Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71) Vs. The State of Maharashtra
EmailAppeal: Criminal Appeal Nos. 1252-1253 of 2007
With
The State of Maharashtra, through CBI v. Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71)
Criminal Appeal No. 413 of 2011
With
The State of Maharashtra, through CBI v. Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71)
Criminal Appeal No. 413 of 2011
Petitioner: Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71)
Respondent: The State of Maharashtra
Apeal: Criminal Appeal Nos. 1252-1253 of 2007
With
The State of Maharashtra, through CBI v. Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71)
Criminal Appeal No. 413 of 2011
With
The State of Maharashtra, through CBI v. Ashrafur Rehman Azimulla Shaikh @ Lallu (A-71)
Criminal Appeal No. 413 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement of accused Ashrafur Rehman (A71) Charge of conspiracy Acquittal by trial court of charge of conspiracy Challenge to Accused convicted only under Sections 5 and 6 of TADA and 25(1A) and (1B) of Arms Act Appeal by him Evidence against him – Confessional statement by him Depositions of PWs His disclosure leading to recovery of hand grenades, detonators, cartridges of AK-56 rifles Recovery in presence of two witnesses No witness from place of recovery Absence of entry in daily diary about movement of police team to house of accused Connecting evidence of hiring room in guest house Absence of signature of manager of guest house on panchanamas Accused associated with Tiger, Dawood and Hazi Mastan Nothing to show that these arms etc., were part of those smuggled arms, used in commission of terrorist acts. Held that accused was rightly acquitted of charge of conspiracy etc. and was rightly convicted under Sections 5 and 6 of TADA with Section 25 of Arms Act. Absence of signature of manager or absence of movement in diary of police are not fatal and contentions rejected. Sentence reduced to 10 years. In absence of acceptable material against him regarding conspiracy and murder etc., appeal of State also dismissed. Sanjay Dutt’s case referred.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement of accused Ashrafur Rehman (A71) Charge of conspiracy Acquittal by trial court of charge of conspiracy Challenge to Accused convicted only under Sections 5 and 6 of TADA and 25(1A) and (1B) of Arms Act Appeal by him Evidence against him – Confessional statement by him Depositions of PWs His disclosure leading to recovery of hand grenades, detonators, cartridges of AK-56 rifles Recovery in presence of two witnesses No witness from place of recovery Absence of entry in daily diary about movement of police team to house of accused Connecting evidence of hiring room in guest house Absence of signature of manager of guest house on panchanamas Accused associated with Tiger, Dawood and Hazi Mastan Nothing to show that these arms etc., were part of those smuggled arms, used in commission of terrorist acts. Held that accused was rightly acquitted of charge of conspiracy etc. and was rightly convicted under Sections 5 and 6 of TADA with Section 25 of Arms Act. Absence of signature of manager or absence of movement in diary of police are not fatal and contentions rejected. Sentence reduced to 10 years. In absence of acceptable material against him regarding conspiracy and murder etc., appeal of State also dismissed. Sanjay Dutt’s case referred.
Held:
The counsel for the appellant submitted that the deposition of witness indicates that the police did no investigation qua the alleged recovery and neither any independent witness was made to witness the same even though such witnesses were available in the Musafirkhana. He further pointed out that the police took no efforts in this direction. He further stated that the alleged disclosure statement in the memorandum panchnama is a fabricated one and, therefore, the case of the prosecution must fail. On perusal of his entire evidence and the discussion of the trial Judge, we are unable to accept the above objection. (Para 58.2 )
Not a single entry was made in Station Diary of DCB, CID qua receiving information as to the movement of police team from their office to the house of the appellant and vice versa. Merely because of non-furnishing of any proof with regard to the movement in the Station Diary, evidence cannot be rejected. (Para 58.8)
The counsel for the appellant pointed out that the statement of PW-331 and the manner in which memorandum/discovery panchnamas were prepared without obtaining his signature indicates that the appellant was framed by the police. On perusal of his evidence, we reject the said contention. (Para 58.10)
From the entire evidence on record, the following stood established:
(i) The recovery of large quantity of arms and ammunitions from Musafirkhana at the instance of A-71 clearly establishes that he was in conscious possession of the arms and ammunitions and explosives.
(ii) He was a smuggler and had association with Tiger Memon, Dawood Ibrahim, Haji Mastan who were all smugglers;
(iii) He had booked the rooms in the Musafirkhana, from where large quantity of arms were seized; and
(iv) He was aware of the fact that arms and ammunitions were kept in both the rooms; (Para 59),
Considering all the relevant materials pertaining to the statement made by the accused and discovery/seizure effected in pursuance of the same and the said evidence being duly corroborated by contemporaneous document i.e. Panchnama referred to hereinabove and other evidence establishing the nature of contraband articles, the same will lead to the conclusion that A- 71 was in possession of such article which he had kept in the unused lavatory. (Para 67)
As rightly concluded by the Designated Judge, all the said evidence, in clear terms, reveal that A-71 was in possession of huge quantity of contraband material within the notified area of Greater Bombay attracting the provisions of Section 5 of TADA and failing to rebut the presumption arising out of such unlawful possession. (Para 68)
The appellant was fully conscious and aware of the ultimate use of the smuggled arms and ammunitions and explosives. Thus, the charges framed at head thirdly and fourthly against the accused stood established. (Para 70)
The prosecution failed to establish the relevant materials, viz., contraband, being part of the material smuggled into India by Tiger Memon and Dawood Ibrahim for commission of terrorist act or the same being given to A-71 by Tiger Memon or any other co-conspirator and in the absence of further acceptable material in order to prove the nexus of A-71 with the conspiracy for which the charge was framed at head firstly, A-71 cannot be held liable for commission of the said offence. We agree with the conclusion arrived at by the Designated Court and the appeal of the State is liable to be dismissed. (Para 71)
As on date, the appellant is more than 70 years of age and is suffering from a number of ailments. About his medical condition and ailments, learned counsel has furnished all the details in Crl.MP No. 5225-5226 of 2011 wherein it has been stated that the appellant is on liquid diet, he has no criminal antecedent and there is no adverse report with respect to him during the trial. It is also pointed out that the appellant has already undergone a period of 8 years (approximately) without remission. Taking note of all these aspects, we feel that while confirming the conviction, ends of justice would be met by reducing the sentence of the appellant to RI for 10 years. (Para 75)
JUDGEMENT:
JUDGEMENT
53. Mr. Prakash Sinha, learned counsel appeared for the appellant (A-71) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
54. The appeals, i.e., Criminal Appeal Nos. 1252-1253 of 2007 are directed against the final judgment and order of conviction and sentence dated 03.11.2006 and 31.05.2007 respectively, whereby the appellant (A-71) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993. Criminal Appeal No. 413 of 2011 filed by the CBI is directed against the acquittal of A-71 under the common charge framed at head firstly, i.e., conspiracy. For convenience, henceforth, we will refer accused (A-71) as appellant.
