Noor Mohammed Haji Mohammed Khan Vs. The State of Maharashtra (through CBI, STF)
EmailAppeal: Criminal Appeal No. 1225 of 2007
Petitioner: Noor Mohammed Haji Mohammed Khan
Respondent: The State of Maharashtra (through CBI, STF)
Apeal: Criminal Appeal No. 1225 of 2007
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), 5, 15 – Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a) -Allegation of permitting accused ‘M’ (AA) and others to store RDX in godown between 2-9.2.1993 – 58 bags of RDX Recovery of Confessional statement of appellant A50 to the effect that said bags were found in a shed and same were delivered by his friend ‘M’ (AA) Denial by ‘M’ (AA) – R a friend of appellant informing the contents of bag to be explosives Appellant paid Rs. 5 lacs to one Mu, A24 to destroy the same Yet some explosives remained Out of those, some thrown off at bridge and remaining into Nagla Creek – Retraction of confession at belated stage Evidence/confessional statement of appellant accused/co-accused proving possession/ownership of godown, dumping of contraband, removal and disposal of same Plea that recovery memo was not signed by accused, hence no reliance can be placed on it Reliance placed on Jackaran Singh v. State of Punjab. Held facts of the present case is different. In Jackaran Singh’s case, panch witnesses were not examined. That was not the case here.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3), 5, 15 – Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a) -Allegation of permitting accused ‘M’ (AA) and others to store RDX in godown between 2-9.2.1993 – 58 bags of RDX Recovery of Confessional statement of appellant A50 to the effect that said bags were found in a shed and same were delivered by his friend ‘M’ (AA) Denial by ‘M’ (AA) – R a friend of appellant informing the contents of bag to be explosives Appellant paid Rs. 5 lacs to one Mu, A24 to destroy the same Yet some explosives remained Out of those, some thrown off at bridge and remaining into Nagla Creek – Retraction of confession at belated stage Evidence/confessional statement of appellant accused/co-accused proving possession/ownership of godown, dumping of contraband, removal and disposal of same Plea that recovery memo was not signed by accused, hence no reliance can be placed on it Reliance placed on Jackaran Singh v. State of Punjab. Held facts of the present case is different. In Jackaran Singh’s case, panch witnesses were not examined. That was not the case here.
Sections 3 (3), 5 – Arms Act, 1959, Sections 3, 7 read with Sections 25 (1A) (1B)(a) – Allegation of permitting accused ‘M’ (AA) and others to store RDX in godown between 2-9.2.1993 – 58 bags of RDX Recovery of Confessional statement of appellant A50 that said bags were found in a shed and same were delivered by his friend ‘M’ (AA) Denial by ‘M’ (AA) – R a friend of appellant informing the contents of bag to be explosives Appellant paid Rs. 5 lacs to one Mu, A24 to destroy the same Yet some explosives remained Out of those some were thrown off at bridge and remaining into Nagla Creek – Designated Court holding appellant guilty of possession of unauthorized contraband in notified area Also guilty of destroying the same No nexus with ‘TM’ (AA) and no link in conspiracy hatched by ‘TM’ (AA). Held that appellant was in close association with ‘M’ (AA) and other co-accused and spent Rs. 5 lacs to dispose off the contraband. Being in possession of the contraband, he was guilty under Section 5 of TADA and under Section 201 IPC as contraband was disposed of on his instruction.
Held:
The submissions made by Mr. Sinha, learned counsel appearing for the appellant, to the effect that as the recovery memo did not contain signature of the appellant, the same cannot be relied upon, even though, to fortify such submission, he has placed very heavy reliance upon the judgment of this Court in Jackaran Singh v. State of Punjab, [AIR 1995 SC 2345], wherein it has been held that the absence of signatures or thumb impressions of the accused upon their disclosure statements, may render the said statements unreliable, particularly, in a case where the panch witness has not been examined at a trial, to testify the authenticity of the same. The judgment relied upon by Shri Sinha is easily distinguishable, as in the said case none of the panch witnesses had been examined, while in the instant case, the panch witness has been examined. (Para 170)
After appreciating the evidence on record, the learned Designated Court came to the conclusion that the appellant had been in the unauthorised possession of 58 bags of RDX material within the notified area, and that he had indulged, alongwith the other co- accused conspirators, in the disposal of the said RDX material by dumping the same into the Nagla creek and the Kaman river. However, the Designated Court has further held, that no nexus could be established between the appellant (A-50) and Tiger Memon (AA). Additionally, the Designated Court has stated that there was also no nexus found between the offences committed in pursuance of the conspiracy as was hatched by Tiger Memon (AA), and the acts of the appellant (A-50). (Para 172)
This conclusion stands fortified from the confessional statement of the appellant, as well as from the statements of the other witnesses. The appellant was most certainly had close association with Mohammad Jindran (AA), Rashid and with a few other accused persons. The appellant had spent about Rs.5 lakhs for the disposal of the said material. Rashid, a very close associate of Tiger Memon (AA) had also been involved in the process of such disposal. The remnants of the RDX were taken from his godown, and thrown into the Kaman river. Being in possession of the said material for a limited time period, renders him guilty for commission of the offence under Section 5 TADA. He is also guilty under Section 201 IPC, as even though he may not have been directly involved in the disposal of the contraband, the same was disposed of upon his instructions, and for this, he had paid a huge amount. The said material had been brought into India at the Shekhadi landing by Tiger Memon (AA), and had been stored in his godown at Kashimira. Therefore, we see no reason to interfere with the order passed by the learned Special judge, and the appeal is accordingly, dismissed. (Para 173)
JUDGEMENT:
Judgment (Contd.)
152. This appeal has been preferred against the judgments and orders dated 23.11.2006 and 5.6.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1/1993.
153. Facts and circumstances giving rise to this appeal are that :
In addition to the main charge of conspiracy, he has also been charged under Section 3(3) TADA, for permitting the co-accused Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates, to store the contraband/explosive material/RDX in his godown between the 2nd and 9th of February, 1993, and has further been charged under Section 5 TADA, for possession thereof. He has also been charged under the provisions of Section 6 of the Explosive Substances Act, and the Explosives Rules, 1983 for storing and concealing 58 bags of RDX explosive that had been smuggled into the country by the co-accused, between the 2nd and 9th of February, 1993.
