Ashok Narayan Muneshwar (A-70) Vs. State of Maharashtra through STF, CBI
EmailAppeal: Criminal Appeal No. 171 of 2008
And
Arun Pandari Nath Madhukar Mahadik v. State of Maharashtra through STF, CBI
Criminal Appeal No. 172 of 2008
And
State of Maharashtra v. Ashok Narayan Muneshwar
Criminal Appeal No. 403 of 2011
And
Arun Pandari Nath Madhukar Mahadik v. State of Maharashtra through STF, CBI
Criminal Appeal No. 172 of 2008
And
State of Maharashtra v. Ashok Narayan Muneshwar
Criminal Appeal No. 403 of 2011
Petitioner: Ashok Narayan Muneshwar (A-70)
Respondent: State of Maharashtra through STF, CBI
Apeal: Criminal Appeal No. 171 of 2008
And
Arun Pandari Nath Madhukar Mahadik v. State of Maharashtra through STF, CBI
Criminal Appeal No. 172 of 2008
And
State of Maharashtra v. Ashok Narayan Muneshwar
Criminal Appeal No. 403 of 2011
And
Arun Pandari Nath Madhukar Mahadik v. State of Maharashtra through STF, CBI
Criminal Appeal No. 172 of 2008
And
State of Maharashtra v. Ashok Narayan Muneshwar
Criminal Appeal No. 403 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 – Charges against, appellant-police officials (A70 & A99) – Allegation of facilitating transportation of arms and ammunition, in lieu of illegal gratification – Illegal omission to thoroughly check motor lorries, carrying arms and contraband though intercepted by their team – Confessional statements of A-30, A-14, A-82, A-134, A-136 confirming interception of trucks at Gondghar, presence of police officials and allowing of transportation of goods without proper checking, on taking illegal gratification – Rs. 30,000/- produced by appellant A70 in presence of PWs.109 and 590 – Rs. 59,200/- recovered from house of A-99 – Plea that they were not present when police party intercepted truck and were patrolling in a village – Belied by depositions of villagers (PWs 158 to 162, 166 and 167) – Fact that police jeep was driven by A-99, as reflected in the log book, not disputed by him. Held, though both the appellants were not responsible for taking decision as their head was A-116, they did not inform their superior and took bribe. Hence their involvement is proved. Conviction under Section 3(3) of TADA not interfered with.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Charges against, appellant-police officials (A70 & A99) – Allegation of facilitating transportation of arms and ammunition, in lieu of illegal gratification – Illegal omission to thoroughly check motor lorries, carrying arms and contraband though intercepted by their team – Confessional statements of A-30, A-14, A-82, A-134, A-136 confirming interception of trucks at Gondghar, presence of police officials and allowing of transportation of goods without proper checking, on taking illegal gratification – Rs. 30,000/- produced by appellant A70 in presence of PWs.109 and 590 – Rs. 59,200/- recovered from house of A-99 – Plea that they were not present when police party intercepted truck and were patrolling in a village – Belied by depositions of villagers (PWs 158 to 162, 166 and 167) – Fact that police jeep was driven by A-99, as reflected in the log book, not disputed by him. Held, though both the appellants were not responsible for taking decision as their head was A-116, they did not inform their superior and took bribe. Hence their involvement is proved. Conviction under Section 3(3) of TADA not interfered with.
Criminal Appeal No. 403 of 2011
Section 3(3) – Bombay Blast case – Interception of trucks containing contraband along with silver though differently packed – Omission to inspect properly – Conviction under Section 3(3) of TADA Act – No material to show their involvement in conspiracy – No act beyond their presence/negligence at the time/spot of interception. Held appellants were mere constables and could not permit contraband to be transported without the consent/connivance of their head, A-116. Hence they were rightly convicted under Section 3(3) of TADA.