Charges:
55. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
55.1 In addition to the principal common charge of conspiracy framed at head firstly against all the co-conspirators including the appellant, he was also charged on the following counts:
At head Secondly: During the period between January-April, 1993, the appellant agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles which were smuggled by Tiger Memon and his associates for committing terrorist acts and thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly: The appellant possessed the above mentioned arms and ammunitions and concealed the same in three suitcases in the damaged unused lavatory situated at the eastern side of the 2nd floor of Musafirkhana, Bombay and thus unauthorisedly possessed them within the notified area of Greater Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly: The appellant, during the above mentioned period, possessed the said arms and ammunitions with an intent to aid terrorists, contravened the provisions of the Arms Act, 1959, Explosives Act, 1884, Explosive Substances Act, 1908 and the Explosives Rules, 1983 and thereby committed an offence punishable under Section 6 of TADA.
At head Fifthly: The appellant possessed the above mentioned arms and ammunitions which were recovered at his behest on 27.03.1993 and thereby committed an offence punishable under Sections 3 and 7 read with Sections 25(1A) and (1B) (a) of the Arms Act, 1959.
56. The Designated Court, after considering the evidence brought on record by the prosecution, found the appellant guilty on all the charges except the charges mentioned at head firstly and secondly. The appellant has been convicted and sentenced for the above said charges as under:
56.1 Conviction and Sentence:
(i) The appellant has been convicted under Section 5 of TADA for commission of offence at head thirdly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
(ii) The appellant has been convicted under Section 6 of TADA for commission of offence at head fourthly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge fourthly)
(iii) The appellant has also been convicted under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959 for commission of offence at head fifthly but no separate sentence was awarded on the said count. (charge fifthly)
Evidence
57. The evidence against the appellant (A-71) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) evidence of memorandum/discovery.
57.1 Out of the above-referred 4 categories of evidence, the appellants own confession and confessions made by other co-accused were disbelieved by the Designated Court for rendering conviction in respect of charge thirdly and fourthly as well as offences under the Arms Act. The Designated Court mainly relied on the evidence of Memorandum/discovery and testimony of prosecution witnesses.
Deposition of Prosecution Witnesses:
58. The involvement and the role of the appellant is disclosed by the deposition of various prosecution witnesses which are as follows:
Deposition of Abdul Kadar Abubakar Khan (PW-323)
58.1 PW-323 was attached with DCB, CID as an Assistant sub-Inspector of Police. The relevant facts in his deposition are as under:-
(i) He deposed that on 27.03.1993, on the basis of the information received from reliable sources, he arrested the appellant.
(ii) During interrogation, the appellant showed willingness to make a voluntary statement.
(iii) He deposed that he called two panch witnesses.
(iv) He deposed that the appellant lead the police party and the panchas to Musafirkhana.
(v) In Musafirkhana, the appellant lead them to an unused lavatory on the second floor where three bags of Encore Company were kept on the floor.
(vi) He deposed that the keys of the said bags were lying next to them.
(vii) The appellant opened all the bags with the keys.
(viii) The first bag was found to be containing 85 hand grenades, second bag was found to be having 350 detonators and the third bag was containing 3,270 cartridges of AK-56 rifles.
(ix) He deposed that PI Shri Nandkumar Anant Chaugule (PW-444) of the Bomb Detection and Disposal Squad (BDDS) was called to defuse the hand grenades.
(x) He deposed that he lodged the complaint on 27.03.1993 and the same was marked as Exh. 1210.
(xi) He identified the appellant before the court in the dock.
58.2 The counsel for the appellant submitted that the deposition of this witness indicates that the police did no investigation qua the alleged recovery and neither any independent witness was made to witness the same even though such witnesses were available in the Musafirkhana. He further pointed out that the police took no efforts in this direction. He further stated that the alleged disclosure statement in the memorandum panchnama is a fabricated one and, therefore, the case of the prosecution must fail. On perusal of his entire evidence and the discussion of the trial Judge, we are unable to accept the above objection.
Deposition of Nandkumar Chaugule (PW-444)
58.3 The witness was working as an Incharge, Senior Inspector of Police, Bomb Detection and Disposal Squad (BDDS) of CID Intelligence, Bombay at the relevant time. He deposed that:
(i) On 27.03.1993, he went to Musafirkhana and reached the lavatory on the second floor.
(ii) On the spot, he saw three suitcases. Out of them, one was containing green coloured hand grenades, the second was containing electronic detonators and the third suitcase was containing cartridges for AK-56 rifles.
(iii) He deposed that he asked his officer, P.I. Zarapkar to diffuse one hand grenade. Five electronic detonators were diffused by S.I. Desai. Thereafter, parts of the grenades and the detonators were handed over to PI Shivaji Shankar Sawant (PW-524).
58.4 Learned counsel for the appellant commented that it (deposition) does not connect the appellant with the alleged recovery at Musafirkhana. On perusal of his entire evidence, we reject the above objection of the counsel for the appellant.
Deposition of Shivaji Shankar Sawant (PW-524)
58.5 PW-524 was working as a Police Inspector since 1984. At the time of the incident, he was attached with Unit III of DCB, CID (Crime Branch). He deposed that:
(i) He noted the voluntary disclosure statement made by the appellant which has been marked as Exhibit 439.
(ii) He deposed that the appellant led the police party to the second floor of Musafirkhana.
(iii) From there, 3 suitcases were recovered and the same were containing 350 detonators, 3270 bullets of AK-47 and AK-56 rifles and 85 hand grenades.
(iv) PW 444 arrived at the spot and defused the hand grenades and the detonators.
(v) He drew the discovery panchnama which was marked as Exhibit 439A.