154. The appellant has been convicted under Section 5 TADA and has been awarded a punishment of 5 years alongwith a fine of Rs.1,00,000/- , and in default of payment of fine, to further undergo 3 years RI, and also under Section 201 IPC has been awarded a punishment of 5 years, alongwith a fine of Rs.50,000/-, and in default of payment of fine to suffer further RI for one year. However, both the sentences have been directed to run concurrently.
Hence, this appeal.
155. Shri Shree Prakash Sinha, learned counsel appearing for the appellant, has submitted that the conviction of the appellant which is based on the confession of the appellant, is not sustainable for the reason that the confession itself has revealed, that the appellant had refused to record any confession at the initial stages of recording his confession. The same is evident from the confessional statement itself, and Shri Sanjay Pandey, DCP (PW-429), in light of this, ought not to have recorded his confessional statement at all. The recoveries made at the behest of the appellant cannot be relied upon, as the same do not connect the appellant with the same in any manner. Furthermore, the recovery has not been made in accordance with law, for the simple reason that the disclosure statement of the appellant, which was recorded under Section 27 of Evidence Act was made simultaneously. The same is shown to have been made at the time, when the appellant had been present before the learned Designated Court, held at the Mahim Police Station itself. While considering his application for remand, no satisfactory explanation could be furnished by the prosecution as regards how remand proceedings, and the recording of the disclosure statement of the appellant could take place together. The evidence suffers from material contradictions, and thus, ought to have been rejected. Therefore, the appeal deserves to be allowed.
156. Shri Mukul Gupta, learned senior counsel appearing for the State, has vehemently opposed the appeal contending that all proceedings had been conducted strictly in accordance with law. Undoubtedly, the confessional statement suggests, that appellant had refused to make a confessional statement. However, upon a cogent reading of the said statement, the impression created by the learned counsel for the appellant stands completely dispelled. The conviction of the appellant is based upon a correct appreciation of the evidence available. Thus, the appeal lacks merit and is liable to be dismissed.
157. We have considered the rival submissions made by the learned counsel for the parties, and perused the record.
158. Evidence against the appellant (A-50):
(a) Confessional statement of the appellant (A-50)
(b) Confessional statement of Shakeel Shahabuddin Shaikh (A-59)
(c) Confessional statement of Munna (A-24)
(d) Deposition of Upendra G. Patel (PW-33)
(e) Deposition of Wilson John Britto (PW-274)
(f) Deposition of Ajit Pratap Singh (PW-291)
(g) Deposition of Fazal Akbar Khan (PW-468)
(h) Deposition of Prakash Dhanaji Khanvilkar (PW-513)
(i) Deposition of Kailas Baburao Dawkhar (PW-518)
(j) Deposition of Dattatray Maruti Wayal (PW-521)
159. Confession of Noor Mohammed Haji Mohammed Khan (A-50):
The confession of appellant (A-50) was recorded on 14th/16th May, 1993. The appellant had been 32 years of age at the time of the said incident. The relevant part of his confession suggests that he had acquired land at Kashimira, measuring 1200 sq.mtrs. He (A-50) had known the co-accused Mohammad Jindran (now dead) and Yeda Yakub (AA). The said plot was taken care of by a watchman who had been appointed by him. The said watchman had been removed by the appellant (A-50) on the basis of certain complaints regarding his behaviour with a local girl, and another watchman had thereafter, been appointed. When he (A- 50) had visited the said plot in the last week of February, 1992, he had seen some sacks lying in the shed constructed thereon. The watchman had told him that the said goods had been sent by Mohammad 15/20 days ago, through Shakeel (A-59 – acquitted), the driver of Mohammad, by way of a tempo. The appellant (A-50) had not made any further enquiry as regards the same from the watchman, or from Mohammad, with respect to the contents thereof. When he had visited the place for the second time, he had removed the contents, and had seen what looked like black soap. He had then returned to Bombay, and had asked Mohammad about the goods. Mohammed and Shakeel had denied having any information as regards the said goods. He (A-50) had again visited the site on 16th/17th March, 1993 at Kashimira alongwith Rashid Khan, a businessman who dealt in chemicals, and had taken out the packet. Rashid Khan, after examining the contents of the packet thereof, had told him that the same was explosive material. Rashid Khan had taken the packet with him, and had subsequently informed him that the same most certainly contained material for making bombs. By this time, certain material had been seized in Mumbra and due publicity had been given to the same in the newspapers. It had been revealed that the material belonged to Yeda Yakub. The appellant (A-50) had then asked Rashid Khan to help him to destroy the material. Rashid Khan had told him that he knew one Munna, who could help them to destroy the same. The appellant (A-50) had then decided to spend a sum of Rs.5 lakhs, for the purpose of destroying the material as he had apprehensions regarding the incident of recovery of the same material in Mumbra. They had met Munna at the Lion Pencil Resort at Nangla. Munna had been assigned the job of distribution of the material, and the appellant was informed in the evening, that the said work had been completed. The appellant had gone to Bombay and had given a Toyota Corolla car to Rashid Khan, in lieu of payment of a sum of Rs. 3 lacs, and the remaining amount had been paid by Mohammad. After 3-4 days, he had gone to the site with Shakeel, and the watchman had told him that some of the material had been left behind. He had then put the remaining material in a jeep, had gone with Shakeel, and Shakeel had then thrown the same along Kashimira Highway, from a bridge at a distance of about 6 Kms. from Kashimira. As some of the said material had fallen down outside of the water channel, the appellant had gone down with the jeep, and had thrown the sacks containing left over material into water and had then driven back to Bombay. It was on 8th April that Munna had telephoned the appellant (A- 50) demanding the balance amount of Rs.2 lacs that had been promised to him stating that, otherwise he (A-50) would face dire consequences. The appellant had then informed Mohammad, who had subsequently informed the police, and they had thus gotten Munna arrested. After some interrogation, the appellant (A-50) had also been arrested. He (A-50) has further stated that he had not known that the material was actually RDX. Once he had become aware of the same, he had thrown the same into the water, apprehending his arrest by the police. The remaining material had been thrown off the bridge along the Kashimira Highway. He (A-50) had himself taken the police to the said place and had gotten the material recovered from there. The appellant (A-50) had also made retraction of his confession on 14th/16th May, 1993, at a belated stage.