Appeal against acquittal – Double presumption of innocence – When Court is entitled to interfere. Held interference is needed when there is compelling reason to do so or when the decision results in grave injustice. State of Rajasthan v. Darshan Singh’s case referred. (Para 345)
Held:
The police party of Shrivardhan had intercepted the convoy carrying said contraband near Gondghar Phata. The entry in the log book of the police jeep has revealed that the same had been driven by the appellant (A-99), and this has not been disputed by the appellant (A-99). Hence, it is clear that appellant (A-99) had been driving the said police jeep when the party was headed by Vijay Krishnaji Patil (A-116). Furthermore, it has been held that the confessions of the co- accused and of Dilip Bhiku Pansare (PW-97) clearly reveal the involvement of the appellants in the landing episode. (Para 338)
It has also been held that the appellants had in fact been members of the police party headed by their superior Vijay Krishnaji Patil (A-116), and that though the appellants cannot be held to be responsible for taking the decision to permit the further transportation of said goods, however, taking into account the fact that they had not reported Vijay Krishnaji Patils (A-116) behaviour to higher officials, and further, the recovery of a large amount of money from them, clearly reveals that they had also connived with Vijay Krishnaji Patil (A-116) to commit the said acts. Thus, they are liable under section 3(3) TADA. However, as Vijay Krishnaji Patil (A-116), was primarily responsible for the decision taken by the police party and also for the handling of the negotiations, the appellants cannot be held guilty for commission of the offence of conspiracy, as they were acting in accordance with the instructions and directions of Vijay Krishnaji Patil (A-116). (Para 338.1)
The learned Special Judge has taken a view that as their presence had been established at the place of interception, a case under Section 3(3) TADA can be established as a result of the cumulative effect of the said evidence. There is nothing on record to show their involvement in the conspiracy, or of them having committed any overt acts in the execution of such conspiracy, the question of convicting them for conspiracy does not arise. As their acts do not transcend beyond their presence and their negligence in the interception and checking of the vehicles, they are entitled to the benefit of doubt as far as the conspiracy is concerned. (Para 344)
JUDGEMENT:
Dr. B.S. Chauhan, J.
Criminal Appeal No. 171 & 172 of 2008
322. These appeals have been preferred against the judgments and orders dated 26.9.2006 and 21.5.2007, passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, by which the appellants have been convicted under Section 3(3) TADA.
322.1 They have been acquitted of the first charge of conspiracy, but have been convicted under Section 3(3) TADA and have been sentenced to suffer RI of 6 years alongwith a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for six months. They have already served a sentence of 4 years and 3 months.
323. Facts and circumstances giving rise to these appeals are that:
A. In addition to the first charge of conspiracy, the appellants have been charged for intentionally aiding and abetting terrorists, by allowing them to smuggle and transport arms and ammunition into India for the purpose of committing terrorist acts, by their illegal omission to thoroughly check motor lorries carrying arms, ammunition and other contraband, though the same had been intercepted by their team on the night of 9.1.1993, at Gondghar Phata, and for their failure to seize the aforesaid motor truck and its contents, in lieu of a bribe of Rs. 7 lakhs which had been agreed to and accepted by them, after negotiations with terrorists and their associates. Thus, they have been charged under Section 3(3) TADA.
B. After conclusion of the trial, the learned Designated Court held the appellants guilty and awarded punishment as referred to hereinabove.
Hence, these appeals.
324. Shri P.K. Dey, learned counsel appearing for the appellants, has submitted that sufficient evidence on record does not exist to convict the appellants. In their confessional statements, Uttam Shantaram Potdar (A-30) and Jaywant Keshav Gurav (A-82), have not made any reference to the smuggling of arms and ammunition, in fact, they have spoken of the smuggling of silver. Therefore, the question of framing any charge against the present appellants under TADA, in view of such confessional statements could not arise. Moreover, the memorandum annexed to the confessional statement is a part and parcel of the confession, and the same has to be filled up simultaneously, and not subsequently.
324.1 So far as the confessional statement of Uttam Shantaram Potdar (A-30) is concerned, the said memorandum had been sent subsequently. Thus, the same was in violation of the statutory provisions of TADA and, the TADA Rules, particularly, as the same was not in compliance with the requirements of sections 15(3)(b) and 15(5) of the TADA Rules.
324.2 The said confessional statement required a certificate under Rule 15(4), and such a certificate was not annexed by the officer recording the confessional statements of Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav (A-82) and Salim Kutta (A-134). The confessional statement of Salim Kutta (A-134) was recorded on 19.8.1995, and the same was sent to the CMM on 24.8.1995. Therefore, the same is not valid. It has also been contended that after the recording of the confession on 19.8.1995 at Ahmedabad, Salim Kutta (A-134) had been brought to Bombay by the CBI to the STF office, and that subsequently, he had been taken back to Ahmedabad on 24.8.1995 and that here, he was produced before the CMM Ahmedabad.
325. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has submitted that these two appellants have failed to perform their duty. They had not checked the boxes, they had only counted the bricks in the trucks. The previous amount of bribe of Rs.25,000/- was enhanced to a sum of Rs.10 lakhs after a negotiation of about half an hour. Therefore, the matter is not one of mere negligence, but of intentional facilitation of the accused persons in the smuggling of arms and ammunition into the country.
326. We have considered the rival submissions made by learned counsel for the parties and perused the record.
327. Evidence against the appellants:
(a) Confessional statement of Uttam Shantaram Potdar (A-30)
(b) Confessional statements of Dawood Taklya (A-14) and Dadabhai (A-17)
(c) Confessional statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Salim Kutta (A-134)
(e) Confessional statement of Mechanic Chacha (A-136)
(f) Deposition of Dilip Bhiku Pansare (PW-97)
(g) Deposition of Yeshwant Kadam (PW-109)
(h) Deposition of Pramod Mudbhatkal (PW-681)
(i) Deposition of other witnesses
328. Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav (A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) in their confessional statements, while narrating the incident of the interception of trucks at Gondghar Phata, have stated the presence of 5-7 police officials in the party, headed by VK Patil (A-116), though they have not specifically named the appellants. This police party further allowed the goods to go past, without proper checking after negotiating a bribe to the tune of Rs.7 lakhs. As the smugglers did not have said amount of Rs.7 lakhs with them at the said time, they had given five silver bricks that had been smuggled in the landing, to the police as security and subsequently, upon making them payment of the said amount to the officials, the silver bricks had been returned to the smugglers.
Confessional statement of Uttam Potdar (A-30):
329. He has stated that on 9.1.1993, at night, after the smuggling of the goods, they had been intercepted by the Shrivardhan police near Gondghar Phata. Upon inquiry, Shri Patil (A-116), SI of the Shrivardhan Police Station, had asked Salim (A-134) why the money promised to them had not been paid, as regards the earlier landing. Uttam Potdar (A-30) had told him that he had given the said money to Ramesh Mali Hawaldar. SI Patil (A-116) had seemed very annoyed. Mechanic Chacha (A-136) had then offered a sum of Rs. 10 lakhs to Hawaldar Ramesh Dattatray Mali (A-101) and Hawaldar Ashok Narayan Muneshwar (A-70), who were counting the silver bricks that had been loaded into the truck. There were 175 bricks in one truck, and in the other, there were about 100 bricks and also some boxes. Upon being asked by the Hawaldar to reveal the contents of the boxes, Mechanic Chacha (A-136) had said that the boxes contained watches and that as there was no cash, Mechanic Chacha (A-136) had taken out five silver bricks from the first truck and had given them to Pashilkar, policeman. Thus, Uttam Potdar (A-30) has specifically named the appellant, (A-70) as a member of the party who had counted the silver bricks.
Confessional statement of Jayawant Keshav Gurav (A-82):
330. In his confessional statement, he has corroborated the confession of Uttam Potdar (A-30), pointing out that he had also reached the place where the police had intercepted the two trucks carrying the smuggled goods, and that at such time, the police Sub- Inspector Patil had asked Jaywant Keshav Gurav (A-82) what should be done, and that the police thereafter, upon negotiating for about half an hour had, released the detained trucks.
331. Dawood Taklya (A-14) and Dadabhai (A-17) in their confessional statements, have revealed that a sum of Rs.25,000/- each had been given on two separate occasions to the Shrivardhan Police Station to seek assistance in the organisation of the landings.
332. Salim Kutta (A-134) and Mechanic Chacha (A-136) have supported the case of the prosecution, and have corroborated the confessions of Uttam Shantaram Potdar (A-30) and Jaywant Keshav Gurav (A-82).
Deposition of Dilip Bhiku Pansare (PW-97):
333. In his deposition, he has revealed that he had participated in the landing with Uttam Potdar (A-30). He had been driving the truck carrying the smuggled goods on 9.1.1993 from Dighi Jetty, and he has corroborated the confessional statement of Uttam Potdar (A-30) to the extent that Pashilkar (A-110) had taken the key to his vehicle, and that after checking the contents of their truck, some police personnel had shouted out that the same was silver. Mechanic Chacha (A-136) had also come there and he had negotiated with Vijay Krishanji Patil (A-116) who had also been present at that time. Uttam Potdar (A-30), Jayant Keshav Gurav (A-82) from Customs and Mechanic Chacha (A-136) etc. had talked to the police for about half an hour, and as the smuggling party did not have cash with them, five silver bricks had been given as security to them. The police had searched the first truck for a long time, while they had taken only 10 minutes to check the second one.
