Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) Vs. The State of Maharashtra, Through STF, CB
EmailAppeal: Criminal Appeal Nos. 651-652 of 2008
Petitioner: Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)
Respondent: The State of Maharashtra, Through STF, CBI Mumbai
Apeal: Criminal Appeal Nos. 651-652 of 2008
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
TADA Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 304, 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 under Bombay blast case Role and involvement of accused Dawood (A14) Charge of conspiracy, murder, etc. Evidence against him Appreciation of Evidence comprising of his own confession, recorded under due procedure Statement corroborated by confessions of co-conspirators viz., A11, A12, A15, A17, A18, A24, A25, A28, A42, A46, A61, A62, A64, A82, A90, A100 and A128 Further corroboration by approver and other PWs Evidence of his travelling abroad and also of recoveries proving presence of RDX. Held that charges against him are proved. Conviction and sentence affirmed.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 304, 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 under Bombay blast case Role and involvement of accused Dawood (A14) Charge of conspiracy, murder, etc. Evidence against him Appreciation of Evidence comprising of his own confession, recorded under due procedure Statement corroborated by confessions of co-conspirators viz., A11, A12, A15, A17, A18, A24, A25, A28, A42, A46, A61, A62, A64, A82, A90, A100 and A128 Further corroboration by approver and other PWs Evidence of his travelling abroad and also of recoveries proving presence of RDX. Held that charges against him are proved. Conviction and sentence affirmed.
Held:
On perusal of the aforesaid confessional statement of the appellant (A-14), the following facts emerge:
(i) The appellant had participated in the conspiratorial meeting with Dawood Ibrahim (AA) and Tiger Memon on 19.01.1993 in Dubai.
(ii) In the said meeting, the appellant had agreed to arrange for the landing of arms and ammunitions and explosives which were to be smuggled into India.
(iii) The appellant participated and organised the landing of arms at Shekhadi with the help of other co-accused persons.
(iv) He was fully conscious that those arms and ammunitions and explosives were to be used for carrying out terrorist acts in order to take revenge for the demolition of Babri Masjid. (Para 302)
On perusal of the abovesaid confession, it is established that the appellant played a key role in effecting and organizing landing of arms and ammunitions and explosive substances and was actively involved with Tiger Memons illegal and nefarious activities on regular basis. He attended a conspiratorial meeting with Dawood Ibrahim and Tiger Memon wherein he agreed to arrange for landing of arms and ammunitions and explosives which were to be used for committing terrorist acts. (Para 304)
The fact that the appellant had knowledge about the contents of the boxes/parcels is clear from his own confession wherein he has stated that he was present at the time when rifles, pistols, bullets, detonators, hand grenades etc. were being unloaded from the boxes at Waghani Tower and further that Tiger Memon had shown him a pencil like thing and told him that it was worth Rs. 25,000/- and it could even explode Oberoi Hotel. From the above, it is very much clear that the appellant was not mere a landing agent. It is thus established that he was a conspirator whose primary role was smooth landing of the said arms and ammunitions and explosives. (Para 305)
A perusal of the confessional statements of all the above accused, viz., A-11, A-12, A-15, A-17, A-18, A-24, A-25, A-28, A-42, A-46, A-61, A- 62, A-64, A-82, A-90, A-100 and A-128 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-14). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) The appellant was closely associated with Tiger Memon and used to make arrangements for landing of goods smuggled by him.
(ii) The appellant actively participated and organised the said landings of arms and ammunitions, and explosives at Shekhadi and also rendered assistance for its safe transportation.
(iii) The appellant was present at the landing site as well as at the Tower where the arms and ammunitions and explosives were shifted in false cavities.
(iv) The appellant attended conspiratorial meeting at Dubai.
(v) The appellant worked in close association with Tiger Memon and also paid the people for the services rendered by them.
(vi) The appellant held a commanding position and also had people who worked for him.
(vii) The appellant was not under threat or coercion and all his actions were voluntary. He worked in pursuance of the conspiracy to achieve the common object.
(ix) The appellant was also managing government servants by giving them bribe on behalf of Tiger Memon which shows his closeness with Tiger Memon.
(x) The bribe was being paid to the officials by the appellant on behalf of Tiger Memon for the said landings at Shekhadi.
(xi) The appellant was in the core group of primary conspirators. It is not that he merely participated in the landings as an agent, on the contrary, he participated in the landings after being fully agreeable to the ultimate object of the conspiracy.
