Ayub Ibrahim Qureshi Vs. State of Maharashtra Thr. CBI (STF)
EmailAppeal: Criminal Appeal Nos.617-618 of 2008
Petitioner: Ayub Ibrahim Qureshi
Respondent: State of Maharashtra Thr. CBI (STF)
Apeal: Criminal Appeal Nos.617-618 of 2008
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3 (3) and 5 Arms Act, 1959, Sections 3 & 7 read with Section 25 (1A) and 1(B) – Arms & ammunition supplied to appellant by A49 Appellant fully aware of the nature of weapon and cartridges Concealing one pistol and 52 rounds – Getting it recovered after digging the earth Oral evidence of C and R and statement in the memorandum panchnama connecting appellant in the crime of concealment of arms and ammunition – Conviction under Section 5, as he was in possession of unauthorized weapon in a notified area and under Section 3 (3) as he committed perpetratory act for commission of terrorist act No award of sentence under Section 6, considering the quantity of arms. Held no interference required.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3 (3) and 5 Arms Act, 1959, Sections 3 & 7 read with Section 25 (1A) and 1(B) – Arms & ammunition supplied to appellant by A49 Appellant fully aware of the nature of weapon and cartridges Concealing one pistol and 52 rounds – Getting it recovered after digging the earth Oral evidence of C and R and statement in the memorandum panchnama connecting appellant in the crime of concealment of arms and ammunition – Conviction under Section 5, as he was in possession of unauthorized weapon in a notified area and under Section 3 (3) as he committed perpetratory act for commission of terrorist act No award of sentence under Section 6, considering the quantity of arms. Held no interference required.
Held:
HELD
Appellant had been given the contraband material by A-49, and he (A-123) was fully aware of the nature of the weapon and cartridges. The relevant Panchnama, i.e., the statement in the memorandum Panchnama, the oral evidence of Chandrakant Vaidya, panch witness (PW-40) and evidence of Ratansingh Kalu (PW-600) connect the appellant (A-123) in concealing the weapon and ammunition. (Para 76)
Appellant had been given the contraband material by A-49, and he (A-123) was fully aware of the nature of the weapon and cartridges. The relevant Panchnama, i.e., the statement in the memorandum Panchnama, the oral evidence of Chandrakant Vaidya, panch witness (PW-40) and evidence of Ratansingh Kalu (PW-600) connect the appellant (A-123) in concealing the weapon and ammunition. (Para 76)
Designated Court held that contraband articles which had been recovered from Ayub Ibrahim Qureshi (A-123), were received from Ashraf Shaikh Ali Barmare (A-49) and the appellant (A-123) concealed the same by digging up the earth in close vicinity of railway station. The appellant (A-123) has accepted the said articles from Ashraf Shaikh Ali Barmare (A-49), knowing the nature of the arms and ammunition. The appellant (A-123) did not make any attempt to rebut the knowledge about the nature of the arms and ammunition. Therefore, the conclusion has been drawn that the appellant (A-123) was in possession of the contraband material unauthorisedly within notified area of Bombay and, thus, committed the offence under Section 5 TADA. Further, the appellant (A-123) committed perpetratory act for commission of terrorist acts and, hence, was held guilty under Section 3(3) TADA. However, considering the quantum of rounds and pistol possessed by the appellant and the duration for which it was held, he was not found guilty under Section 6 TADA. (Para 75)
As the provisions of Sections 5 and 3(3) TADA provide for a minimum sentence of 5 years, this Court cannot award a punishment lesser than what is prescribed under the statute. We do not see any reason to interfere with the impugned judgment and order and appeals lack merit and are, accordingly dismissed. (Para 76.1)
JUDGEMENT:
Judgment (Contd.)
63. These appeals have been preferred against the judgment and order dated 18.9.2006 and 19.7.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993 by which the appellant has been found guilty under Sections 3(3) and 5 TADA and Sections 3 and 7 read with Section 25(1-A) & (1-B) (a) of the Arms Act, and has been awarded a punishment to undergo 5 years RI alongwith a fine of Rs.12,500/-, and in default of payment of fine, he was ordered to suffer further RI for a period of 3 months under Section 3(3), alongwith a similar punishment as was awarded under Section 5 TADA. For conviction under Sections 3 and 7, read with Section 25(1-A) (1-B)(a) of the Arms Act, no separate punishment has been awarded. However, all the sentences awarded were directed to run concurrently.
Hence, these appeals.