334. The appellant (A-70) had produced a sum of Rs.30,000/- on 24.4.1993 in presence of two witnesses, namely, Yeshwant Kadam (PW-109) and Vinod Chavan (PW-590), who had been brought by his father-in-law, and in this respect, a panchnama (Ext. 565) was prepared.
334.1 As regards the same, Yeshwant Kadam (PW-109) has deposed that he had been unable to identify the accused who had produced the said cash, which had been seized under the panchnama (Exh. 565) in court.
335. The appellants (A-99) house had been searched in the presence of the panch witnesses Yeshwant Kadam (PW-109) and Chandrashekhar (PW-622), who were police-men, and from the said house, a sum of Rs.59,200/- had been recovered. In this respect, a panchnama was prepared in the presence of the aforementioned two panch witnesses.
336. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159), Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161), Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel Koltharkar (PW-167) have deposed, that both the appellants (A- 70 and A-99) had not come to their village on patrolling duty. These witnesses were produced by the prosecution to disprove the version of the defences alibi, to the extent that they had not been present in the police party which had intercepted the smuggled goods, rather, they had been on patrolling duty. The present appellants (A-70 and A-99) may be correct in contending that simply because these witnesses had not seen the appellants in their village, the same cannot be taken to mean that the appellants had not been on patrolling duty.
Deposition of Pramod Mudbhatkal (PW-681):
337. He was an officer of the CBI who had been associated with the investigation of the Bombay Blast. He has deposed that Omprakash Chhatwal (PW-684) had been a member of the team investigating the Bombay Blast. Pramod Mudbhatkal (PW-681) had arrested Mechanic Chacha (A-136) under the supervision of Omprakash Chhatwal (PW-684), and that he (PW-684), had recorded the confessional statement of Mechanic Chacha (A-136) and that Pramod Mudbhatkal (PW-681) had requested him (PW- 684) to record his confessional statement and that he had chosen him because he (PW-684) was conversant with the matter.
338. After appreciating the evidence on record, the learned Designated Court came to the conclusion that the police party of Shrivardhan had intercepted the convoy carrying said contraband near Gondghar Phata. The entry in the log book of the police jeep has revealed that the same had been driven by the appellant (A-99), and this has not been disputed by the appellant (A-99). Hence, it is clear that appellant (A-99) had been driving the said police jeep when the party was headed by Vijay Krishnaji Patil (A-116). Furthermore, it has been held that the confessions of the co- accused and of Dilip Bhiku Pansare (PW-97) clearly reveal the involvement of the appellants in the landing episode.
338.1. It has also been held that the appellants had in fact been members of the police party headed by their superior Vijay Krishnaji Patil (A-116), and that though the appellants cannot be held to be responsible for taking the decision to permit the further transportation of said goods, however, taking into account the fact that they had not reported Vijay Krishnaji Patils (A-116) behaviour to higher officials, and further, the recovery of a large amount of money from them, clearly reveals that they had also connived with Vijay Krishnaji Patil (A-116) to commit the said acts. Thus, they are liable under section 3(3) TADA. However, as Vijay Krishnaji Patil (A-116), was primarily responsible for the decision taken by the police party and also for the handling of the negotiations, the appellants cannot be held guilty for commission of the offence of conspiracy, as they were acting in accordance with the instructions and directions of Vijay Krishnaji Patil (A- 116).
339. We find no cogent reason to interfere with the decision of the learned Designated Court. The appeals lack merit and are accordingly dismissed.
Criminal Appeal No. 403 of 2011
340. This appeal has been preferred against the respondents only on the limited issue that the respondents have been acquitted by the Special Judge of the Designated Court under the TADA for the charge of conspiracy.