(xii) His role in achieving the ultimate object of the conspiracy was very crucial and decisive. (Para 307)
A perusal of the entire evidence on record shows that no other hypothesis is possible than to conclude that he willingly participated and assisted Dawood Ibrahim and Tiger Memon in smuggling of large quantity of weapons, ammunitions and explosives of mass destruction which ultimately resulted in huge destruction shocking to the very conscience. If the role of the appellant is seen in the light of his agreement, understanding and his consciousness of the ultimate use of the smuggled arms and ammunitions and explosives, the culpability of the appellant is no less than Tiger Memon. All the other co-accused persons in their confessional statements asserted that the appellant acted not only as a landing agent but he was also aware of the arms and ammunitions and was himself in possession of the same. Further, it has also come in evidence that he was aware of all the activities of Tiger Memon. (Para 314)
The appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement he has committed the offences for which he has been charged. (Para 315)
JUDGEMENT:
JUDGMENT
296. Mr. Priyadarshi Manish, learned counsel appeared for the appellant (A-14) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
297. The present appeals are directed against the final judgment and order of conviction and sentence dated 22.09.2006 and 30.05.2007 respectively, whereby the appellant (A-14) 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.
Charges:
298. 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 hand-grenades at Machhimar 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.
298.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; The accused committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He attended the conspiratorial meeting with Dawood Ibrahim Kaskar and Tiger Memon at Dubai on 19.01.1993 wherein he agreed to arrange for landing of arms, ammunitions and explosives in India to be used for committing terrorist acts;
(b) He participated in both the landings at Shekhadi, which was organized by Tiger Memon and his associates between 02- 09.02.1993;
At head Thirdly; The appellant, by committing the aforesaid acts, committed an offence punishable under Section 6 of the TADA.
299. The Designated Court found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years for commission of offence under Section 3(3) of TADA and Section 120B of the IPC. (charge firstly).
ii) The appellant has been convicted for commission of offences under Section 3(3) of TADA mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs.50,000/-, in default, to further undergo RI for 1 year. (charge secondly).
iii) The appellant has been convicted and sentenced to RI for life alongwith a fine of Rs.50,000/-, in default, to further undergo RI for a period of 1 year for commission of offences under Section 6 of TADA (charge thirdly).
Evidence
300. The evidence against the appellant (A-14) 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) documentary evidence.
Confessional statement of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)
301. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement is summarized hereinbelow:-
(i) The appellant along with Sharif Abdul Gafoor Parkar (A-17) and Rahim Abbas Karamblekar @ Rahim Laundrywala (A-40) – who died on 14.12.1993 before the charges were framed, was working for Tiger Memon in effecting the landings of smuggled items.
(ii) On 19.01.1993, as per Tigers instructions, the appellant travelled to Dubai from Bombay via flight where he met him (Tiger Memon) at Dubai Airport. Tiger asked him to stay at Hotel Delhi Darbar. After 2-3 days, Tiger took him to the residence of Dawood Ibrahim.
(iii) At that time, Dawood Ibrahim asked the appellant if he could arrange for landing of chemicals i.e., gun powder and weapons which would be smuggled into India and also told him that they have to take revenge for the demolition of Babri Masjid. He then asked Tiger the cost for arranging the explosives who replied that it would be 9-10 lakhs.
(iv) The appellant agreed to arrange for the landing of the arms, explosives and ammunitions.
(v) On the next day, at Dubai Airport, Tiger reiterated him to take care of the arrangements as told to him by Dawood Ibrahim and also that he (Tiger) will inform about further course of action after reaching Bombay.
(vi) Thereafter, he returned to Bombay on 23.01.1993. After 5-6 days, he briefed his partners Rahim Laundrywala and Sharif Abdul Gafoor Parker @ Dadabhai (A-17) individually about the meeting with Dawood Ibrahim in Dubai and they both agreed to do the work.
(vii) Thereafter, in the end of January, on Shafis instructions, he made arrangements for the landing at Shekhadi but the consignment did not arrive.
(viii) On 3rd February, 1993, he got to know that landing was to take place in the evening and, accordingly, he told A-40 to make arrangements for the same. He also discussed about the landing with the customs officials at Mhasla and told them that they would be given Rs. 1.6 lakh as fixed earlier after completion of work.
(ix) Around 8-9 p.m., he reached the spot of landing where many other persons were already present. At around 10 p.m., Tiger came there along with Anwar, Parvez Nazir Ahmed Shaikh (A-12) and 20-25 other persons.
(x) The appellant saw that the guns were being unloaded from the trawlers that had arrived and were subsequently loaded in a truck.