(vi) He deposed that he sent the articles seized for chemical analysis vide forwarding letter dated 09.06.1993 marked as Exh. Nos. 1810 and 1811.
(vii) He deposed that the CA report dated 20.07.1993 and 07.07.1993 were received and the same were marked as Exh. Nos. 1810-A and 1811-A.
(viii) He deposed that from the perusal of CA reports, it is clearly discernible that the articles seized at the behest of the appellant are explosive materials.
58.6 Mr. Sinha submitted that though this witness claims recovery of large quantity of arms, none of the police personnel enquired the other occupants of Musafirkhana on the said date. On perusal of his entire evidence, we are satisfied that there is no substance in the said objection.
Deposition of Rajan Pinanath Dhoble (PW-585)
58.7 At the time of the incident, he was attached with DCB, CID, Unit-I as a P.I. He deposed as under:
(i) On 27.03.1993 after receipt of information, he arrested A-71 in C.R. No. 71193.
(ii) Senior P.I. Shri Shivaji Sawant did the interrogation of the said accused.
(iii) He was also present at the said stage.
(iv) During the said interrogation, the voluntary statement made by the accused was recorded by drawing the memorandum panchanama in the presence of panch witnesses.
(v) Thereafter, the accused led panchas and police to an unused latrine on the second floor of Haji Sabu Siddique Musafirkhana.
(vi) At the said place, the accused had taken out three suitcases.
(vii) The suitcases were found to be containing 85 hand grenades, 3270 live cartridges and 350 detonators.
(viii) The same were taken charge by the police by further drawing recovery panchanama in the presence of panch witnesses.
(ix) Senior P.I. Shri Sawant registered separate case regarding the said seizure.
(x) In the month of August, 1993, he came to the conclusion that the material collected during the investigation disclosed the involvement of the arrested accused in the commission of offences under the Explosive Substances Act.
58.8 Here again, learned counsel for the appellant submitted that not even a single entry was made in Station Diary of DCB, CID qua receiving information as to the movement of police team from their office to the house of the appellant and vice versa. Merely because of non-furnishing of any proof with regard to the movement in the Station Diary, his evidence cannot be rejected.
Deposition of Faquih Abdul Sattar (PW-331)
58.9 At the relevant time, he was working as an Assistant Manager in the office of Mohammed Haji Sabu Siddique Musafirkhana Trust. The relevant facts in his deposition are as under:-
(i) He deposed that he knew a person by name Lalubhai (A-71).
(ii) On 08.03.1993, a person came to him and told that he was sent by Lalubhai (A-71) and he wanted two rooms for 4/5 days.
(iii) He booked the rooms and allotted Room Nos. 16 and 17.
(iv) The said person was in possession of the rooms from 08.03.1993 to 19.03.1993.
58.10 The counsel for the appellant pointed out that the statement of PW-331 and the manner in which memorandum/discovery panchnamas were prepared without obtaining his signature indicates that the appellant was framed by the police. On perusal of his evidence, we reject the said contention.
59. From the entire evidence on record, the following stood established:
(i) The recovery of large quantity of arms and ammunitions from Musafirkhana at the instance of A-71 clearly establishes that he was in conscious possession of the arms and ammunitions and explosives.
(ii) He was a smuggler and had association with Tiger Memon, Dawood Ibrahim, Haji Mastan who were all smugglers;
(iii) He had booked the rooms in the Musafirkhana, from where large quantity of arms were seized; and
(iv) He was aware of the fact that arms and ammunitions were kept in both the rooms;
60. Though counsel for the appellant commented on the prosecution witnesses who spoke about the role of the present appellant (A-71), as discussed above, we find no merit in the said contention.
Recovery:
Memorandum of Discovery Panchnama
61. The Memorandum of Panchnamas (Exh. Nos. 439 and 439A) were recorded between 12:30 p.m. and 12:45 p.m. on 27.03.1993 in the office of DCB, CID. The panchas were a) Dasarath Govind Londe (not examined since expired); and b) Syed Badshah Gouse Mohideen (PW-85), who turned hostile. As per the prosecution, the police have recovered three suit cases of Encore Company containing 85 handgrenades, 350 electronic detonators and 3270 live cartridges of AK-57 rifles from the unused lavatory of second floor of Musafirkhana.
62. Both the documents, namely, Exh. Nos. 439 and 439A were having the signatures of the panch witnesses. Apart from this, PI Shivaji Shankar Sawant (PW-524), also signed the same. Learned counsel for the appellant submitted that in the absence of signature of the appellant on either side of the memorandum or discovery panchnama, the entire memorandum has to be ignored. However, learned counsel appearing for the CBI, by pointing out the signature in the said document, claimed that such signature was that of the appellant. Even if we accept that the appellant-accused has not signed the panchnama, in view of the contents therein and the statement of panch witness (though he turned hostile at a later point of time), it cannot be rejected as claimed by the counsel for the appellant. Further, one of the panchas i.e., PW-85 though turned hostile, the fact remains that he accepted his signature. He also admitted the contents and informed the Court that the same was explained to him. Admittedly, this was not challenged by the appellant (A-71) while cross examining him. These aspects support the stand of the prosecution.
63. The document Exh. 439 and 439A makes it clear that the accused appellant led the police party on foot up to the eastern side of the Musafirkhana and pointed out one damaged and unused lavatory as the place where he had kept the three suit cases. The said lavatory was having a broken door which was open. A-71 pointed out 3 bags kept inside the lavatory which were kept on the floor of the same. All the three bags were of Encore Company and were almost of the same size. The keys of the said bags were also lying at the said place. The said keys were in three separate bunches. A-71 took up one bunch of keys and opened one of the bags out of the three. The said bag was found to be containing 85 hand grenades. By way of sample, one of the hand grenade from the said bag was taken by PI Sawant. Thereafter, with the help of second bunch of keys, A-71 opened another bag. The bag was found to be containing 4 bundles of detonators. Three bundles out of the said 4 bundles were containing 100 detonators each while the fourth bundle was containing 50 detonators. For sample, one detonator from each bundle was taken by PI Sawant. Thereafter, A-71 opened the third bag with the help of keys. The said bag was found to be containing 3270 cartridges of AK-56 rifles. The said cartridges were bearing three different types of markings. PI Sawant took samples of 5 cartridges, 4 cartridges and 1 cartridge having different types of marking from the said bag.