160. Confessional statement of Shakeel Shahabuddin Shaikh (A- 59):
According to his confessional statement, he had been working as the driver of Mohammad Jindran (AA). He had been told in the second week of February, 1993 by his employer, that a tempo was parked at Dahisar Checknaka, near the Delhi Darbar Hotel, that contained sacks of cement and that he must unload the same onto a plot that belonged to Noor Khan (A-50), who was a friend of his employers, i.e. of Mohammad Jindrans. A letter had been given to him, so that the driver of the tempo would permit Shakeel to unload the contents of the said tempo onto the land belonged to Noor Khan (A-50). Shakeel had thus gone there, and had contacted the driver of the parked tempo. He (A-59) had then taken the said tempo and had off loaded the contents of same onto the land of Noor Khan (A-50). There had been about 1200 to 1300 sacks, and also some square type boxes, that were wrapped and had been kept alongwith the said sacks. The same were also unloaded. He (A-59) had telephoned his employer after doing so, and had informed him that the work had been done. The sacks and the boxes had been unloaded at the Noor Khans place. He (A-59) had accompanied Noor Khan to the site, and had asked the watchman there who were the owner of the material kept in his godown, and it was then that he was told that the same belonged to Mohammad Jindran, and that Shakeel had brought the material there. Then, Shakeel had told him that he had done so upon the instructions of Mohammad Jindran. Fifteen days after Eid, Noor Khan (A-50) had gone to the office of Mohammad Jindran, and had asked him about the material kept at his place and had said that he wanted his help to throw it away. Shakeel had been asked by his employer to accompany them. They had gone in a jeep to the Dahisar godown of Noor Khan. There was some waste material in black colour which was filled into a sack by them. Some bags were also kept alongwith the said black coloured waste material. The sack had been loaded by the watchman into the vehicle, and Shakeel, alongwith Noor Khan (A-50) had proceeded from there. After driving for about 10 Kms., their vehicle had been stopped upon the instructions of Noor Khan (A-50) near a bridge, and Shakeel had been asked to throw the sacks. After throwing the same off the bridge, they had left the place. However, after driving for about 1 Km., Noor Khan (A-50) had asked Shakeel where he had thrown the sacks. He was then informed, that the same had been thrown near the water. Noor Khan (A-50) had then instructed him to take the vehicle back, and after reaching the bridge Noor Khan (A-50) had himself gotten off from the vehicle and had gone under the bridge, lifted the sack, and thrown the same into the water. Noor Khan (A-50) had gone with Shakeel in the said vehicle, to his residence at Mira Road. After their arrest, Shakeel was the only person who had known that the material thrown by him actually consisted of explosives.
161. Confessional statement of Munna @ Mohammad Ali @ Manoj Kumar Bhanwar Lal (A-24):
He had been 26 years of age at the time of the said incident, and has confessed that he had started a hawala business with Eijaz Pathan, who lived in Dubai and that he also had a house in Bombay. Munna (A-24) had developed a close acquaintance with Eijaz Pathan, who belonged to the Kareem Lala Group, and had thus succeeded in committing the murder of Majeed in 1986, and had thereafter, remained absconding for a long time. Subsequently, he (A-24) had been arrested and enlarged on bail. There had been an attempt to kill him, after he was released on bail. He (A-24) had been introduced to Tiger Memon (AA) in 1987, while participating in the unloading of silver at Shekhadi, Shrivardhan. His confession has further revealed that contraband had in fact, been brought into India by Tiger Memon. He had also been instructed by Eijaz from Dubai, to not tell anybody about the smuggling. In the 3rd week of March, 1993 while he had been staying in Marol, Noor Khan (A-50) and Mohammad Jindran had come to meet him and had said that some packets of RDX were lying in the godown and that the same had to be destroyed. Rashid had told him that for removing the said packets, he had taken a sum of Rs.5 lakhs. Rashid had taken him the next day to the Ghodbunder hotel and there he had met Noor Khan (A-50) and Mohammad Jindran, who had already reached there. They had arranged for a dumper from the Sarpanch of the village Anand Dighe. The material had then been loaded therein, and had been thrown into the sea. He had thrown about 55 packets of RDX into Nagla Bandar. Rashid had given him a sum of Rs.10,000/-. He had subsequently reached the Dawat hotel, to receive a sum of Rs.20,000/- from Noor Khan. However, he had been arrested by the police here.
162. Deposition of Fazal Akbar Khan (PW-468):
He had known Rashid and Noor Khan (A-50) for the past 15 years. He had been introduced to Munna (A-24), by Rashid in the third week of March, 1993. Noor Khan (A-50) had come to his residence, and had asked him to take him to Rashid. They had gone to the residence of Rashid at Dreamland Society. Noor Khan (A-50) had told Rashid that somebody had kept some chemicals or something at his place in Dahisar, and that he wanted his help to destroy the same. The witness, Rashid and Noor Khan had travelled in the car of Noor Khan, to the said place at Dahisar. Here, they had seen 50-60 gunny bags lying in the shed. Rashid had opened one of the gunny bags, and had found that the same contained a black coloured powder. They had then moved to Ghodbunder with one such packet. After reaching there, Rashid had examined the packet, they had collected from Dahisar. However, Rashid had been unable to determine what it was. They had thus returned to the place of Rashid. Then, Noor Khan had asked Rashid to help him to dispose of the said material. Rashid had asked Noor Khan to come to him the next day. All of them had then left the said place. The witness was called by Rashid the next day, to his residence at 10.30 a.m. Noor Khan had also been present there. One other person had also been present there, who was introduced to the witness as Mohammad Jindran. They talked about the disposal of the said material, and subsequently left the said place, asking Rashid to meet at Ghodbunder the next day in the morning. Munna (A-24) was also present there. The witness had stayed in the house of Rashid. He had gone alongwith Rashid and Munna to Ghodbunder and had found Noor Khan (A-50) and Mohammad Jindran there. Noor Khan (A-50) had given a packet containing some money to Rashid. Noor Khan (A-50) and Mohammad Jindran had stayed in a room of the hotel, while Rashid and Munna had left the said room. After 10-15 days, Rashid had called the witness from Behrin, and had said that the sacks which had been disposed of contained RDX, and that the witness must not disclose this fact to anybody, or else he would be killed, alongwith all his family members. The witness had then become very scared, owing to the threat that had given to him. The witness has also identified Noor Khan (A-50) in court.