(xi) After the loading, he along with Tiger and others went to Waghani Tower.
(xii) The cargo was unloaded from the truck at Waghani Tower and he saw that rifles, pistols, bullets, hand grenades and explosives were being taken out from the boxes by Tigers men.
(xiii) Tiger also showed him a pencil like thing and told him that it was worth Rs. 25,000/- and it could even explode Oberoi Hotel
(xiv) After 2-3 days, he was paid Rs. 1 lakh for the above work which was delivered at his residence by Abdul Gani Ismail Turk (A-11).
(xv) On 08.02.1993, he collected 3 rifles and 6 magazines from the residence of Muzammil Umar Kadri (A-25) on the instructions of Tiger Memon and delivered the same to Tiger along with two other persons.
(xvi) On the same day, in the night, he assisted Tiger Memon in the landing of Kala Sabun at Shekhadi alongwith co-accused Salim Rahim Shaikh (A-52), Khalil Ahmed Sayed Ali Nasir (A-42), Anwar Theba (AA), A-17, A-12, A-11, Shaikh Ali Shaikh Umar (A-57), Shahjahan Ibrahim Shaikhdare (A-56), Abbas (A-33), Mohammed Iqbal Mohammed Yusuf Shaikh (A-23), A-25, Shafi (AA) and others.
(xvii) For the above work, he received Rs. 9 lakhs from Shafi and Rs. 5 lakhs from A-17. The details of the amount paid by him to the officials of Customs Department, various police officers and other private persons, who assisted in the above landings are also available in his confession.
302. On perusal of the aforesaid confessional statement of the appellant (A-14), the following facts emerge:
(i) The appellant had participated in the conspiratorial meeting with Dawood Ibrahim (AA) and Tiger Memon on 19.01.1993 in Dubai.
(ii) In the said meeting, the appellant had agreed to arrange for the landing of arms and ammunitions and explosives which were to be smuggled into India.
(iii) The appellant participated and organised the landing of arms at Shekhadi with the help of other co-accused persons.
(iv) He was fully conscious that those arms and ammunitions and explosives were to be used for carrying out terrorist acts in order to take revenge for the demolition of Babri Masjid.
303. Mr. Manish, learned counsel for the appellant contended that the appellant was merely a landing agent and he had nothing to do with the said conspiratorial meeting at Dubai and that he had gone to Dubai only to meet his relatives and was not aware about the contents of the bags which had landed on the Shekhadi coast.
304. On perusal of the abovesaid confession, it is established that the appellant played a key role in effecting and organizing landing of arms and ammunitions and explosive substances and was actively involved with Tiger Memons illegal and nefarious activities on regular basis. He attended a conspiratorial meeting with Dawood Ibrahim and Tiger Memon wherein he agreed to arrange for landing of arms and ammunitions and explosives which were to be used for committing terrorist acts.
305. It was also contended on behalf of the appellant that he was not aware of the contents of the boxes/parcels for which the said landing was done at Shekhadi. The fact that the appellant had knowledge about the contents of the boxes/parcels is clear from his own confession wherein he has stated that he was present at the time when rifles, pistols, bullets, detonators, hand grenades etc. were being unloaded from the boxes at Waghani Tower and further that Tiger Memon had shown him a pencil like thing and told him that it was worth Rs. 25,000/- and it could even explode Oberoi Hotel. From the above, it is very much clear that the appellant was not mere a landing agent. It is thus established that he was a conspirator whose primary role was smooth landing of the said arms and ammunitions and explosives.
Confessional Statements of co-accused:
306. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-14) are summarized hereinbelow:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
306.1 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (1:15 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the confession made by A-11 with reference to the appellant is reproduced below:
(i) The appellant assisted Tiger Memon in his smuggling activities and mainly in the landing of smuggled goods.
(ii) The appellant participated in the landing of arms and ammunitions and explosives at Shekhadi on 03.02.1993.
(iii) On 08/09.02.1993, Tiger Memon instructed A-11 to go along with other accused, viz., Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rahman Shaikh (A-28) to get the Kala Sabun (RDX) from Mhasla and for this purpose he further instructed him to pay Rs. 1 lakh to the appellant. Accordingly, the said amount was paid to the appellant and Kala Sabun was loaded in a tempo in the evening.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
306.2 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (6:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the confession made by A-12 with reference to the appellant is reproduced below:
(i) The appellant along with other co-accused persons assisted Tiger in the landing of rifles, revolvers, bullets, wire bundles and black soap on 03.02.1993 at Shekhadi and further in the transportation of the same to the Waghani Tower and then to Bombay.