64. In respect of the said discovery, FIR being LAC No. 15 of 1993 dated 27.03.1993 was lodged at 15.30 hrs. by PS/DGP/CID on the complaint of Abdul Kadar Abubakkar Khan (PW-323).
65. While considering the common charge, namely, conspiracy, the Designated Court has recorded a finding that there is no evidence on record to establish that the recovered contraband was smuggled by Tiger Memon and his associates. The Court also recorded that the evidence brought in has failed to establish precisely the period for which A-71 was in possession of the said contraband material and further, there is nothing on record to suggest for what purpose the appellant was in possession of such a huge quantity of contraband.
66. It is relevant to point out that at the trial, the appellant-accused along with A-103, in addition to the principal charge of conspiracy framed at head firstly was further charged at head secondly for commission of offence under Section 3(3) of TADA on account of A-71, in pursuance of the conspiracy, during the period, i.e., January, 1993 to April, 1993 having agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles unauthorisedly, which were part of consignment smuggled by co-conspirators Tiger Memon and his associates for commission of terrorist acts.
67. Regarding the discovery of arms and ammunitions in large quantities, the Designated Judge has noted that though one of the panch witness had not supported the prosecution case, however, the Designated Court has held that the evidence of the officer from BDDS cannot be termed to be an interested witness as the said investigation was not affected at his behest. Considering all the relevant materials pertaining to the statement made by the accused and discovery/seizure effected in pursuance of the same and the said evidence being duly corroborated by contemporaneous document i.e. Panchnama referred to hereinabove and other evidence establishing the nature of contraband articles, the same will lead to the conclusion that A- 71 was in possession of such article which he had kept in the unused lavatory.
68. As rightly concluded by the Designated Judge, all the said evidence, in clear terms, reveal that A-71 was in possession of huge quantity of contraband material within the notified area of Greater Bombay attracting the provisions of Section 5 of TADA and failing to rebut the presumption arising out of such unlawful possession. The said presumption has been explained by a Constitution Bench of this Court in the case of Sanjay Dutt v. State thr. CBI, Bombay, [JT 1994 (5) SC 540 : (1994) 5 SCC 410] as the presumption of having himself possessed the same for commission of terrorist activity. In view of the same, the Designated Judge has rightly held A-71 guilty of commission of offence under Section 5 of TADA.
69. Considering the large quantity of contraband materials in the possession of A-71, the period in which he was found to be in possession of the same and all the other relevant circumstances, it lead to the conclusion that A-71 himself being possessed the same and in the said process having contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884 etc. thereby having made himself liable for commission of offences under Section 6 of TADA and also under Sections 3 and 7 read with Section 25 (1-A) and (1-B) (a) of the Arms Act, 1959.
70. Upon a conjoint reading of the entire evidence, it is clearly established that the appellant was fully conscious and aware of the ultimate use of the smuggled arms and ammunitions and explosives. Thus, the charges framed at head thirdly and fourthly against the accused stood established.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 413 of 2011
71. We have already extracted the common charge of conspiracy in the earlier part of our order. The Designated Court, on going through the confessional statement of the appellant and co-accused persons, viz., A-10 and A-12 disbelieved their version and rejected the same. Though Mr. Gupta, learned counsel for the CBI pointed out certain materials regarding the charge framed at head firstly, i.e., conspiracy, we are satisfied that the prosecution failed to establish the relevant materials, viz., contraband, being part of the material smuggled into India by Tiger Memon and Dawood Ibrahim for commission of terrorist act or the same being given to A-71 by Tiger Memon or any other co-conspirator and in the absence of further acceptable material in order to prove the nexus of A-71 with the conspiracy for which the charge was framed at head firstly, A-71 cannot be held liable for commission of the said offence. We agree with the conclusion arrived at by the Designated Court and the appeal of the State is liable to be dismissed.
Sentence
72. It is brought to our notice that the appellant was given an opportunity to defend himself on the question of quantum of sentence. The appellant filed statement dated 07.11.2006 on the quantum of sentence which is Exh. Nos. 3000 and 3000A. The appellant prayed that the following, amongst other factors, may be considered while determining his sentence:
1) I am 65 yrs. of age.
2) I had suffered from schizophrenia about three years back
3) Due to the same, I was required to take medicines and so also shock treatment.
4) I am still under medication
5) I am also suffering from the ailment of kidney stone.
6) I was not involved in commission of any terrorist act.
7) I have faced the legal proceedings for about 13 years.
8) I had already remained in custody for 2 yrs. and 6 months.
9) Hardly there is any record of myself having not complied with any of the conditions imposed by the court while granting the bail.
10) I have no antecedent.
11) I am producing Xerox copies of ration card, election card and papers showing my age and I am suffering from ailment of kidney. (marked as Exhibit : 3000-A colly. )
12) Considering circumstances peculiar to me i.e. I was not involved in commission of terrorist act, my age and I am sick person, I may be given the lesser punishment.
73. The Designated Court considered all these factors while determining the sentence for the appellant. After considering the acts committed and the statement regarding the quantum of sentence, it was held:
809) On the aforesaid backdrop considering submission advanced by Ld. advocate Mr. HH Ponda for A-71 that considering character of evidence about guilt of accused i.e. the same being based upon the Disclosure Statement leading to recovery of huge contraband articles from a lavatory at a public place or quantity of material recovered denoting that the same were with A-71 merely for storage purpose and hence considering his age being of 65 years or he is a sick person minimum sentence as provided under law would be warranted does not appeal to mind after taking into consideration all the relevant circumstances relating to the offences for which A-71 has been found guilty. Such a conclusion is inevitable as a fact cannot be overlooked that A-71 was possessing such contraband material capable of causing mass destruction within the notified area. It needs no saying that the weapon of such a nature cannot be acquired and/or possessed without incurring any appreciable expenditure. Truly speaking possession of such a large quantity of contraband material with A-71 viewed from any angle i.e. either himself having acquired the same or somebody else having kept with him and taking into consideration the purpose for which the same can be said to have been possessed i.e. illegal use of same for illegal purpose would warrant levying the maximum punishment prescribed under law.