163. Deposition of Upendra G. Patel (PW-33):
He is a recovery witness. He has deposed that in all, a total of three bags had been seized on 18.4.1993. Two bags had been empty. The third bag had contained some black pieces, of which one piece had been taken out and separately packed. At the said time, only one piece had thus been taken out of the bag. The same was weighed and packed in plastic wrap, after which, it was also wrapped in a piece of paper, in the form of a paper bag. The said paper bag had been picked up from a nearby place, under the bridge. His (PW-33) signature had not been on the paper bag in which the black substance had been kept. The paper bag had not been sealed. In court, he had been unable to say whether the paper in which the blackish lump was wrapped, was the same paper bag in which it had been kept, when the sample had initially drawn at the time of seizure of the goods by the Police.
164. Deposition of Wilson John Britto (PW-274):
He has deposed that he knew Rashid because on one occasion, he had gone to his hotel for a meal. On 23.3.1993, Rashid asked for a room. He had spoken to the senior steward, Ajit Roop Singh from his hotel. He had then telephoned the Juhu Office and had talked with his boss Shri Sunil Naik. The witness had informed Nayak over the phone that one Rashid had come to the said hotel and that he had requested a room. After asking his boss, he and Ajit Roop Singh had given Room No. 1-A to Rashid. Rashid had paid Rs.300/- to the witness, as a tip. He had not heard any conversation that had ensued between Rashid and his companions during the period in which, they were at the hotel. He knew the names of the three companions of the Rashid. This witness could not identify the appellant (A-50) in court (after a period of 5 years).
165. Deposition of Prakash Dhanaji Khanvilkar (PW.513):
During the said interrogation of the appellant (A-50), he had expressed his desire to make a voluntary statement. The witness had thus secured two panch witnesses, and it was in their presence that the appellant (A-50) had made a disclosure statement in Hindi. The same had been recorded after drawing the memorandum panchanama. As the appellant (A-50) had expressed his willingness to take him to a place for recovery, the witness had also decided to accompany the appellant (A-50) to the particular place, that he wished to point out. Thus, he had gone alongwith the panch witnesses, police officials and the appellant, in a police jeep. In his cross-examination, he has made it clear that on the said day, he had reached the detection room at 1.00 p.m. and that the appellant (A-50) had been with him from 1.00 p.m. to 6.15 p.m. The panch witnesses had been called at about 3.50 p.m. He has expressed his ignorance as regards whether on the said day, some Judge had come and conducted remand proceedings at the Mahim Police Station between 1.00 p.m. and 3.15 p.m. His deposition has further revealed that he had left the police station with the appellant, and other persons at about 4.15 p.m. and had returned to the Mahim Police Station alongwith his team, the accused and the panch witnesses at about 7.15 p.m. The bridge on the Kaman river from where the recovery was made, was at a distance of about 35-40 Kms. from the Mahim Police Station. He has denied the suggestion that the appellant (A-50) had not in fact made any disclosure statement when he had been taken to the bridge on the Kaman river etc.
166. Deposition of Ajit Pratap Singh (PW.291):
He was 26 years of age and had been carrying on the business of painting houses. At the relevant time, in the year 1993, he had been working as a waiter in a farm house named, Royal Retreat which was situated at Kaju Pada on Ghodbunder road, district Thane. One Shri Kailash Jain, alongwith others had owned the said farm house. Alongwith him, one Shri Wilson Britto (PW-274) had been working there as an assistant. He had worked in the hotel upto 1994. He had known a person by the name of Rashid, son of Lala Seth, who had been carrying on the business of dealing in chemicals near the said farm house. Rashid had been coming to the said hotel alongwith his friends and family members, for meals and also to swim. On 23.3.1993, at about 1.30 p.m. while he had been present at the said hotel, Rashid had come there alongwith 3-4 friends in a car, and had asked the witness to open room No. 1-A for them, and thus, he had opened the said room. Rashid had stayed in the said room alongwith his friends, and he had served them lunch. While serving them, he had heard Rashid telling the others that the goods which had been kept in the godown of the appellant (A-50), were to be thrown at the earliest into the Nagla creek, by taking the same in the vehicle of Anya Patil, as an investigation by the police was in progress. Rashid had noticed the presence of the witness, and had immediately asked him to leave the room and to close the door. In court, the witness expressed his inability to identify any of these friends, who had been present on that day in the hotel, except Rashid and Munna (A-24) as the deposition had taken place after a period of five years.
167. Deposition of Dattatray Maruti Wayal (PW.521):
He was one of the investigating officers of the case who had taken up the investigation on 5.5.1993 of C.R. No. 14/93 in the Kapurbawdi Police Station. He has deposed that during the investigation, he had recorded the statement of about 35 witnesses, including one Shri Narayan Sitaram Patil (PW-295). He had also come to know, that the land from where the recovery had been made, had been purchased by the appellant (A-50) in the past, and that he had allowed the construction of a godown therein. The appellant (A-50) had been keeping goats in the said godown, and for such purpose, he had kept a Gorkha watchman named Pratap Singh to look after the said goats. The appellant would visit the said godown.
168. Deposition of Kailas Baburao Dawkhar (PW.518):
He is a formal witness and he has recorded the statements of Wilson John Britto (PW-274) and Ajit Singh Pratap Singh (PW-291), who had been working as waiters in the resort where the meeting of accused persons had taken place, in connection with disposing of the explosive material by dumping the same into the Nagla creek. Thus, he has proved the statement of the witnesses that have been recorded.