(ii) He also assisted in the second landing operation at Shekhadi which took place in the second week of February, 1993 after which the consignment was taken to the Tower and, thereafter, to Bombay with his assistance.
Confessional Statement of Imtiaz Yunus Miyan Ghavate (A-15)
306.3 Confessional statements of A-15 under Section 15 of TADA has been recorded on 07.05.1993 (12:00 hrs.) and 09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay A brief summary of the confession made by A-15 with reference to the appellant is reproduced below:
(i) The appellant, A-17 and A-40 were the landing agents of Tiger Memon who assisted him in smuggling the silver sent by his brothers in Dubai.
(ii) The appellant actively participated in the first landing at Shekhadi.
Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
306.4 Confessional statement of A-17 under Section 15 of TADA has been recorded on 18.04.1993 (00:15 hrs.) and 20.04.1993 (02:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) The appellant was a close associate of Tiger Memon and was handling the landing activities of smuggled goods (like silver) for Tiger Memon.
(ii) The appellant participated in the first landing operation at Shekhadi and transportation of the arms and explosives to Waghani Tower.
(iii) He (A-17) alongwith the appellant burnt the empty gunny bags and boxes which contained the above arms and ammunitions.
(iv) The appellant participated in the second landing operation at Shekhadi.
(v) He (A-17) narrated his conversation with the appellant about his meeting with Dawood Ibrahim in Dubai regarding smuggling of chemicals for taking revenge against Hindus for the demolition of Babri Masjid.
(vi) He also stated about the receipt of Rs. 9 lacs by the appellant from Shafi for the above landing operations.
(vii) He has stated about the distribution of money to Police/Customs officials.
Confessional Statement of Suleman Mohd. Kasam Ghavate (A-18)
306.5 Confessional statement of A-18 under Section 15 of TADA has been recorded by Shri Sanjay Pandey (PW-492) and Shri UM Kale (PW-190). The said confession reveals as under:
(i) On 06.02.1993, when the appellant alongwith A-17 was present there, A-18 was assisting in loading 59 to 63 packets in a tempo bearing No. MMP 4799.
(ii) Tiger instructed A-18 to go to the appellants house and leave the said tempo at his place.
(iii) On 8th or 9th February, 1993, he went to Mhasla tower in a tempo where the appellant was present alongwith Tiger and others. The goods were loaded in the said tempo and he was asked to take the said tempo to Mahad.
Confessional Statement of Manoj Kumar Bhanwar Lal Gupta (A-24)
306.6 Confessional statement of A-24 under Section 15 of TADA has been recorded on 30.04.1993 (16:15 hrs.) and 09.05.1993 (19:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals that the appellant participated in the landing of rifles, pistols, hand grenades and black soap at Shekhadi on 02/03.02.1993
Confessional Statement of Muzammil Umar Kadri (A-25)
306.7 Confessional statement of A-25 under Section 15 of TADA was recorded on 17.04.1993 (14:00 hrs.) and 20.04.1993 (12:50 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals as under:
(i) The appellant used to do the work of unloading of smuggled goods for Tiger Memon
(ii) In or around March/April 1992 and also in August, 1992, he had assisted the appellant in unloading silver for Tiger Memon for which he received Rs. 1,200/- and Rs. 1,500/- respectively.
(iii) The appellant participated in the landing operations at Shekhadi that took place on 3rd February and 9th February, 1993.
Confessional Statement of Sayyed Abdul Rehman Kamruddin Syed (A-28)
306.8 Confessional statement of A-28 under Section 15 of TADA has been recorded on 18.04.1993 (17:00 hrs.) and 01.05.1993 (23:30 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confessional statement reveals that on 05.02.1993, at the instance of the appellant and A-17, about 55-60 sacks filled with something were dug out from a pit and, thereafter, loaded in a tempo.
Confessional Statement of Khalil Ahmed Sayyed Ali Nazir (A-42)
306.9 Confessional statement of A-42 under Section 15 of TADA was recorded by Shri P.D. Pawar (PW-185). The said confession reveals as under:
(i) A-42 started doing smuggling of silver and entered into smuggling activity at the behest of the appellant whom he knew even prior to 1983. The smuggling was mainly done for Tiger Memon.
(ii) The appellant was a close associate of Tiger Memon.
(iii) The appellant was involved in the landing of arms, hand grenades and explosives on 03.02.1993 at Shekhadi.
(iv) On 22.03.1993, the appellant gave him a bag containing two revolvers for keeping it with him which were subsequently recovered by the police after his arrest.