64. Fact and circumstances giving rise to these appeals are that :
A. In addition to the first charge of conspiracy, secondly, he was charged for keeping one pistol and 52 rounds for four days in April 1993, which were unauthorisedly given to him by co-accused Nasim Ashraf Shaikh Ali Barmare (A-49) and the same is an offence under Section 3(3) TADA.
B. Thirdly, he was charged for acquiring one pistol and 52 rounds during the aforesaid period from Ashraf Shaikh Ali Barmare (A-49) and for concealing the same within the Railway Terminal Compound, Yunus Manzil, Naupada and that thus, he had been in possession of the said arms and ammunition and has therefore, been charged under Section 5 TADA.
C. Fourthly, he (A-123) has been charged for possession of the aforesaid arms and ammunition and thereby, for contravening the provisions of the Arms Act, and therefore, has committed an offence under Section 6 TADA.
D. Fifthly, he has been charged for the possession of the said arms, and thus, for violating the provisions of Sections 3 and 7, read with Sections 25(1-A) and (1-B)(a) of the Arms Act.
65. Ms. Farhana Shah, learned counsel appearing for the appellant, has submitted that his possession of one revolver and 52 cartridges lasted only a period of 2-3 days. The same had been handed over to him by Ashraf Shaikh Ali Barmare (A-49), and were later recovered from an open public place, and not from the house of the appellant (A-123). The incident of the blast had occurred on 12.3.1993, and the said recovery was made on 8.4.1993, and hence, the same cannot be connected with the Bombay blast. The material so recovered was in view of the disclosure statement made by the appellant (A-123), and was never produced in court despite an order passed by the Designated Court to this effect. Subsequently, the said contraband were produced, but no explanation was furnished by the prosecution for 20 cartridges that were missing.
66. Mr. Mukul Gupta, learned senior counsel appearing for the CBI, has vehemently opposed the appeal contending that his possession was conscious possession, and that the appellant (A-123) was fully aware of the contents of the bag which was handed over to him by Ashraf Shaikh Ali Barmare (A-49) and contained one revolver and 52 cartridges and was also aware that it was illegal for him to be in possession of such arms and ammunition. The same is punishable under the provisions of TADA. Therefore, the appellant (A-123) has rightly been convicted on the basis of his possession and the present appeal is, therefore, liable to be dismissed.
67. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
68. Evidence against the appellant (A-123) :
(a) Confessional statement of Ashraf Shaikh Ali Barmare(A-49)
(b) Deposition of Chandrakant Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu (PW-600)
(d) Deposition of Shri Vishnu Shinde (PW.615)
(e) Deposition of Waman Kulkarni (PW.662)
(f) Deposition of Krishanlal Bishnoi (PW-193)
In the instant case, there is no confessional statement of the appellant Ayub Ibrahim Qureshi (A-123).
69. Confessional statement of Ashraf Shaikh Ali Barmare (A- 49):
Confessional statement of co-accused (A-49) was recorded by K.L. Bishnoi, DCP (PW-193) under Section 15 TADA, wherein the said accused revealed that in the first week of April, he had given one pistol and 52 rounds to the appellant (A-123) and that the recovery of the same was made by the police on 8.4.1993 at the disclosure statement of the appellant (A-123) in the presence of Panch witnesses.
70. Deposition of Chandrakant Vaidya (PW-40):
He was the Panch witness and has deposed that the appellant (A- 123) took them to Railway Terminal Compound Yunus Manzil, Naupada, and got the recovery of one pistol and 52 rounds made after digging the earth there. He also deposed about the Panchnama (Ex.127) prepared in this respect by Ratansingh Kalu (PW-600).
71. Deposition of Ratansingh Kalu (PW-600):
He corroborated the evidence of Chandrakant Vaidya (PW-40) that the appellant (A-123) took the police party to Railway Terminal Compound Yunus Manzil, Naupada, and on his disclosure, the police recovered one pistol and 52 rounds and he prepared the Panchanama (Ex. 127).
72. Deposition of Shri Vishnu Shinde (PW.615):
He just proved the signature of PSI Shri Pharande on (Ex.2177), forwarded letter to the Chemical Analyzer.
73. Deposition of Waman Kulkarni (PW.662):
He deposed that Chemical Analyzer report dated 7.6.1993 (Ex.2177) was received by him on 30.6.1993.
74. Deposition of Krishanlal Bishnoi (PW-193):
PW-193, a police officer (DCP), deposed that he had recorded the confessional statement of Ashraf Shaikh Ali Barmare (A-49) which he made voluntarily and all the statutory provisions of TADA were strictly adhered to.