169. The evidence referred to hereinabove, regarding the ownership and possession of the godown, the dumping of the contraband in the said godown, and the removal and final disposal of the same by throwing it into the Nagla creek, stands fully corroborated by the evidence of the aforesaid witnesses. The said contraband had been destroyed in two installments; one at the Nagla creek, and another at the bridge on the Kaman river. The evidence of the witnesses corroborates the case of the prosecution in entirety. Thus, the case stands proved.
170. We do not find any force in the submissions made by Mr. Sinha, learned counsel appearing for the appellant, to the effect that as the recovery memo did not contain signature of the appellant, the same cannot be relied upon, even though, to fortify such submission, he has placed very heavy reliance upon the judgment of this Court in Jackaran Singh v. State of Punjab, [AIR 1995 SC 2345], wherein it has been held that the absence of signatures or thumb impressions of the accused upon their disclosure statements, may render the said statements unreliable, particularly, in a case where the panch witness has not been examined at a trial, to testify the authenticity of the same. The judgment relied upon by Shri Sinha is easily distinguishable, as in the said case none of the panch witnesses had been examined, while in the instant case, the panch witness has been examined.
171. In State of Rajasthan v. Teja Ram & Ors., [JT 1999 (2) SC 279] , this Court while dealing with the issue held:
The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure memo would vitiate the evidence regarding recovery of the axes.
172. After appreciating the evidence on record, the learned Designated Court came to the conclusion that the appellant had been in the unauthorised possession of 58 bags of RDX material within the notified area, and that he had indulged, alongwith the other co- accused conspirators, in the disposal of the said RDX material by dumping the same into the Nagla creek and the Kaman river. However, the Designated Court has further held, that no nexus could be established between the appellant (A-50) and Tiger Memon (AA). Additionally, the Designated Court has stated that there was also no nexus found between the offences committed in pursuance of the conspiracy as was hatched by Tiger Memon (AA), and the acts of the appellant (A-50).
173. This conclusion stands fortified from the confessional statement of the appellant, as well as from the statements of the other witnesses. The appellant was most certainly had close association with Mohammad Jindran (AA), Rashid and with a few other accused persons. The appellant had spent about Rs.5 lakhs for the disposal of the said material. Rashid, a very close associate of Tiger Memon (AA) had also been involved in the process of such disposal. The remnants of the RDX were taken from his godown, and thrown into the Kaman river. Being in possession of the said material for a limited time period, renders him guilty for commission of the offence under Section 5 TADA. He is also guilty under Section 201 IPC, as even though he may not have been directly involved in the disposal of the contraband, the same was disposed of upon his instructions, and for this, he had paid a huge amount. The said material had been brought into India at the Shekhadi landing by Tiger Memon (AA), and had been stored in his godown at Kashimira. Therefore, we see no reason to interfere with the order passed by the learned Special judge, and the appeal is accordingly, dismissed.
***************
152. This appeal has been preferred against the judgments and orders dated 23.11.2006 and 5.6.2007, passed by a Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1/1993.
153. Facts and circumstances giving rise to this appeal are that :
In addition to the main charge of conspiracy, he has also been charged under Section 3(3) TADA, for permitting the co-accused Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates, to store the contraband/explosive material/RDX in his godown between the 2nd and 9th of February, 1993, and has further been charged under Section 5 TADA, for possession thereof. He has also been charged under the provisions of Section 6 of the Explosive Substances Act, and the Explosives Rules, 1983 for storing and concealing 58 bags of RDX explosive that had been smuggled into the country by the co-accused, between the 2nd and 9th of February, 1993.
154. The appellant has been convicted under Section 5 TADA and has been awarded a punishment of 5 years alongwith a fine of Rs.1,00,000/- , and in default of payment of fine, to further undergo 3 years RI, and also under Section 201 IPC has been awarded a punishment of 5 years, alongwith a fine of Rs.50,000/-, and in default of payment of fine to suffer further RI for one year. However, both the sentences have been directed to run concurrently.
Hence, this appeal.
155. Shri Shree Prakash Sinha, learned counsel appearing for the appellant, has submitted that the conviction of the appellant which is based on the confession of the appellant, is not sustainable for the reason that the confession itself has revealed, that the appellant had refused to record any confession at the initial stages of recording his confession. The same is evident from the confessional statement itself, and Shri Sanjay Pandey, DCP (PW-429), in light of this, ought not to have recorded his confessional statement at all. The recoveries made at the behest of the appellant cannot be relied upon, as the same do not connect the appellant with the same in any manner. Furthermore, the recovery has not been made in accordance with law, for the simple reason that the disclosure statement of the appellant, which was recorded under Section 27 of Evidence Act was made simultaneously. The same is shown to have been made at the time, when the appellant had been present before the learned Designated Court, held at the Mahim Police Station itself. While considering his application for remand, no satisfactory explanation could be furnished by the prosecution as regards how remand proceedings, and the recording of the disclosure statement of the appellant could take place together. The evidence suffers from material contradictions, and thus, ought to have been rejected. Therefore, the appeal deserves to be allowed.
156. Shri Mukul Gupta, learned senior counsel appearing for the State, has vehemently opposed the appeal contending that all proceedings had been conducted strictly in accordance with law. Undoubtedly, the confessional statement suggests, that appellant had refused to make a confessional statement. However, upon a cogent reading of the said statement, the impression created by the learned counsel for the appellant stands completely dispelled. The conviction of the appellant is based upon a correct appreciation of the evidence available. Thus, the appeal lacks merit and is liable to be dismissed.