Confessional Statement of Mohd Rafiq Musa Miariwala @ Rafiq Madi (A-46)
306.10 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-46 in his confession stated that the appellant participated in the landing that took place at Shekhadi on 03.02.1993
Confessional Statement of Sujjad Alam Abdul Hakim Nazir (A-61)
306.11 Confessional statement of A-61 under Section 15 of TADA was recorded by Shri Krishan Lal Bishnoi (PW-193). The said confession reveals as under:
(i) The appellant participated in the landing of arms and ammunitions at Shekhadi beach on 03.02.1993 and in the transportation of the goods to the Tower.
(ii) On 09.02.1993, the appellant alongwith A-61 and others picked up 3 rifles and 6 cassettes from Muzammil Umar Kadri (A-25) and handed them over to Tiger near Lonar Phata.
(iii) The appellant also participated in the second landing of arms and ammunitions at Shekhadi on 09.02.1993, and in their transportation to the Tower.
(iv) A-61 received Rs. 4,000/- from the appellant for both the landings.
Confessional Statement of Tulsiram Dhondu Surve (A-62)
306.12 Confessional statement of A-62 under Section 15 of TADA has been recorded by Shri T.S. Bhal (PW-191). The said confession reveals as under:
(i) The appellant was a close associate of Tiger Memon.
(ii) In or around 1992, the appellant, along with Tiger Memon, had approached him to allow them to keep the silver smuggled by them at the Microwave station, atop the hill of Waghani village, for some consideration (bribe), to which he consented.
(iii) The appellant had assisted Tiger Memon in the smuggling activity that was carried out at Waghani Tower and bribe was also paid to A-62 and others for the same.
(iv) On 03rd February and 7th February, the appellant alongwith Tiger Memon and others was present at Waghani Tower while the smuggled RDX and arms and ammunitions were brought from Shekhadi and unloaded and reloaded in the vehicles brought from Bombay. The appellant actively participated in the above activity.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
306.13 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri H.C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confession reveals as under:
(i) The appellant participated in the first and second landing at Shekhadi.
(ii) The appellant had arranged for and deployed labour during the said landing operations.
Confessional Statement of Jayant Keshav Gurav (A-82)
306.14 Confessional statement of A-82 under Section 15 of TADA has been recorded by T.S. Bhal (PW-191). The confession reveals that the appellant was a landing agent of Tiger Memon and was engaged in his smuggling activities.
Confessional Statement of Mohd. Sultan Sayyed (A-90)
306.15 Confessional statement of A-90 under Section 15 of TADA has been recorded by Shri C Prabhakar (PW-186). The said co-accused was the Superintendent, Custom Marine Preventive, Alibaug Circle. His confession reveals as under:
(i) On 29.01.1993, the appellant met Shri R.K. Singh, Assistant Collector at the Guest house in Hareshwar village.
(ii) On 12.02.1993, the appellants son handed over a plastic bag containing Rs. 3 lakhs to Shri Singh, Assistant Collector.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
306.16 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confession reveals the active participation of the appellant in the landing of arms and ammunitions, explosives and detonators on 09.02.1993 at Shekhadi coast and, thereafter, in the transportation of the said consignments to Waghani Tower.
Confessional Statement of Shahnawaz Khan Faiz Mohammed Khan (A-128)
306.17 His confessional statement under Section 15 of TADA has been recorded by H.C. Singh (PW-474). His confession also reveals the participation of the appellant in the landing and transportation of arms and ammunitions and explosives at Shekhadi.
307. A perusal of the confessional statements of all the above accused, viz., A-11, A-12, A-15, A-17, A-18, A-24, A-25, A-28, A-42, A-46, A-61, A- 62, A-64, A-82, A-90, A-100 and A-128 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-14). After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) The appellant was closely associated with Tiger Memon and used to make arrangements for landing of goods smuggled by him.
(ii) The appellant actively participated and organised the said landings of arms and ammunitions, and explosives at Shekhadi and also rendered assistance for its safe transportation.
(iii) The appellant was present at the landing site as well as at the Tower where the arms and ammunitions and explosives were shifted in false cavities.
(iv) The appellant attended conspiratorial meeting at Dubai.
(v) The appellant worked in close association with Tiger Memon and also paid the people for the services rendered by them.
(vi) The appellant held a commanding position and also had people who worked for him.
(vii) The appellant was not under threat or coercion and all his actions were voluntary. He worked in pursuance of the conspiracy to achieve the common object.