810) Thus after taking into consideration the gravity of acts committed by A-71, nature of material possessed by him but the same being not recovered from his house and the same being recovered from a unused lavatory in Musafirkhana but concealed at the said place, A-71 being not found involved in terrorist act and considering matters disclosed from clauses No. 1 to 12 in answer to relevant question asked to him while recording his statement upon quantum of sentence to be imposed i.e. at Exh.3000 i.e. his age, the ailments suffered by him, himself being not fully recovered, himself having faced legal proceedings for 13 years, himself having no antecedents, himself having not involved in any terrorist act, court having not received any adverse report about his conduct etc., during long drawn trial and having regard to sentence given to A-l07, 72 and few others having regard to quantity of contraband material possessed by them and the material possessed by A-71 sentence of RI for Life and a fine of Rs. l lakh with a suitable sentence of further RI in event of non-payment of fine for commission of offence u/s.5 of TADA and sentence of RI for life and a fine of Rs. 1 lakh with a suitable sentence of further RI in event of non-payment of fine for commission of offence u/s. 6 of TADA with no separate sentence for the reasons stated earlier for commission of offence under Sections 3 and 7 r/w Section 25 (1A) (1B)(a) of Arms Act for A-71 would serve the ends of justice. Needless to add that contraband material seized will require to be confiscated.
74. Learned counsel for the appellant submitted that under the facts and circumstances of the case, the Designated Court while sentencing the appellant erred in not striking a balance between doctrine of proportionality and doctrine of rehabilitation and according to him, the appellant was granted maximum punishment prescribed under Sections 5 and 6 of TADA whereas minimum punishment prescribed is 5 years. He further submitted that considering his age, ailment and conduct the appellant did not deserve the maximum punishment. He also pointed out that the appellant had already undergone a period of 8 (eight and a half) years approximately without remission.
75. It is relevant to note that even according to the prosecution, all the above mentioned goods though being smuggled, kept only in the open lavatory within the Musafirkhana. In other words, admittedly, the recovery was from an open and accessible place to all the persons visiting the Musafirkhana for any purpose including prayer or the persons staying therein. It is also relevant to point out that the prosecution failed to lead acceptable evidence to show that such recovered contrabands were used in any crime by the appellant and even the Designated Court came to the same finding. As per the proved charges under Sections 5 and 6 of TADA, the minimum punishment prescribed is 5 years and maximum is life sentence. Taking note of the age, ailments and conduct of the appellant as recorded by the Designated Court itself in Part 46 of the impugned judgment noted down while confirming the conviction, we feel that the appellant did not deserve the maximum sentence of life imprisonment. At the time of arguments, learned counsel for the appellant pointed out that as on date, the appellant is more than 70 years of age and is suffering from a number of ailments. About his medical condition and ailments, learned counsel has furnished all the details in Crl.MP No. 5225-5226 of 2011 wherein it has been stated that the appellant is on liquid diet, he has no criminal antecedent and there is no adverse report with respect to him during the trial. It is also pointed out that the appellant has already undergone a period of 8 years (approximately) without remission. Taking note of all these aspects, we feel that while confirming the conviction, ends of justice would be met by reducing the sentence of the appellant to RI for 10 years.
76. Consequently, we dispose of the appeals filed by the appellant (A-71) while confirming the conviction and reduce the sentence to RI for 10 years. The appeal filed by the State in respect of acquittal ordered by the Designated Court relating to the common charge of conspiracy is also dismissed.
53. Mr. Prakash Sinha, learned counsel appeared for the appellant (A-71) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
54. The appeals, i.e., Criminal Appeal Nos. 1252-1253 of 2007 are directed against the final judgment and order of conviction and sentence dated 03.11.2006 and 31.05.2007 respectively, whereby the appellant (A-71) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993. Criminal Appeal No. 413 of 2011 filed by the CBI is directed against the acquittal of A-71 under the common charge framed at head firstly, i.e., conspiracy. For convenience, henceforth, we will refer accused (A-71) as appellant.
Charges:
55. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
55.1 In addition to the principal common charge of conspiracy framed at head firstly against all the co-conspirators including the appellant, he was also charged on the following counts:
At head Secondly: During the period between January-April, 1993, the appellant agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles which were smuggled by Tiger Memon and his associates for committing terrorist acts and thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly: The appellant possessed the above mentioned arms and ammunitions and concealed the same in three suitcases in the damaged unused lavatory situated at the eastern side of the 2nd floor of Musafirkhana, Bombay and thus unauthorisedly possessed them within the notified area of Greater Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly: The appellant, during the above mentioned period, possessed the said arms and ammunitions with an intent to aid terrorists, contravened the provisions of the Arms Act, 1959, Explosives Act, 1884, Explosive Substances Act, 1908 and the Explosives Rules, 1983 and thereby committed an offence punishable under Section 6 of TADA.
At head Fifthly: The appellant possessed the above mentioned arms and ammunitions which were recovered at his behest on 27.03.1993 and thereby committed an offence punishable under Sections 3 and 7 read with Sections 25(1A) and (1B) (a) of the Arms Act, 1959.
56. The Designated Court, after considering the evidence brought on record by the prosecution, found the appellant guilty on all the charges except the charges mentioned at head firstly and secondly. The appellant has been convicted and sentenced for the above said charges as under:
56.1 Conviction and Sentence:
(i) The appellant has been convicted under Section 5 of TADA for commission of offence at head thirdly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
(ii) The appellant has been convicted under Section 6 of TADA for commission of offence at head fourthly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge fourthly)
(iii) The appellant has also been convicted under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959 for commission of offence at head fifthly but no separate sentence was awarded on the said count. (charge fifthly)
Evidence
57. The evidence against the appellant (A-71) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) evidence of memorandum/discovery.
57.1 Out of the above-referred 4 categories of evidence, the appellants own confession and confessions made by other co-accused were disbelieved by the Designated Court for rendering conviction in respect of charge thirdly and fourthly as well as offences under the Arms Act. The Designated Court mainly relied on the evidence of Memorandum/discovery and testimony of prosecution witnesses.
Deposition of Prosecution Witnesses:
58. The involvement and the role of the appellant is disclosed by the deposition of various prosecution witnesses which are as follows:
Deposition of Abdul Kadar Abubakar Khan (PW-323)
58.1 PW-323 was attached with DCB, CID as an Assistant sub-Inspector of Police. The relevant facts in his deposition are as under:-
(i) He deposed that on 27.03.1993, on the basis of the information received from reliable sources, he arrested the appellant.