157. We have considered the rival submissions made by the learned counsel for the parties, and perused the record.
158. Evidence against the appellant (A-50):
(a) Confessional statement of the appellant (A-50)
(b) Confessional statement of Shakeel Shahabuddin Shaikh (A-59)
(c) Confessional statement of Munna (A-24)
(d) Deposition of Upendra G. Patel (PW-33)
(e) Deposition of Wilson John Britto (PW-274)
(f) Deposition of Ajit Pratap Singh (PW-291)
(g) Deposition of Fazal Akbar Khan (PW-468)
(h) Deposition of Prakash Dhanaji Khanvilkar (PW-513)
(i) Deposition of Kailas Baburao Dawkhar (PW-518)
(j) Deposition of Dattatray Maruti Wayal (PW-521)
159. Confession of Noor Mohammed Haji Mohammed Khan (A-50):
The confession of appellant (A-50) was recorded on 14th/16th May, 1993. The appellant had been 32 years of age at the time of the said incident. The relevant part of his confession suggests that he had acquired land at Kashimira, measuring 1200 sq.mtrs. He (A-50) had known the co-accused Mohammad Jindran (now dead) and Yeda Yakub (AA). The said plot was taken care of by a watchman who had been appointed by him. The said watchman had been removed by the appellant (A-50) on the basis of certain complaints regarding his behaviour with a local girl, and another watchman had thereafter, been appointed. When he (A- 50) had visited the said plot in the last week of February, 1992, he had seen some sacks lying in the shed constructed thereon. The watchman had told him that the said goods had been sent by Mohammad 15/20 days ago, through Shakeel (A-59 – acquitted), the driver of Mohammad, by way of a tempo. The appellant (A-50) had not made any further enquiry as regards the same from the watchman, or from Mohammad, with respect to the contents thereof. When he had visited the place for the second time, he had removed the contents, and had seen what looked like black soap. He had then returned to Bombay, and had asked Mohammad about the goods. Mohammed and Shakeel had denied having any information as regards the said goods. He (A-50) had again visited the site on 16th/17th March, 1993 at Kashimira alongwith Rashid Khan, a businessman who dealt in chemicals, and had taken out the packet. Rashid Khan, after examining the contents of the packet thereof, had told him that the same was explosive material. Rashid Khan had taken the packet with him, and had subsequently informed him that the same most certainly contained material for making bombs. By this time, certain material had been seized in Mumbra and due publicity had been given to the same in the newspapers. It had been revealed that the material belonged to Yeda Yakub. The appellant (A-50) had then asked Rashid Khan to help him to destroy the material. Rashid Khan had told him that he knew one Munna, who could help them to destroy the same. The appellant (A-50) had then decided to spend a sum of Rs.5 lakhs, for the purpose of destroying the material as he had apprehensions regarding the incident of recovery of the same material in Mumbra. They had met Munna at the Lion Pencil Resort at Nangla. Munna had been assigned the job of distribution of the material, and the appellant was informed in the evening, that the said work had been completed. The appellant had gone to Bombay and had given a Toyota Corolla car to Rashid Khan, in lieu of payment of a sum of Rs. 3 lacs, and the remaining amount had been paid by Mohammad. After 3-4 days, he had gone to the site with Shakeel, and the watchman had told him that some of the material had been left behind. He had then put the remaining material in a jeep, had gone with Shakeel, and Shakeel had then thrown the same along Kashimira Highway, from a bridge at a distance of about 6 Kms. from Kashimira. As some of the said material had fallen down outside of the water channel, the appellant had gone down with the jeep, and had thrown the sacks containing left over material into water and had then driven back to Bombay. It was on 8th April that Munna had telephoned the appellant (A- 50) demanding the balance amount of Rs.2 lacs that had been promised to him stating that, otherwise he (A-50) would face dire consequences. The appellant had then informed Mohammad, who had subsequently informed the police, and they had thus gotten Munna arrested. After some interrogation, the appellant (A-50) had also been arrested. He (A-50) has further stated that he had not known that the material was actually RDX. Once he had become aware of the same, he had thrown the same into the water, apprehending his arrest by the police. The remaining material had been thrown off the bridge along the Kashimira Highway. He (A-50) had himself taken the police to the said place and had gotten the material recovered from there. The appellant (A-50) had also made retraction of his confession on 14th/16th May, 1993, at a belated stage.
160. Confessional statement of Shakeel Shahabuddin Shaikh (A- 59):
According to his confessional statement, he had been working as the driver of Mohammad Jindran (AA). He had been told in the second week of February, 1993 by his employer, that a tempo was parked at Dahisar Checknaka, near the Delhi Darbar Hotel, that contained sacks of cement and that he must unload the same onto a plot that belonged to Noor Khan (A-50), who was a friend of his employers, i.e. of Mohammad Jindrans. A letter had been given to him, so that the driver of the tempo would permit Shakeel to unload the contents of the said tempo onto the land belonged to Noor Khan (A-50). Shakeel had thus gone there, and had contacted the driver of the parked tempo. He (A-59) had then taken the said tempo and had off loaded the contents of same onto the land of Noor Khan (A-50). There had been about 1200 to 1300 sacks, and also some square type boxes, that were wrapped and had been kept alongwith the said sacks. The same were also unloaded. He (A-59) had telephoned his employer after doing so, and had informed him that the work had been done. The sacks and the boxes had been unloaded at the Noor Khans place. He (A-59) had accompanied Noor Khan to the site, and had asked the watchman there who were the owner of the material kept in his godown, and it was then that he was told that the same belonged to Mohammad Jindran, and that Shakeel had brought the material there. Then, Shakeel had told him that he had done so upon the instructions of Mohammad Jindran. Fifteen days after Eid, Noor Khan (A-50) had gone to the office of Mohammad Jindran, and had asked him about the material kept at his place and had said that he wanted his help to throw it away. Shakeel had been asked by his employer to accompany them. They had gone in a jeep to the Dahisar godown of Noor Khan. There was some waste material in black colour which was filled into a sack by them. Some bags were also kept alongwith the said black coloured waste material. The sack had been loaded by the watchman into the vehicle, and Shakeel, alongwith Noor Khan (A-50) had proceeded from there. After driving for about 10 Kms., their vehicle had been stopped upon the instructions of Noor Khan (A-50) near a bridge, and Shakeel had been asked to throw the sacks. After throwing the same off the bridge, they had left the place. However, after driving for about 1 Km., Noor Khan (A-50) had asked Shakeel where he had thrown the sacks. He was then informed, that the same had been thrown near the water. Noor Khan (A-50) had then instructed him to take the vehicle back, and after reaching the bridge Noor Khan (A-50) had himself gotten off from the vehicle and had gone under the bridge, lifted the sack, and thrown the same into the water. Noor Khan (A-50) had gone with Shakeel in the said vehicle, to his residence at Mira Road. After their arrest, Shakeel was the only person who had known that the material thrown by him actually consisted of explosives.