(ix) The appellant was also managing government servants by giving them bribe on behalf of Tiger Memon which shows his closeness with Tiger Memon.
(x) The bribe was being paid to the officials by the appellant on behalf of Tiger Memon for the said landings at Shekhadi.
(xi) The appellant was in the core group of primary conspirators. It is not that he merely participated in the landings as an agent, on the contrary, he participated in the landings after being fully agreeable to the ultimate object of the conspiracy.
(xii) His role in achieving the ultimate object of the conspiracy was very crucial and decisive.
Deposition of Prosecution Witnesses:
308. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
308.1 The relevant material in his evidence is as follows:-
(i) PW-2 knew the appellant as Dawood Taklya
(ii) PW-2 identified the appellant before the court in dock proceedings.
(iii) The appellant was present in the hut at Shekhadi and in his (PW-2) presence, Tiger Memon with the help of the appellant and others present there, opened 7 bags which contained guns, pistols and grenades.
(iv) The appellant and Dadabhais (A-17) men assisted in unloading the arms and ammunitions from the boats and reloading them in the truck.
(v) The boxes in which arms and ammunitions were brought from Shekhadi were burnt by the appellant, A-17 and his son in the backyard at the instance of Tiger Memon.
(vi) Tiger Memon also instructed the appellant to conceal some boxes of Kala Sabun.
(vii) The appellant was present at Shekhadi at the time of landing and his men unloaded and loaded them in a Tempo.
309. The aforesaid deposition fully establishes the charges framed against the appellant. It is further submitted that the testimony of PW-2 also corroborates with the confessions of the co-accused as well as the confession of the appellant.
Travel to Dubai to attend Conspiratorial Meeting
310. The prosecution submitted that the appellant travelled to Dubai from Bombay on 19.01.1993 and returned on 23.01.1993. The departure and arrival details of the appellant have been proved by P.R. Patil (PW-242) and S.S. Chaudhary (PW-223), Immigration Officers, which are as under:-
Deposition of P.R. Patil (PW-242)
310.1 He was on Immigration duty on 19.01.1993. The relevant entries on the Embarkation Card (X-398) concerning the departure have been marked as Exh. Nos. 1050, 1050-A and 1050-A(1).
Deposition of S.S. Chaudhary (PW-223)
310. 2 The arrival of the appellant to India from Dubai has been proved by PW-223 who was on Immigration duty on 23.01.1993. The relevant endorsements on the Disembarkation Card (X-349) have been marked as Exh. Nos. 989 and 989A.
Deposition of Subhash Udyawar (PW-441)
310. 3 PW-441 was an employee of M/s East West Travel and Tours Pvt. Ltd. and has deposed regarding the reservation of flight tickets for the appellant to Dubai at the instance of A-1. On perusal of the above, it can easily be inferred that:-
(i) The appellant had been to Dubai on 19.01.1993 and returned Bombay on 23.01.1993.
(ii) The departure and arrival details have been further corroborated by PWs-242 and 223.
(iii) The tickets of the appellant were arranged by A-1, who is a co-conspirator and brother of prime accused, Tiger Memon.
Presence of the accused at Waghani Tower
Deposition of Harish Chandra Laxman Surve (PW-108)
311. PW-108 was a watchman at the Waghani Tower who deposed as under:
(i) Tulsiram Dhondu Surve (A-62) and Vijay Goving More (PW-137) were also working alongwith him at Waghani Tower in 1992/1993.
(ii) On 03.02.1993, the said witness was on duty at Waghani Tower.
(iii) He was told by A-62 that a party of the appellant was to arrive from Mhasla in the night.
(iv) At 9.00 p.m., one Maruti Van, one motorcycle and one jeep arrived at Waghani Tower.
(v) The appellant was present in the aforesaid jeep.
Deposition of Vijay Goving More (PW-137)
311.1 PW-137 was a labourer at Waghani Tower who deposed as under:
(i) A-62 and PW-108 were working as watchman at the Tower.
(ii) At 9.30 p.m., a Maruti Car came at Waghani Tower. Three persons were occupying the said car. Sarfaraj Phanse was one of the three. Sarfaraj gave a call to A-62 and told him to make arrangements for tea by telling that their persons had arrived.
(iii) One person out of the three, left in the car and returned alongwith nine to ten persons.
(iv) Tiger Memon, Dawood Phanse and others were amongst the said nine persons.
(v) All the persons then left and around 11 p.m., one truck, one tempo and two jeeps arrived at the Tower. The appellant was present in the jeep along with others.
(vi) All the said persons went away after goods were loaded in the Tempo and the Truck.