(ii) During interrogation, the appellant showed willingness to make a voluntary statement.
(iii) He deposed that he called two panch witnesses.
(iv) He deposed that the appellant lead the police party and the panchas to Musafirkhana.
(v) In Musafirkhana, the appellant lead them to an unused lavatory on the second floor where three bags of Encore Company were kept on the floor.
(vi) He deposed that the keys of the said bags were lying next to them.
(vii) The appellant opened all the bags with the keys.
(viii) The first bag was found to be containing 85 hand grenades, second bag was found to be having 350 detonators and the third bag was containing 3,270 cartridges of AK-56 rifles.
(ix) He deposed that PI Shri Nandkumar Anant Chaugule (PW-444) of the Bomb Detection and Disposal Squad (BDDS) was called to defuse the hand grenades.
(x) He deposed that he lodged the complaint on 27.03.1993 and the same was marked as Exh. 1210.
(xi) He identified the appellant before the court in the dock.
58.2 The counsel for the appellant submitted that the deposition of this witness indicates that the police did no investigation qua the alleged recovery and neither any independent witness was made to witness the same even though such witnesses were available in the Musafirkhana. He further pointed out that the police took no efforts in this direction. He further stated that the alleged disclosure statement in the memorandum panchnama is a fabricated one and, therefore, the case of the prosecution must fail. On perusal of his entire evidence and the discussion of the trial Judge, we are unable to accept the above objection.
Deposition of Nandkumar Chaugule (PW-444)
58.3 The witness was working as an Incharge, Senior Inspector of Police, Bomb Detection and Disposal Squad (BDDS) of CID Intelligence, Bombay at the relevant time. He deposed that:
(i) On 27.03.1993, he went to Musafirkhana and reached the lavatory on the second floor.
(ii) On the spot, he saw three suitcases. Out of them, one was containing green coloured hand grenades, the second was containing electronic detonators and the third suitcase was containing cartridges for AK-56 rifles.
(iii) He deposed that he asked his officer, P.I. Zarapkar to diffuse one hand grenade. Five electronic detonators were diffused by S.I. Desai. Thereafter, parts of the grenades and the detonators were handed over to PI Shivaji Shankar Sawant (PW-524).
58.4 Learned counsel for the appellant commented that it (deposition) does not connect the appellant with the alleged recovery at Musafirkhana. On perusal of his entire evidence, we reject the above objection of the counsel for the appellant.
Deposition of Shivaji Shankar Sawant (PW-524)
58.5 PW-524 was working as a Police Inspector since 1984. At the time of the incident, he was attached with Unit III of DCB, CID (Crime Branch). He deposed that:
(i) He noted the voluntary disclosure statement made by the appellant which has been marked as Exhibit 439.
(ii) He deposed that the appellant led the police party to the second floor of Musafirkhana.
(iii) From there, 3 suitcases were recovered and the same were containing 350 detonators, 3270 bullets of AK-47 and AK-56 rifles and 85 hand grenades.
(iv) PW 444 arrived at the spot and defused the hand grenades and the detonators.
(v) He drew the discovery panchnama which was marked as Exhibit 439A.
(vi) He deposed that he sent the articles seized for chemical analysis vide forwarding letter dated 09.06.1993 marked as Exh. Nos. 1810 and 1811.
(vii) He deposed that the CA report dated 20.07.1993 and 07.07.1993 were received and the same were marked as Exh. Nos. 1810-A and 1811-A.
(viii) He deposed that from the perusal of CA reports, it is clearly discernible that the articles seized at the behest of the appellant are explosive materials.
58.6 Mr. Sinha submitted that though this witness claims recovery of large quantity of arms, none of the police personnel enquired the other occupants of Musafirkhana on the said date. On perusal of his entire evidence, we are satisfied that there is no substance in the said objection.
Deposition of Rajan Pinanath Dhoble (PW-585)
58.7 At the time of the incident, he was attached with DCB, CID, Unit-I as a P.I. He deposed as under:
(i) On 27.03.1993 after receipt of information, he arrested A-71 in C.R. No. 71193.
(ii) Senior P.I. Shri Shivaji Sawant did the interrogation of the said accused.
(iii) He was also present at the said stage.
(iv) During the said interrogation, the voluntary statement made by the accused was recorded by drawing the memorandum panchanama in the presence of panch witnesses.
(v) Thereafter, the accused led panchas and police to an unused latrine on the second floor of Haji Sabu Siddique Musafirkhana.
(vi) At the said place, the accused had taken out three suitcases.
(vii) The suitcases were found to be containing 85 hand grenades, 3270 live cartridges and 350 detonators.
(viii) The same were taken charge by the police by further drawing recovery panchanama in the presence of panch witnesses.
(ix) Senior P.I. Shri Sawant registered separate case regarding the said seizure.
(x) In the month of August, 1993, he came to the conclusion that the material collected during the investigation disclosed the involvement of the arrested accused in the commission of offences under the Explosive Substances Act.
58.8 Here again, learned counsel for the appellant submitted that not even a single entry was made in Station Diary of DCB, CID qua receiving information as to the movement of police team from their office to the house of the appellant and vice versa. Merely because of non-furnishing of any proof with regard to the movement in the Station Diary, his evidence cannot be rejected.
Deposition of Faquih Abdul Sattar (PW-331)
58.9 At the relevant time, he was working as an Assistant Manager in the office of Mohammed Haji Sabu Siddique Musafirkhana Trust. The relevant facts in his deposition are as under:-
(i) He deposed that he knew a person by name Lalubhai (A-71).
(ii) On 08.03.1993, a person came to him and told that he was sent by Lalubhai (A-71) and he wanted two rooms for 4/5 days.
(iii) He booked the rooms and allotted Room Nos. 16 and 17.
(iv) The said person was in possession of the rooms from 08.03.1993 to 19.03.1993.
58.10 The counsel for the appellant pointed out that the statement of PW-331 and the manner in which memorandum/discovery panchnamas were prepared without obtaining his signature indicates that the appellant was framed by the police. On perusal of his evidence, we reject the said contention.
59. From the entire evidence on record, the following stood established:
(i) The recovery of large quantity of arms and ammunitions from Musafirkhana at the instance of A-71 clearly establishes that he was in conscious possession of the arms and ammunitions and explosives.