161. Confessional statement of Munna @ Mohammad Ali @ Manoj Kumar Bhanwar Lal (A-24):
He had been 26 years of age at the time of the said incident, and has confessed that he had started a hawala business with Eijaz Pathan, who lived in Dubai and that he also had a house in Bombay. Munna (A-24) had developed a close acquaintance with Eijaz Pathan, who belonged to the Kareem Lala Group, and had thus succeeded in committing the murder of Majeed in 1986, and had thereafter, remained absconding for a long time. Subsequently, he (A-24) had been arrested and enlarged on bail. There had been an attempt to kill him, after he was released on bail. He (A-24) had been introduced to Tiger Memon (AA) in 1987, while participating in the unloading of silver at Shekhadi, Shrivardhan. His confession has further revealed that contraband had in fact, been brought into India by Tiger Memon. He had also been instructed by Eijaz from Dubai, to not tell anybody about the smuggling. In the 3rd week of March, 1993 while he had been staying in Marol, Noor Khan (A-50) and Mohammad Jindran had come to meet him and had said that some packets of RDX were lying in the godown and that the same had to be destroyed. Rashid had told him that for removing the said packets, he had taken a sum of Rs.5 lakhs. Rashid had taken him the next day to the Ghodbunder hotel and there he had met Noor Khan (A-50) and Mohammad Jindran, who had already reached there. They had arranged for a dumper from the Sarpanch of the village Anand Dighe. The material had then been loaded therein, and had been thrown into the sea. He had thrown about 55 packets of RDX into Nagla Bandar. Rashid had given him a sum of Rs.10,000/-. He had subsequently reached the Dawat hotel, to receive a sum of Rs.20,000/- from Noor Khan. However, he had been arrested by the police here.
162. Deposition of Fazal Akbar Khan (PW-468):
He had known Rashid and Noor Khan (A-50) for the past 15 years. He had been introduced to Munna (A-24), by Rashid in the third week of March, 1993. Noor Khan (A-50) had come to his residence, and had asked him to take him to Rashid. They had gone to the residence of Rashid at Dreamland Society. Noor Khan (A-50) had told Rashid that somebody had kept some chemicals or something at his place in Dahisar, and that he wanted his help to destroy the same. The witness, Rashid and Noor Khan had travelled in the car of Noor Khan, to the said place at Dahisar. Here, they had seen 50-60 gunny bags lying in the shed. Rashid had opened one of the gunny bags, and had found that the same contained a black coloured powder. They had then moved to Ghodbunder with one such packet. After reaching there, Rashid had examined the packet, they had collected from Dahisar. However, Rashid had been unable to determine what it was. They had thus returned to the place of Rashid. Then, Noor Khan had asked Rashid to help him to dispose of the said material. Rashid had asked Noor Khan to come to him the next day. All of them had then left the said place. The witness was called by Rashid the next day, to his residence at 10.30 a.m. Noor Khan had also been present there. One other person had also been present there, who was introduced to the witness as Mohammad Jindran. They talked about the disposal of the said material, and subsequently left the said place, asking Rashid to meet at Ghodbunder the next day in the morning. Munna (A-24) was also present there. The witness had stayed in the house of Rashid. He had gone alongwith Rashid and Munna to Ghodbunder and had found Noor Khan (A-50) and Mohammad Jindran there. Noor Khan (A-50) had given a packet containing some money to Rashid. Noor Khan (A-50) and Mohammad Jindran had stayed in a room of the hotel, while Rashid and Munna had left the said room. After 10-15 days, Rashid had called the witness from Behrin, and had said that the sacks which had been disposed of contained RDX, and that the witness must not disclose this fact to anybody, or else he would be killed, alongwith all his family members. The witness had then become very scared, owing to the threat that had given to him. The witness has also identified Noor Khan (A-50) in court.
163. Deposition of Upendra G. Patel (PW-33):
He is a recovery witness. He has deposed that in all, a total of three bags had been seized on 18.4.1993. Two bags had been empty. The third bag had contained some black pieces, of which one piece had been taken out and separately packed. At the said time, only one piece had thus been taken out of the bag. The same was weighed and packed in plastic wrap, after which, it was also wrapped in a piece of paper, in the form of a paper bag. The said paper bag had been picked up from a nearby place, under the bridge. His (PW-33) signature had not been on the paper bag in which the black substance had been kept. The paper bag had not been sealed. In court, he had been unable to say whether the paper in which the blackish lump was wrapped, was the same paper bag in which it had been kept, when the sample had initially drawn at the time of seizure of the goods by the Police.
164. Deposition of Wilson John Britto (PW-274):
He has deposed that he knew Rashid because on one occasion, he had gone to his hotel for a meal. On 23.3.1993, Rashid asked for a room. He had spoken to the senior steward, Ajit Roop Singh from his hotel. He had then telephoned the Juhu Office and had talked with his boss Shri Sunil Naik. The witness had informed Nayak over the phone that one Rashid had come to the said hotel and that he had requested a room. After asking his boss, he and Ajit Roop Singh had given Room No. 1-A to Rashid. Rashid had paid Rs.300/- to the witness, as a tip. He had not heard any conversation that had ensued between Rashid and his companions during the period in which, they were at the hotel. He knew the names of the three companions of the Rashid. This witness could not identify the appellant (A-50) in court (after a period of 5 years).