(vii) In a similar manner, in February, 1993, A-62 told PW-137 that the goods of the appellant were to arrive.
(viii) After 11 p.m., one truck, two jeeps and a tempo arrived at Waghani Tower and the appellant was seated in the jeep.
(ix) Thereafter, unloading of goods from the trucks commenced.
(x) Again, after 4/5 days, A-62 told PW-137 that goods of the appellant were to arrive.
(xi) PW-137 identified the appellant in the court.
312. On perusal of the aforesaid deposition, it is clearly discernible that:
(i) The appellant was present at Waghani Tower when the goods were being loaded and unloaded.
(ii) The deposition of PW-137 also lends credence to the deposition of PW-108 that the appellant was seated in the jeep which came to the Tower filled with the goods.
(iii) The said evidence read with the substantive evidence of abovesaid confessions clearly, beyond all reasonable doubt, proved his fatal presence at the Tower when the arms and ammunitions and explosives smuggled to this country were being unpacked and reloaded.
Other Witnesses:
Deposition of Ravindra Vaskar Sawant (PW-145)
313. PW-145 is a resident of Kanghar and runs a grocery shop and acted as a panch witness.
(i) He saw the powder like substance on the land within the campus of Waghani Tower;
(ii) He also saw the burnt cardboards at the site and their ashes lying nearby;
(iii) The samples of the powder as well as of the said ashes were collected by the police in his presence.
Deposition of Vyankatesh Hirba (PW-588)
313.1 He was a police officer attached with the State Intelligence Department, Panvel. He deposed that he went to Waghani Tower and collected samples of earth and ashes from the said place. Panchnama Exh. 660 was prepared by him. The samples were forwarded for examination to FSL, Bombay by Shashikant Chavan (PW-676). The FSL report (Exh. 2154 colly) confirmed the presence of RDX in the samples.
314. A perusal of the entire evidence on record shows that no other hypothesis is possible than to conclude that he willingly participated and assisted Dawood Ibrahim and Tiger Memon in smuggling of large quantity of weapons, ammunitions and explosives of mass destruction which ultimately resulted in huge destruction shocking to the very conscience. If the role of the appellant is seen in the light of his agreement, understanding and his consciousness of the ultimate use of the smuggled arms and ammunitions and explosives, the culpability of the appellant is no less than Tiger Memon. All the other co-accused persons in their confessional statements asserted that the appellant acted not only as a landing agent but he was also aware of the arms and ammunitions and was himself in possession of the same. Further, it has also come in evidence that he was aware of all the activities of Tiger Memon. Even if we consider his age, he has not made out a case for any leniency in the sentence part.
315. Therefore, in view of the above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement he has committed the offences for which he has been charged and we are not inclined to interfere with the conviction and sentence awarded by the Designated Court. Consequently, the appeals are liable to be dismissed.
296. Mr. Priyadarshi Manish, learned counsel appeared for the appellant (A-14) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
297. The present appeals are directed against the final judgment and order of conviction and sentence dated 22.09.2006 and 30.05.2007 respectively, whereby the appellant (A-14) 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.
Charges:
298. 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 hand-grenades at Machhimar 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.
298.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; The accused committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He attended the conspiratorial meeting with Dawood Ibrahim Kaskar and Tiger Memon at Dubai on 19.01.1993 wherein he agreed to arrange for landing of arms, ammunitions and explosives in India to be used for committing terrorist acts;
(b) He participated in both the landings at Shekhadi, which was organized by Tiger Memon and his associates between 02- 09.02.1993;
At head Thirdly; The appellant, by committing the aforesaid acts, committed an offence punishable under Section 6 of the TADA.
299. The Designated Court found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life alongwith a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years for commission of offence under Section 3(3) of TADA and Section 120B of the IPC. (charge firstly).
ii) The appellant has been convicted for commission of offences under Section 3(3) of TADA mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs.50,000/-, in default, to further undergo RI for 1 year. (charge secondly).
iii) The appellant has been convicted and sentenced to RI for life alongwith a fine of Rs.50,000/-, in default, to further undergo RI for a period of 1 year for commission of offences under Section 6 of TADA (charge thirdly).
Evidence
300. The evidence against the appellant (A-14) 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) documentary evidence.
Confessional statement of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)
301. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement is summarized hereinbelow:-
(i) The appellant along with Sharif Abdul Gafoor Parkar (A-17) and Rahim Abbas Karamblekar @ Rahim Laundrywala (A-40) – who died on 14.12.1993 before the charges were framed, was working for Tiger Memon in effecting the landings of smuggled items.