341. Shri Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that these respondents were police constables who had been posted at the relevant time at the Shrivardhan Police Station. They had intercepted the contraband (arms, ammunition and explosives etc.) at Gondghar Phata. They had checked the two trucks carrying the said contraband for about 15 and 10 minutes respectively, and that despite the fact that the arms had been packed differently as compared to the silver, they had omitted to inspect the said goods properly. Moreover, the fact that they had asked for enhancement of the amount of bribe to be paid to the police for each landing, indicates that they were aware of the contents of the contraband (arms, ammunition and explosives) as well, which gave them this bargaining power. Furthermore, the Customs Inspector had issued a warning to all authorities, stating that he had definite information that arms and ammunition would be brought in by sea, owing to which they should remain alert and ensure proper checking. Therefore, they ought to have been convicted for the charge of conspiracy as well.
342. On the contrary, Shri P.K. Dey, learned counsel appearing for the respondents, has submitted that since the respondents had been subordinate to the actual recipients of the bribes, which had been taken to facilitate the landing of the contraband, they themselves had been unaware of the fact that arms and ammunition could have been brought into the country once the vehicles had been checked. They may have been negligent in the performance of their duties, but by no stretch of the imagination, can it be held that they had also conspired in the execution of the transaction. They have been convicted under Section 3(3) TADA and their appeals have been heard alongwith this appeal. Hence, no further consideration is required, particularly keeping in mind the parameters that have been laid down by this court for interference against an order of acquittal. Therefore, this appeal is liable to be dismissed.
343. We have considered the rival submissions made by learned counsel for the parties and perused the record.
344. After appreciating the entire evidence, the learned Special Judge reached a conclusion that though these respondents- constables may have been negligent in the performance of their duties, they cannot be held to be parties to the conspiracy. The learned Special Judge has taken a view that as their presence had been established at the place of interception, a case under Section 3(3) TADA can be established as a result of the cumulative effect of the said evidence. However, in view of the fact that there is nothing on record to show their involvement in the conspiracy, or of them having committed any overt acts in the execution of such conspiracy, the question of convicting them for conspiracy does not arise. As their acts do not transcend beyond their presence and their negligence in the interception and checking of the vehicles, they are entitled to the benefit of doubt as far as the conspiracy is concerned. All the constables were of inferior ranks, and were acting under the instructions of the officers who had been present at the spot. Despite the fact that all the four respondents had been members of the police party, and were hence responsible for allowing the further transportation of the smuggled contraband goods, there appears to exist some distinction between the cases of the said accused, and of Vijay Krishnaji Patil (A-116), the head of the police party, without whose consent and connivance the said goods could not have been permitted to be transported any further. Therefore, in his presence, the respondents-constables cannot be held as responsible for taking the decision to permit the further transportation of the said goods. Thus, they are liable only for the offences punishable under Section 3(3) TADA.
345. We are fully aware of our limitation to interfere with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Darshan Singh @ Darshan Lal, AIR 2012 SC 1973).
346. We have given our conscious thought to the said reasoning that has been given by the learned Designated Court, and we are of the view that the same does not require any interference. The appeal lacks merit and is dismissed accordingly.
******************
Criminal Appeal No. 171 & 172 of 2008
322. These appeals have been preferred against the judgments and orders dated 26.9.2006 and 21.5.2007, passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, by which the appellants have been convicted under Section 3(3) TADA.
322.1 They have been acquitted of the first charge of conspiracy, but have been convicted under Section 3(3) TADA and have been sentenced to suffer RI of 6 years alongwith a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for six months. They have already served a sentence of 4 years and 3 months.
323. Facts and circumstances giving rise to these appeals are that:
A. In addition to the first charge of conspiracy, the appellants have been charged for intentionally aiding and abetting terrorists, by allowing them to smuggle and transport arms and ammunition into India for the purpose of committing terrorist acts, by their illegal omission to thoroughly check motor lorries carrying arms, ammunition and other contraband, though the same had been intercepted by their team on the night of 9.1.1993, at Gondghar Phata, and for their failure to seize the aforesaid motor truck and its contents, in lieu of a bribe of Rs. 7 lakhs which had been agreed to and accepted by them, after negotiations with terrorists and their associates. Thus, they have been charged under Section 3(3) TADA.
B. After conclusion of the trial, the learned Designated Court held the appellants guilty and awarded punishment as referred to hereinabove.
Hence, these appeals.