(ii) He was a smuggler and had association with Tiger Memon, Dawood Ibrahim, Haji Mastan who were all smugglers;
(iii) He had booked the rooms in the Musafirkhana, from where large quantity of arms were seized; and
(iv) He was aware of the fact that arms and ammunitions were kept in both the rooms;
60. Though counsel for the appellant commented on the prosecution witnesses who spoke about the role of the present appellant (A-71), as discussed above, we find no merit in the said contention.
Recovery:
Memorandum of Discovery Panchnama
61. The Memorandum of Panchnamas (Exh. Nos. 439 and 439A) were recorded between 12:30 p.m. and 12:45 p.m. on 27.03.1993 in the office of DCB, CID. The panchas were a) Dasarath Govind Londe (not examined since expired); and b) Syed Badshah Gouse Mohideen (PW-85), who turned hostile. As per the prosecution, the police have recovered three suit cases of Encore Company containing 85 handgrenades, 350 electronic detonators and 3270 live cartridges of AK-57 rifles from the unused lavatory of second floor of Musafirkhana.
62. Both the documents, namely, Exh. Nos. 439 and 439A were having the signatures of the panch witnesses. Apart from this, PI Shivaji Shankar Sawant (PW-524), also signed the same. Learned counsel for the appellant submitted that in the absence of signature of the appellant on either side of the memorandum or discovery panchnama, the entire memorandum has to be ignored. However, learned counsel appearing for the CBI, by pointing out the signature in the said document, claimed that such signature was that of the appellant. Even if we accept that the appellant-accused has not signed the panchnama, in view of the contents therein and the statement of panch witness (though he turned hostile at a later point of time), it cannot be rejected as claimed by the counsel for the appellant. Further, one of the panchas i.e., PW-85 though turned hostile, the fact remains that he accepted his signature. He also admitted the contents and informed the Court that the same was explained to him. Admittedly, this was not challenged by the appellant (A-71) while cross examining him. These aspects support the stand of the prosecution.
63. The document Exh. 439 and 439A makes it clear that the accused appellant led the police party on foot up to the eastern side of the Musafirkhana and pointed out one damaged and unused lavatory as the place where he had kept the three suit cases. The said lavatory was having a broken door which was open. A-71 pointed out 3 bags kept inside the lavatory which were kept on the floor of the same. All the three bags were of Encore Company and were almost of the same size. The keys of the said bags were also lying at the said place. The said keys were in three separate bunches. A-71 took up one bunch of keys and opened one of the bags out of the three. The said bag was found to be containing 85 hand grenades. By way of sample, one of the hand grenade from the said bag was taken by PI Sawant. Thereafter, with the help of second bunch of keys, A-71 opened another bag. The bag was found to be containing 4 bundles of detonators. Three bundles out of the said 4 bundles were containing 100 detonators each while the fourth bundle was containing 50 detonators. For sample, one detonator from each bundle was taken by PI Sawant. Thereafter, A-71 opened the third bag with the help of keys. The said bag was found to be containing 3270 cartridges of AK-56 rifles. The said cartridges were bearing three different types of markings. PI Sawant took samples of 5 cartridges, 4 cartridges and 1 cartridge having different types of marking from the said bag.
64. In respect of the said discovery, FIR being LAC No. 15 of 1993 dated 27.03.1993 was lodged at 15.30 hrs. by PS/DGP/CID on the complaint of Abdul Kadar Abubakkar Khan (PW-323).
65. While considering the common charge, namely, conspiracy, the Designated Court has recorded a finding that there is no evidence on record to establish that the recovered contraband was smuggled by Tiger Memon and his associates. The Court also recorded that the evidence brought in has failed to establish precisely the period for which A-71 was in possession of the said contraband material and further, there is nothing on record to suggest for what purpose the appellant was in possession of such a huge quantity of contraband.
66. It is relevant to point out that at the trial, the appellant-accused along with A-103, in addition to the principal charge of conspiracy framed at head firstly was further charged at head secondly for commission of offence under Section 3(3) of TADA on account of A-71, in pursuance of the conspiracy, during the period, i.e., January, 1993 to April, 1993 having agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles unauthorisedly, which were part of consignment smuggled by co-conspirators Tiger Memon and his associates for commission of terrorist acts.
67. Regarding the discovery of arms and ammunitions in large quantities, the Designated Judge has noted that though one of the panch witness had not supported the prosecution case, however, the Designated Court has held that the evidence of the officer from BDDS cannot be termed to be an interested witness as the said investigation was not affected at his behest. Considering all the relevant materials pertaining to the statement made by the accused and discovery/seizure effected in pursuance of the same and the said evidence being duly corroborated by contemporaneous document i.e. Panchnama referred to hereinabove and other evidence establishing the nature of contraband articles, the same will lead to the conclusion that A- 71 was in possession of such article which he had kept in the unused lavatory.
68. As rightly concluded by the Designated Judge, all the said evidence, in clear terms, reveal that A-71 was in possession of huge quantity of contraband material within the notified area of Greater Bombay attracting the provisions of Section 5 of TADA and failing to rebut the presumption arising out of such unlawful possession. The said presumption has been explained by a Constitution Bench of this Court in the case of Sanjay Dutt v. State thr. CBI, Bombay, [JT 1994 (5) SC 540 : (1994) 5 SCC 410] as the presumption of having himself possessed the same for commission of terrorist activity. In view of the same, the Designated Judge has rightly held A-71 guilty of commission of offence under Section 5 of TADA.
69. Considering the large quantity of contraband materials in the possession of A-71, the period in which he was found to be in possession of the same and all the other relevant circumstances, it lead to the conclusion that A-71 himself being possessed the same and in the said process having contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884 etc. thereby having made himself liable for commission of offences under Section 6 of TADA and also under Sections 3 and 7 read with Section 25 (1-A) and (1-B) (a) of the Arms Act, 1959.