165. Deposition of Prakash Dhanaji Khanvilkar (PW.513):
During the said interrogation of the appellant (A-50), he had expressed his desire to make a voluntary statement. The witness had thus secured two panch witnesses, and it was in their presence that the appellant (A-50) had made a disclosure statement in Hindi. The same had been recorded after drawing the memorandum panchanama. As the appellant (A-50) had expressed his willingness to take him to a place for recovery, the witness had also decided to accompany the appellant (A-50) to the particular place, that he wished to point out. Thus, he had gone alongwith the panch witnesses, police officials and the appellant, in a police jeep. In his cross-examination, he has made it clear that on the said day, he had reached the detection room at 1.00 p.m. and that the appellant (A-50) had been with him from 1.00 p.m. to 6.15 p.m. The panch witnesses had been called at about 3.50 p.m. He has expressed his ignorance as regards whether on the said day, some Judge had come and conducted remand proceedings at the Mahim Police Station between 1.00 p.m. and 3.15 p.m. His deposition has further revealed that he had left the police station with the appellant, and other persons at about 4.15 p.m. and had returned to the Mahim Police Station alongwith his team, the accused and the panch witnesses at about 7.15 p.m. The bridge on the Kaman river from where the recovery was made, was at a distance of about 35-40 Kms. from the Mahim Police Station. He has denied the suggestion that the appellant (A-50) had not in fact made any disclosure statement when he had been taken to the bridge on the Kaman river etc.
166. Deposition of Ajit Pratap Singh (PW.291):
He was 26 years of age and had been carrying on the business of painting houses. At the relevant time, in the year 1993, he had been working as a waiter in a farm house named, Royal Retreat which was situated at Kaju Pada on Ghodbunder road, district Thane. One Shri Kailash Jain, alongwith others had owned the said farm house. Alongwith him, one Shri Wilson Britto (PW-274) had been working there as an assistant. He had worked in the hotel upto 1994. He had known a person by the name of Rashid, son of Lala Seth, who had been carrying on the business of dealing in chemicals near the said farm house. Rashid had been coming to the said hotel alongwith his friends and family members, for meals and also to swim. On 23.3.1993, at about 1.30 p.m. while he had been present at the said hotel, Rashid had come there alongwith 3-4 friends in a car, and had asked the witness to open room No. 1-A for them, and thus, he had opened the said room. Rashid had stayed in the said room alongwith his friends, and he had served them lunch. While serving them, he had heard Rashid telling the others that the goods which had been kept in the godown of the appellant (A-50), were to be thrown at the earliest into the Nagla creek, by taking the same in the vehicle of Anya Patil, as an investigation by the police was in progress. Rashid had noticed the presence of the witness, and had immediately asked him to leave the room and to close the door. In court, the witness expressed his inability to identify any of these friends, who had been present on that day in the hotel, except Rashid and Munna (A-24) as the deposition had taken place after a period of five years.
167. Deposition of Dattatray Maruti Wayal (PW.521):
He was one of the investigating officers of the case who had taken up the investigation on 5.5.1993 of C.R. No. 14/93 in the Kapurbawdi Police Station. He has deposed that during the investigation, he had recorded the statement of about 35 witnesses, including one Shri Narayan Sitaram Patil (PW-295). He had also come to know, that the land from where the recovery had been made, had been purchased by the appellant (A-50) in the past, and that he had allowed the construction of a godown therein. The appellant (A-50) had been keeping goats in the said godown, and for such purpose, he had kept a Gorkha watchman named Pratap Singh to look after the said goats. The appellant would visit the said godown.
168. Deposition of Kailas Baburao Dawkhar (PW.518):
He is a formal witness and he has recorded the statements of Wilson John Britto (PW-274) and Ajit Singh Pratap Singh (PW-291), who had been working as waiters in the resort where the meeting of accused persons had taken place, in connection with disposing of the explosive material by dumping the same into the Nagla creek. Thus, he has proved the statement of the witnesses that have been recorded.
169. The evidence referred to hereinabove, regarding the ownership and possession of the godown, the dumping of the contraband in the said godown, and the removal and final disposal of the same by throwing it into the Nagla creek, stands fully corroborated by the evidence of the aforesaid witnesses. The said contraband had been destroyed in two installments; one at the Nagla creek, and another at the bridge on the Kaman river. The evidence of the witnesses corroborates the case of the prosecution in entirety. Thus, the case stands proved.
170. We do not find any force in the submissions made by Mr. Sinha, learned counsel appearing for the appellant, to the effect that as the recovery memo did not contain signature of the appellant, the same cannot be relied upon, even though, to fortify such submission, he has placed very heavy reliance upon the judgment of this Court in Jackaran Singh v. State of Punjab, [AIR 1995 SC 2345], wherein it has been held that the absence of signatures or thumb impressions of the accused upon their disclosure statements, may render the said statements unreliable, particularly, in a case where the panch witness has not been examined at a trial, to testify the authenticity of the same. The judgment relied upon by Shri Sinha is easily distinguishable, as in the said case none of the panch witnesses had been examined, while in the instant case, the panch witness has been examined.
171. In State of Rajasthan v. Teja Ram & Ors., [JT 1999 (2) SC 279] , this Court while dealing with the issue held:
The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure memo would vitiate the evidence regarding recovery of the axes.
172. After appreciating the evidence on record, the learned Designated Court came to the conclusion that the appellant had been in the unauthorised possession of 58 bags of RDX material within the notified area, and that he had indulged, alongwith the other co- accused conspirators, in the disposal of the said RDX material by dumping the same into the Nagla creek and the Kaman river. However, the Designated Court has further held, that no nexus could be established between the appellant (A-50) and Tiger Memon (AA). Additionally, the Designated Court has stated that there was also no nexus found between the offences committed in pursuance of the conspiracy as was hatched by Tiger Memon (AA), and the acts of the appellant (A-50).
173. This conclusion stands fortified from the confessional statement of the appellant, as well as from the statements of the other witnesses. The appellant was most certainly had close association with Mohammad Jindran (AA), Rashid and with a few other accused persons. The appellant had spent about Rs.5 lakhs for the disposal of the said material. Rashid, a very close associate of Tiger Memon (AA) had also been involved in the process of such disposal. The remnants of the RDX were taken from his godown, and thrown into the Kaman river. Being in possession of the said material for a limited time period, renders him guilty for commission of the offence under Section 5 TADA. He is also guilty under Section 201 IPC, as even though he may not have been directly involved in the disposal of the contraband, the same was disposed of upon his instructions, and for this, he had paid a huge amount. The said material had been brought into India at the Shekhadi landing by Tiger Memon (AA), and had been stored in his godown at Kashimira. Therefore, we see no reason to interfere with the order passed by the learned Special judge, and the appeal is accordingly, dismissed.
***************