324. Shri P.K. Dey, learned counsel appearing for the appellants, has submitted that sufficient evidence on record does not exist to convict the appellants. In their confessional statements, Uttam Shantaram Potdar (A-30) and Jaywant Keshav Gurav (A-82), have not made any reference to the smuggling of arms and ammunition, in fact, they have spoken of the smuggling of silver. Therefore, the question of framing any charge against the present appellants under TADA, in view of such confessional statements could not arise. Moreover, the memorandum annexed to the confessional statement is a part and parcel of the confession, and the same has to be filled up simultaneously, and not subsequently.
324.1 So far as the confessional statement of Uttam Shantaram Potdar (A-30) is concerned, the said memorandum had been sent subsequently. Thus, the same was in violation of the statutory provisions of TADA and, the TADA Rules, particularly, as the same was not in compliance with the requirements of sections 15(3)(b) and 15(5) of the TADA Rules.
324.2 The said confessional statement required a certificate under Rule 15(4), and such a certificate was not annexed by the officer recording the confessional statements of Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav (A-82) and Salim Kutta (A-134). The confessional statement of Salim Kutta (A-134) was recorded on 19.8.1995, and the same was sent to the CMM on 24.8.1995. Therefore, the same is not valid. It has also been contended that after the recording of the confession on 19.8.1995 at Ahmedabad, Salim Kutta (A-134) had been brought to Bombay by the CBI to the STF office, and that subsequently, he had been taken back to Ahmedabad on 24.8.1995 and that here, he was produced before the CMM Ahmedabad.
325. Shri Mukul Gupta, learned senior counsel appearing for the respondent, has submitted that these two appellants have failed to perform their duty. They had not checked the boxes, they had only counted the bricks in the trucks. The previous amount of bribe of Rs.25,000/- was enhanced to a sum of Rs.10 lakhs after a negotiation of about half an hour. Therefore, the matter is not one of mere negligence, but of intentional facilitation of the accused persons in the smuggling of arms and ammunition into the country.
326. We have considered the rival submissions made by learned counsel for the parties and perused the record.
327. Evidence against the appellants:
(a) Confessional statement of Uttam Shantaram Potdar (A-30)
(b) Confessional statements of Dawood Taklya (A-14) and Dadabhai (A-17)
(c) Confessional statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Salim Kutta (A-134)
(e) Confessional statement of Mechanic Chacha (A-136)
(f) Deposition of Dilip Bhiku Pansare (PW-97)
(g) Deposition of Yeshwant Kadam (PW-109)
(h) Deposition of Pramod Mudbhatkal (PW-681)
(i) Deposition of other witnesses
328. Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav (A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) in their confessional statements, while narrating the incident of the interception of trucks at Gondghar Phata, have stated the presence of 5-7 police officials in the party, headed by VK Patil (A-116), though they have not specifically named the appellants. This police party further allowed the goods to go past, without proper checking after negotiating a bribe to the tune of Rs.7 lakhs. As the smugglers did not have said amount of Rs.7 lakhs with them at the said time, they had given five silver bricks that had been smuggled in the landing, to the police as security and subsequently, upon making them payment of the said amount to the officials, the silver bricks had been returned to the smugglers.
Confessional statement of Uttam Potdar (A-30):
329. He has stated that on 9.1.1993, at night, after the smuggling of the goods, they had been intercepted by the Shrivardhan police near Gondghar Phata. Upon inquiry, Shri Patil (A-116), SI of the Shrivardhan Police Station, had asked Salim (A-134) why the money promised to them had not been paid, as regards the earlier landing. Uttam Potdar (A-30) had told him that he had given the said money to Ramesh Mali Hawaldar. SI Patil (A-116) had seemed very annoyed. Mechanic Chacha (A-136) had then offered a sum of Rs. 10 lakhs to Hawaldar Ramesh Dattatray Mali (A-101) and Hawaldar Ashok Narayan Muneshwar (A-70), who were counting the silver bricks that had been loaded into the truck. There were 175 bricks in one truck, and in the other, there were about 100 bricks and also some boxes. Upon being asked by the Hawaldar to reveal the contents of the boxes, Mechanic Chacha (A-136) had said that the boxes contained watches and that as there was no cash, Mechanic Chacha (A-136) had taken out five silver bricks from the first truck and had given them to Pashilkar, policeman. Thus, Uttam Potdar (A-30) has specifically named the appellant, (A-70) as a member of the party who had counted the silver bricks.