70. Upon a conjoint reading of the entire evidence, it is clearly established that the appellant was fully conscious and aware of the ultimate use of the smuggled arms and ammunitions and explosives. Thus, the charges framed at head thirdly and fourthly against the accused stood established.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 413 of 2011
71. We have already extracted the common charge of conspiracy in the earlier part of our order. The Designated Court, on going through the confessional statement of the appellant and co-accused persons, viz., A-10 and A-12 disbelieved their version and rejected the same. Though Mr. Gupta, learned counsel for the CBI pointed out certain materials regarding the charge framed at head firstly, i.e., conspiracy, we are satisfied that the prosecution failed to establish the relevant materials, viz., contraband, being part of the material smuggled into India by Tiger Memon and Dawood Ibrahim for commission of terrorist act or the same being given to A-71 by Tiger Memon or any other co-conspirator and in the absence of further acceptable material in order to prove the nexus of A-71 with the conspiracy for which the charge was framed at head firstly, A-71 cannot be held liable for commission of the said offence. We agree with the conclusion arrived at by the Designated Court and the appeal of the State is liable to be dismissed.
Sentence
72. It is brought to our notice that the appellant was given an opportunity to defend himself on the question of quantum of sentence. The appellant filed statement dated 07.11.2006 on the quantum of sentence which is Exh. Nos. 3000 and 3000A. The appellant prayed that the following, amongst other factors, may be considered while determining his sentence:
1) I am 65 yrs. of age.
2) I had suffered from schizophrenia about three years back
3) Due to the same, I was required to take medicines and so also shock treatment.
4) I am still under medication
5) I am also suffering from the ailment of kidney stone.
6) I was not involved in commission of any terrorist act.
7) I have faced the legal proceedings for about 13 years.
8) I had already remained in custody for 2 yrs. and 6 months.
9) Hardly there is any record of myself having not complied with any of the conditions imposed by the court while granting the bail.
10) I have no antecedent.
11) I am producing Xerox copies of ration card, election card and papers showing my age and I am suffering from ailment of kidney. (marked as Exhibit : 3000-A colly. )
12) Considering circumstances peculiar to me i.e. I was not involved in commission of terrorist act, my age and I am sick person, I may be given the lesser punishment.
73. The Designated Court considered all these factors while determining the sentence for the appellant. After considering the acts committed and the statement regarding the quantum of sentence, it was held:
809) On the aforesaid backdrop considering submission advanced by Ld. advocate Mr. HH Ponda for A-71 that considering character of evidence about guilt of accused i.e. the same being based upon the Disclosure Statement leading to recovery of huge contraband articles from a lavatory at a public place or quantity of material recovered denoting that the same were with A-71 merely for storage purpose and hence considering his age being of 65 years or he is a sick person minimum sentence as provided under law would be warranted does not appeal to mind after taking into consideration all the relevant circumstances relating to the offences for which A-71 has been found guilty. Such a conclusion is inevitable as a fact cannot be overlooked that A-71 was possessing such contraband material capable of causing mass destruction within the notified area. It needs no saying that the weapon of such a nature cannot be acquired and/or possessed without incurring any appreciable expenditure. Truly speaking possession of such a large quantity of contraband material with A-71 viewed from any angle i.e. either himself having acquired the same or somebody else having kept with him and taking into consideration the purpose for which the same can be said to have been possessed i.e. illegal use of same for illegal purpose would warrant levying the maximum punishment prescribed under law.
810) Thus after taking into consideration the gravity of acts committed by A-71, nature of material possessed by him but the same being not recovered from his house and the same being recovered from a unused lavatory in Musafirkhana but concealed at the said place, A-71 being not found involved in terrorist act and considering matters disclosed from clauses No. 1 to 12 in answer to relevant question asked to him while recording his statement upon quantum of sentence to be imposed i.e. at Exh.3000 i.e. his age, the ailments suffered by him, himself being not fully recovered, himself having faced legal proceedings for 13 years, himself having no antecedents, himself having not involved in any terrorist act, court having not received any adverse report about his conduct etc., during long drawn trial and having regard to sentence given to A-l07, 72 and few others having regard to quantity of contraband material possessed by them and the material possessed by A-71 sentence of RI for Life and a fine of Rs. l lakh with a suitable sentence of further RI in event of non-payment of fine for commission of offence u/s.5 of TADA and sentence of RI for life and a fine of Rs. 1 lakh with a suitable sentence of further RI in event of non-payment of fine for commission of offence u/s. 6 of TADA with no separate sentence for the reasons stated earlier for commission of offence under Sections 3 and 7 r/w Section 25 (1A) (1B)(a) of Arms Act for A-71 would serve the ends of justice. Needless to add that contraband material seized will require to be confiscated.
74. Learned counsel for the appellant submitted that under the facts and circumstances of the case, the Designated Court while sentencing the appellant erred in not striking a balance between doctrine of proportionality and doctrine of rehabilitation and according to him, the appellant was granted maximum punishment prescribed under Sections 5 and 6 of TADA whereas minimum punishment prescribed is 5 years. He further submitted that considering his age, ailment and conduct the appellant did not deserve the maximum punishment. He also pointed out that the appellant had already undergone a period of 8 (eight and a half) years approximately without remission.
75. It is relevant to note that even according to the prosecution, all the above mentioned goods though being smuggled, kept only in the open lavatory within the Musafirkhana. In other words, admittedly, the recovery was from an open and accessible place to all the persons visiting the Musafirkhana for any purpose including prayer or the persons staying therein. It is also relevant to point out that the prosecution failed to lead acceptable evidence to show that such recovered contrabands were used in any crime by the appellant and even the Designated Court came to the same finding. As per the proved charges under Sections 5 and 6 of TADA, the minimum punishment prescribed is 5 years and maximum is life sentence. Taking note of the age, ailments and conduct of the appellant as recorded by the Designated Court itself in Part 46 of the impugned judgment noted down while confirming the conviction, we feel that the appellant did not deserve the maximum sentence of life imprisonment. At the time of arguments, learned counsel for the appellant pointed out that as on date, the appellant is more than 70 years of age and is suffering from a number of ailments. About his medical condition and ailments, learned counsel has furnished all the details in Crl.MP No. 5225-5226 of 2011 wherein it has been stated that the appellant is on liquid diet, he has no criminal antecedent and there is no adverse report with respect to him during the trial. It is also pointed out that the appellant has already undergone a period of 8 years (approximately) without remission. Taking note of all these aspects, we feel that while confirming the conviction, ends of justice would be met by reducing the sentence of the appellant to RI for 10 years.
76. Consequently, we dispose of the appeals filed by the appellant (A-71) while confirming the conviction and reduce the sentence to RI for 10 years. The appeal filed by the State in respect of acquittal ordered by the Designated Court relating to the common charge of conspiracy is also dismissed.