75. After considering the entire evidence on record, the Designated Court held that contraband articles which had been recovered from Ayub Ibrahim Qureshi (A-123), were received from Ashraf Shaikh Ali Barmare (A-49) and the appellant (A-123) concealed the same by digging up the earth in close vicinity of railway station. The appellant (A-123) has accepted the said articles from Ashraf Shaikh Ali Barmare (A-49), knowing the nature of the arms and ammunition. The appellant (A-123) did not make any attempt to rebut the knowledge about the nature of the arms and ammunition. Therefore, the conclusion has been drawn that the appellant (A-123) was in possession of the contraband material unauthorisedly within notified area of Bombay and, thus, committed the offence under Section 5 TADA. Further, the appellant (A-123) committed perpetratory act for commission of terrorist acts and, hence, was held guilty under Section 3(3) TADA. However, considering the quantum of rounds and pistol possessed by the appellant and the duration for which it was held, he was not found guilty under Section 6 TADA.
76. We have reappreciated the evidence on record and considered the arguments advanced by Ms. Farhana Shah. We do not see any cogent reason to take a view different from that of the learned Designated Court. The involvement of appellant (A-123) in the offences for which the charges have been found proved against him by the Designated Court, stood fully established. Appellant had been given the contraband material by A-49, and he (A-123) was fully aware of the nature of the weapon and cartridges. The relevant Panchnama, i.e., the statement in the memorandum Panchnama, the oral evidence of Chandrakant Vaidya, panch witness (PW-40) and evidence of Ratansingh Kalu (PW-600) connect the appellant (A-123) in concealing the weapon and ammunition.
76.1 As the provisions of Sections 5 and 3(3) TADA provide for a minimum sentence of 5 years, this Court cannot award a punishment lesser than what is prescribed under the statute. We do not see any reason to interfere with the impugned judgment and order and appeals lack merit and are, accordingly dismissed.
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63. These appeals have been preferred against the judgment and order dated 18.9.2006 and 19.7.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993 by which the appellant has been found guilty under Sections 3(3) and 5 TADA and Sections 3 and 7 read with Section 25(1-A) & (1-B) (a) of the Arms Act, and has been awarded a punishment to undergo 5 years RI alongwith a fine of Rs.12,500/-, and in default of payment of fine, he was ordered to suffer further RI for a period of 3 months under Section 3(3), alongwith a similar punishment as was awarded under Section 5 TADA. For conviction under Sections 3 and 7, read with Section 25(1-A) (1-B)(a) of the Arms Act, no separate punishment has been awarded. However, all the sentences awarded were directed to run concurrently.
Hence, these appeals.
64. Fact and circumstances giving rise to these appeals are that :
A. In addition to the first charge of conspiracy, secondly, he was charged for keeping one pistol and 52 rounds for four days in April 1993, which were unauthorisedly given to him by co-accused Nasim Ashraf Shaikh Ali Barmare (A-49) and the same is an offence under Section 3(3) TADA.
B. Thirdly, he was charged for acquiring one pistol and 52 rounds during the aforesaid period from Ashraf Shaikh Ali Barmare (A-49) and for concealing the same within the Railway Terminal Compound, Yunus Manzil, Naupada and that thus, he had been in possession of the said arms and ammunition and has therefore, been charged under Section 5 TADA.
C. Fourthly, he (A-123) has been charged for possession of the aforesaid arms and ammunition and thereby, for contravening the provisions of the Arms Act, and therefore, has committed an offence under Section 6 TADA.
D. Fifthly, he has been charged for the possession of the said arms, and thus, for violating the provisions of Sections 3 and 7, read with Sections 25(1-A) and (1-B)(a) of the Arms Act.
65. Ms. Farhana Shah, learned counsel appearing for the appellant, has submitted that his possession of one revolver and 52 cartridges lasted only a period of 2-3 days. The same had been handed over to him by Ashraf Shaikh Ali Barmare (A-49), and were later recovered from an open public place, and not from the house of the appellant (A-123). The incident of the blast had occurred on 12.3.1993, and the said recovery was made on 8.4.1993, and hence, the same cannot be connected with the Bombay blast. The material so recovered was in view of the disclosure statement made by the appellant (A-123), and was never produced in court despite an order passed by the Designated Court to this effect. Subsequently, the said contraband were produced, but no explanation was furnished by the prosecution for 20 cartridges that were missing.