Confessional statement of Jayawant Keshav Gurav (A-82):
330. In his confessional statement, he has corroborated the confession of Uttam Potdar (A-30), pointing out that he had also reached the place where the police had intercepted the two trucks carrying the smuggled goods, and that at such time, the police Sub- Inspector Patil had asked Jaywant Keshav Gurav (A-82) what should be done, and that the police thereafter, upon negotiating for about half an hour had, released the detained trucks.
331. Dawood Taklya (A-14) and Dadabhai (A-17) in their confessional statements, have revealed that a sum of Rs.25,000/- each had been given on two separate occasions to the Shrivardhan Police Station to seek assistance in the organisation of the landings.
332. Salim Kutta (A-134) and Mechanic Chacha (A-136) have supported the case of the prosecution, and have corroborated the confessions of Uttam Shantaram Potdar (A-30) and Jaywant Keshav Gurav (A-82).
Deposition of Dilip Bhiku Pansare (PW-97):
333. In his deposition, he has revealed that he had participated in the landing with Uttam Potdar (A-30). He had been driving the truck carrying the smuggled goods on 9.1.1993 from Dighi Jetty, and he has corroborated the confessional statement of Uttam Potdar (A-30) to the extent that Pashilkar (A-110) had taken the key to his vehicle, and that after checking the contents of their truck, some police personnel had shouted out that the same was silver. Mechanic Chacha (A-136) had also come there and he had negotiated with Vijay Krishanji Patil (A-116) who had also been present at that time. Uttam Potdar (A-30), Jayant Keshav Gurav (A-82) from Customs and Mechanic Chacha (A-136) etc. had talked to the police for about half an hour, and as the smuggling party did not have cash with them, five silver bricks had been given as security to them. The police had searched the first truck for a long time, while they had taken only 10 minutes to check the second one.
334. The appellant (A-70) had produced a sum of Rs.30,000/- on 24.4.1993 in presence of two witnesses, namely, Yeshwant Kadam (PW-109) and Vinod Chavan (PW-590), who had been brought by his father-in-law, and in this respect, a panchnama (Ext. 565) was prepared.
334.1 As regards the same, Yeshwant Kadam (PW-109) has deposed that he had been unable to identify the accused who had produced the said cash, which had been seized under the panchnama (Exh. 565) in court.
335. The appellants (A-99) house had been searched in the presence of the panch witnesses Yeshwant Kadam (PW-109) and Chandrashekhar (PW-622), who were police-men, and from the said house, a sum of Rs.59,200/- had been recovered. In this respect, a panchnama was prepared in the presence of the aforementioned two panch witnesses.
336. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159), Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161), Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel Koltharkar (PW-167) have deposed, that both the appellants (A- 70 and A-99) had not come to their village on patrolling duty. These witnesses were produced by the prosecution to disprove the version of the defences alibi, to the extent that they had not been present in the police party which had intercepted the smuggled goods, rather, they had been on patrolling duty. The present appellants (A-70 and A-99) may be correct in contending that simply because these witnesses had not seen the appellants in their village, the same cannot be taken to mean that the appellants had not been on patrolling duty.
Deposition of Pramod Mudbhatkal (PW-681):
337. He was an officer of the CBI who had been associated with the investigation of the Bombay Blast. He has deposed that Omprakash Chhatwal (PW-684) had been a member of the team investigating the Bombay Blast. Pramod Mudbhatkal (PW-681) had arrested Mechanic Chacha (A-136) under the supervision of Omprakash Chhatwal (PW-684), and that he (PW-684), had recorded the confessional statement of Mechanic Chacha (A-136) and that Pramod Mudbhatkal (PW-681) had requested him (PW- 684) to record his confessional statement and that he had chosen him because he (PW-684) was conversant with the matter.
338. After appreciating the evidence on record, the learned Designated Court came to the conclusion that the police party of Shrivardhan had intercepted the convoy carrying said contraband near Gondghar Phata. The entry in the log book of the police jeep has revealed that the same had been driven by the appellant (A-99), and this has not been disputed by the appellant (A-99). Hence, it is clear that appellant (A-99) had been driving the said police jeep when the party was headed by Vijay Krishnaji Patil (A-116). Furthermore, it has been held that the confessions of the co- accused and of Dilip Bhiku Pansare (PW-97) clearly reveal the involvement of the appellants in the landing episode.
