creek. Thereafter, the Shabir (AA), Jamir (A-133) (dead), appellant (A-66) and Janardhan Pandurang Gambas (A-81) removed those three wooden boxes and six greenish coloured bags kept under the haystack in their cattle shed and kept them in the boat on the shore. Janya Sarsai was in the said boat. Faki Ahmed Subedar (A-74) showed them torch light while bags and boxes were being carried. Thereafter, Shabir came and told that the bundles of weapons and bags of bullets were to be hidden in the mango groves. At that time, appellant (A-66), Janardhan Pandurang Gambas (A-81), and Jamir Sayyed Ismail Kadri (A-133) (dead) were also present.
257. Confessional statement of Janardhan Pandurang Gambas (A-81):
He disclosed that he had a boat and helped smugglers in landing and transportation and, for that purpose, he had been paid by Shabbir Rs.1000/- for each landing. He stated that on 2nd December, 1992, Uttam Potdar (A-30) came to him and conveyed the message of Shabbir to help him in landing of gold, silver and, accordingly, they went to Dighi Jetty in the night. They found a large number of labourers alongwith Shabbir and Uttam Potdar (A-30) and Mechanic Chacha (A-136) and he participated in landing and transportation and he was paid a sum of Rs.5,000/-. On 9th January, 1993, he was again contacted by Uttam Potdar (A-30) and he went for landing alongwith Firoz Khan, Mechanic Chacha (A-136) and Shabbir Kadri. After the landing Uttam Potdar (A-30), brought 30 bundles wrapped by gunny cloth around the box and 30 bags of military black colour and, at that time, Mechanic Chacha (A-136) said that the boxes contained glass wares so they had to be carried carefully. After the Bombay Blast, he (A-81) went to Shabbir Kadris house where he told him (A-81) that the goods which landed on that day were contained guns and ammunition and the same were to be hidden into a pit. They dug pits in the mango grove of Shabbir, came back to his house again and wrapped 12 guns, 4 each from 3 boxes, into the gunny clothes and boxes, packing with thermacol and 26 boxes were hidden in the pit. He (A-81) was paid Rs.1,000/- for doing the said work. While hiding the rifles and ammunition, Faki Ali Chacha (A-74), Abdullah Surti (A-66) and Shabbirs father Sayed Ismail (A-105) were also present. They opened 3 wooden boxes in the house of Faki Ali Faki Ahmed Subedar (A-74). Shabbir told him that the same were magazines of guns. Thereafter, Shabbir (AA), his brother Jamir (A- 133), Abdullah Surti (A-66), Faki Ali Faki Ahmed (A-74) and he (A- 81) went to the boat which was tied near the house of Shabbir, taking 3 boxes, and 6 bags, where Janu Vethkoli was also present who neatly arranged the 6 bags and 3 boxes in the boat. On being asked Faki Ali Faki Ahmed Subedar (A-74) informed him (A-81) that there were bullets in the bags. Subsequently, he was informed that the said goods have properly been kept in the creek water.
258. Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
He disclosed that in January 1993, he had participated in the landing alongwith Uttam Potdar (A-30) and, at that time, on 9th January, 1993, he was also informed by Shabbir that silver and weapons would arrive at Dighi Jetty on the same day. He further deposed that some of the smuggled goods were brought to the house of Shabbir and those wooden boxes and greenish coloured boxes were kept in the house of his (A-133) maternal grandmother for about one month as the house generally used to remain closed. Subsequently, Shabbir said that the boxes had to be shifted to the house of Ali Mian Faki (A-74) which was in close proximity. Janardan Pandurang (A- 81), Ali Mian Faki (A-74), Abdulla Surti (A-66), Shabbir and he (A- 133) picked up those boxes and bags and took to the house of Ali Mian Faki (A-74).
258.1 After 4-5 days of bomb Blast on 12.3.1993, Janardan Gambas (A-81) and Abdullah Surti (A-66) also arrived at his place. Shabbir told them that the wooden boxes and bags had to be thrown in the water. As per the instruction, he brought the boat near the village and Shabbir, Firoz, Abu Bakar, Janardhan Gambas (A-81), Ali Mian Faki (A-74), Abdullah Surti (A-66) and A-133 loaded three wooden boxes and few green colour bags in the boat from the house of Ali Mian Faki (A-74). Shabbir had said that those boxes and bags have to be thrown in creek near Kandalwada. Next night Shabir took him (A-133) to the house of Ali Mian Faki (A-74). Janardan Gambas (A-81), Ali Mian Faki (A-74) and Abdullah (A-66), participated in burying the arms bags and sacks in the mango grove of Subedar.
259. Deposition of Shridhar Shantaram Borkar (PW-88):
He was the panch witness to the disclosure statement made by Faki Ali Faki Ahmed Subedar (A-74) on 7.4.1993, and also the recovery of weapons from the mango grove.
260. Deposition of Dattaraybhiku Udarkar (PW-89):
He was the panch witness to the statement made by Janu Vetkholi (PW-378) on 8.4.1993, and to the recovery of weapons from Kandalwada creek. He recognised the seizure panchnama Exh. 503 in court.
261. Deposition of Anil Ramchandra Baswat (PW-90):
He deposed that he had arranged for a boat and took police party and Janu Vetkholi (PW-378) into Kandalgaon creek, wherefrom three wooden boxes and six military colour bags were found from which weapons and ammunition were recovered.
262. Deposition of Janu Vetkholi (PW-378):
His deposition revealed that he was earlier an accused but subsequently discharged. He did not name the appellant A-66, however, corroborated the confessional statement made by all others including Ali Mian Faki (A-74) and Janardan Pandurang Gambas (A- 81).
263. Deposition of Vyankatesh Hirba Rane (PW-588):
He had recorded the disclosure statement made by Faki Ali Faki Ahmed Subedar (A-74) in presence of the panch witnesses on 7.4.1993. In the said statement, he had disclosed the location where arms were hidden. Faki Ali Faki Ahmed Subedar (A-74) led the police party to mango grove from where the weapons were recovered. Vyankatesh Hirba Rane (PW-588) recorded the FIR and arrested Janu Vetkholi (PW-378) on 8.4.1993. Janu Vetkholi (PW-378) took the police party to the creek from where three wooden boxes and six military coloured boxes were recovered containing weapons.
264. The learned Designated Court after appreciating the evidence came to the conclusion that the involvement of the appellant (A-66) in commission of similar acts was established by the material contained in confession of the appellants (A-74 and A-81) and Jamir Sayyed Ismail Kadri (A-133) and he was held guilty for commission of offences under sections 3(3) and 6 TADA.
265. We find no reason to interfere with the judgment of the learned Special Judge. The appeal with respect to appellant (A-66) lacks merit and is accordingly dismissed.
************