66. Mr. Mukul Gupta, learned senior counsel appearing for the CBI, has vehemently opposed the appeal contending that his possession was conscious possession, and that the appellant (A-123) was fully aware of the contents of the bag which was handed over to him by Ashraf Shaikh Ali Barmare (A-49) and contained one revolver and 52 cartridges and was also aware that it was illegal for him to be in possession of such arms and ammunition. The same is punishable under the provisions of TADA. Therefore, the appellant (A-123) has rightly been convicted on the basis of his possession and the present appeal is, therefore, liable to be dismissed.
67. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
68. Evidence against the appellant (A-123) :
(a) Confessional statement of Ashraf Shaikh Ali Barmare(A-49)
(b) Deposition of Chandrakant Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu (PW-600)
(d) Deposition of Shri Vishnu Shinde (PW.615)
(e) Deposition of Waman Kulkarni (PW.662)
(f) Deposition of Krishanlal Bishnoi (PW-193)
In the instant case, there is no confessional statement of the appellant Ayub Ibrahim Qureshi (A-123).
69. Confessional statement of Ashraf Shaikh Ali Barmare (A- 49):
Confessional statement of co-accused (A-49) was recorded by K.L. Bishnoi, DCP (PW-193) under Section 15 TADA, wherein the said accused revealed that in the first week of April, he had given one pistol and 52 rounds to the appellant (A-123) and that the recovery of the same was made by the police on 8.4.1993 at the disclosure statement of the appellant (A-123) in the presence of Panch witnesses.
70. Deposition of Chandrakant Vaidya (PW-40):
He was the Panch witness and has deposed that the appellant (A- 123) took them to Railway Terminal Compound Yunus Manzil, Naupada, and got the recovery of one pistol and 52 rounds made after digging the earth there. He also deposed about the Panchnama (Ex.127) prepared in this respect by Ratansingh Kalu (PW-600).
71. Deposition of Ratansingh Kalu (PW-600):
He corroborated the evidence of Chandrakant Vaidya (PW-40) that the appellant (A-123) took the police party to Railway Terminal Compound Yunus Manzil, Naupada, and on his disclosure, the police recovered one pistol and 52 rounds and he prepared the Panchanama (Ex. 127).
72. Deposition of Shri Vishnu Shinde (PW.615):
He just proved the signature of PSI Shri Pharande on (Ex.2177), forwarded letter to the Chemical Analyzer.
73. Deposition of Waman Kulkarni (PW.662):
He deposed that Chemical Analyzer report dated 7.6.1993 (Ex.2177) was received by him on 30.6.1993.
74. Deposition of Krishanlal Bishnoi (PW-193):
PW-193, a police officer (DCP), deposed that he had recorded the confessional statement of Ashraf Shaikh Ali Barmare (A-49) which he made voluntarily and all the statutory provisions of TADA were strictly adhered to.
75. After considering the entire evidence on record, the Designated Court held that contraband articles which had been recovered from Ayub Ibrahim Qureshi (A-123), were received from Ashraf Shaikh Ali Barmare (A-49) and the appellant (A-123) concealed the same by digging up the earth in close vicinity of railway station. The appellant (A-123) has accepted the said articles from Ashraf Shaikh Ali Barmare (A-49), knowing the nature of the arms and ammunition. The appellant (A-123) did not make any attempt to rebut the knowledge about the nature of the arms and ammunition. Therefore, the conclusion has been drawn that the appellant (A-123) was in possession of the contraband material unauthorisedly within notified area of Bombay and, thus, committed the offence under Section 5 TADA. Further, the appellant (A-123) committed perpetratory act for commission of terrorist acts and, hence, was held guilty under Section 3(3) TADA. However, considering the quantum of rounds and pistol possessed by the appellant and the duration for which it was held, he was not found guilty under Section 6 TADA.
76. We have reappreciated the evidence on record and considered the arguments advanced by Ms. Farhana Shah. We do not see any cogent reason to take a view different from that of the learned Designated Court. The involvement of appellant (A-123) in the offences for which the charges have been found proved against him by the Designated Court, stood fully established. Appellant had been given the contraband material by A-49, and he (A-123) was fully aware of the nature of the weapon and cartridges. The relevant Panchnama, i.e., the statement in the memorandum Panchnama, the oral evidence of Chandrakant Vaidya, panch witness (PW-40) and evidence of Ratansingh Kalu (PW-600) connect the appellant (A-123) in concealing the weapon and ammunition.
76.1 As the provisions of Sections 5 and 3(3) TADA provide for a minimum sentence of 5 years, this Court cannot award a punishment lesser than what is prescribed under the statute. We do not see any reason to interfere with the impugned judgment and order and appeals lack merit and are, accordingly dismissed.
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