338.1. It has also been held that the appellants had in fact been members of the police party headed by their superior Vijay Krishnaji Patil (A-116), and that though the appellants cannot be held to be responsible for taking the decision to permit the further transportation of said goods, however, taking into account the fact that they had not reported Vijay Krishnaji Patils (A-116) behaviour to higher officials, and further, the recovery of a large amount of money from them, clearly reveals that they had also connived with Vijay Krishnaji Patil (A-116) to commit the said acts. Thus, they are liable under section 3(3) TADA. However, as Vijay Krishnaji Patil (A-116), was primarily responsible for the decision taken by the police party and also for the handling of the negotiations, the appellants cannot be held guilty for commission of the offence of conspiracy, as they were acting in accordance with the instructions and directions of Vijay Krishnaji Patil (A- 116).
339. We find no cogent reason to interfere with the decision of the learned Designated Court. The appeals lack merit and are accordingly dismissed.
Criminal Appeal No. 403 of 2011
340. This appeal has been preferred against the respondents only on the limited issue that the respondents have been acquitted by the Special Judge of the Designated Court under the TADA for the charge of conspiracy.
341. Shri Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that these respondents were police constables who had been posted at the relevant time at the Shrivardhan Police Station. They had intercepted the contraband (arms, ammunition and explosives etc.) at Gondghar Phata. They had checked the two trucks carrying the said contraband for about 15 and 10 minutes respectively, and that despite the fact that the arms had been packed differently as compared to the silver, they had omitted to inspect the said goods properly. Moreover, the fact that they had asked for enhancement of the amount of bribe to be paid to the police for each landing, indicates that they were aware of the contents of the contraband (arms, ammunition and explosives) as well, which gave them this bargaining power. Furthermore, the Customs Inspector had issued a warning to all authorities, stating that he had definite information that arms and ammunition would be brought in by sea, owing to which they should remain alert and ensure proper checking. Therefore, they ought to have been convicted for the charge of conspiracy as well.
342. On the contrary, Shri P.K. Dey, learned counsel appearing for the respondents, has submitted that since the respondents had been subordinate to the actual recipients of the bribes, which had been taken to facilitate the landing of the contraband, they themselves had been unaware of the fact that arms and ammunition could have been brought into the country once the vehicles had been checked. They may have been negligent in the performance of their duties, but by no stretch of the imagination, can it be held that they had also conspired in the execution of the transaction. They have been convicted under Section 3(3) TADA and their appeals have been heard alongwith this appeal. Hence, no further consideration is required, particularly keeping in mind the parameters that have been laid down by this court for interference against an order of acquittal. Therefore, this appeal is liable to be dismissed.
343. We have considered the rival submissions made by learned counsel for the parties and perused the record.
344. After appreciating the entire evidence, the learned Special Judge reached a conclusion that though these respondents- constables may have been negligent in the performance of their duties, they cannot be held to be parties to the conspiracy. The learned Special Judge has taken a view that as their presence had been established at the place of interception, a case under Section 3(3) TADA can be established as a result of the cumulative effect of the said evidence. However, in view of the fact that there is nothing on record to show their involvement in the conspiracy, or of them having committed any overt acts in the execution of such conspiracy, the question of convicting them for conspiracy does not arise. As their acts do not transcend beyond their presence and their negligence in the interception and checking of the vehicles, they are entitled to the benefit of doubt as far as the conspiracy is concerned. All the constables were of inferior ranks, and were acting under the instructions of the officers who had been present at the spot. Despite the fact that all the four respondents had been members of the police party, and were hence responsible for allowing the further transportation of the smuggled contraband goods, there appears to exist some distinction between the cases of the said accused, and of Vijay Krishnaji Patil (A-116), the head of the police party, without whose consent and connivance the said goods could not have been permitted to be transported any further. Therefore, in his presence, the respondents-constables cannot be held as responsible for taking the decision to permit the further transportation of the said goods. Thus, they are liable only for the offences punishable under Section 3(3) TADA.
345. We are fully aware of our limitation to interfere with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Darshan Singh @ Darshan Lal, AIR 2012 SC 1973).
346. We have given our conscious thought to the said reasoning that has been given by the learned Designated Court, and we are of the view that the same does not require any interference. The appeal lacks merit and is dismissed accordingly.
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