(ii) On 19.01.1993, as per Tigers instructions, the appellant travelled to Dubai from Bombay via flight where he met him (Tiger Memon) at Dubai Airport. Tiger asked him to stay at Hotel Delhi Darbar. After 2-3 days, Tiger took him to the residence of Dawood Ibrahim.
(iii) At that time, Dawood Ibrahim asked the appellant if he could arrange for landing of chemicals i.e., gun powder and weapons which would be smuggled into India and also told him that they have to take revenge for the demolition of Babri Masjid. He then asked Tiger the cost for arranging the explosives who replied that it would be 9-10 lakhs.
(iv) The appellant agreed to arrange for the landing of the arms, explosives and ammunitions.
(v) On the next day, at Dubai Airport, Tiger reiterated him to take care of the arrangements as told to him by Dawood Ibrahim and also that he (Tiger) will inform about further course of action after reaching Bombay.
(vi) Thereafter, he returned to Bombay on 23.01.1993. After 5-6 days, he briefed his partners Rahim Laundrywala and Sharif Abdul Gafoor Parker @ Dadabhai (A-17) individually about the meeting with Dawood Ibrahim in Dubai and they both agreed to do the work.
(vii) Thereafter, in the end of January, on Shafis instructions, he made arrangements for the landing at Shekhadi but the consignment did not arrive.
(viii) On 3rd February, 1993, he got to know that landing was to take place in the evening and, accordingly, he told A-40 to make arrangements for the same. He also discussed about the landing with the customs officials at Mhasla and told them that they would be given Rs. 1.6 lakh as fixed earlier after completion of work.
(ix) Around 8-9 p.m., he reached the spot of landing where many other persons were already present. At around 10 p.m., Tiger came there along with Anwar, Parvez Nazir Ahmed Shaikh (A-12) and 20-25 other persons.
(x) The appellant saw that the guns were being unloaded from the trawlers that had arrived and were subsequently loaded in a truck.
(xi) After the loading, he along with Tiger and others went to Waghani Tower.
(xii) The cargo was unloaded from the truck at Waghani Tower and he saw that rifles, pistols, bullets, hand grenades and explosives were being taken out from the boxes by Tigers men.
(xiii) Tiger also showed him a pencil like thing and told him that it was worth Rs. 25,000/- and it could even explode Oberoi Hotel
(xiv) After 2-3 days, he was paid Rs. 1 lakh for the above work which was delivered at his residence by Abdul Gani Ismail Turk (A-11).
(xv) On 08.02.1993, he collected 3 rifles and 6 magazines from the residence of Muzammil Umar Kadri (A-25) on the instructions of Tiger Memon and delivered the same to Tiger along with two other persons.
(xvi) On the same day, in the night, he assisted Tiger Memon in the landing of Kala Sabun at Shekhadi alongwith co-accused Salim Rahim Shaikh (A-52), Khalil Ahmed Sayed Ali Nasir (A-42), Anwar Theba (AA), A-17, A-12, A-11, Shaikh Ali Shaikh Umar (A-57), Shahjahan Ibrahim Shaikhdare (A-56), Abbas (A-33), Mohammed Iqbal Mohammed Yusuf Shaikh (A-23), A-25, Shafi (AA) and others.
(xvii) For the above work, he received Rs. 9 lakhs from Shafi and Rs. 5 lakhs from A-17. The details of the amount paid by him to the officials of Customs Department, various police officers and other private persons, who assisted in the above landings are also available in his confession.
302. On perusal of the aforesaid confessional statement of the appellant (A-14), the following facts emerge:
(i) The appellant had participated in the conspiratorial meeting with Dawood Ibrahim (AA) and Tiger Memon on 19.01.1993 in Dubai.
(ii) In the said meeting, the appellant had agreed to arrange for the landing of arms and ammunitions and explosives which were to be smuggled into India.
(iii) The appellant participated and organised the landing of arms at Shekhadi with the help of other co-accused persons.
(iv) He was fully conscious that those arms and ammunitions and explosives were to be used for carrying out terrorist acts in order to take revenge for the demolition of Babri Masjid.
303. Mr. Manish, learned counsel for the appellant contended that the appellant was merely a landing agent and he had nothing to do with the said conspiratorial meeting at Dubai and that he had gone to Dubai only to meet his relatives and was not aware about the contents of the bags which had landed on the Shekhadi coast.
304. On perusal of the abovesaid confession, it is established that the appellant played a key role in effecting and organizing landing of arms and ammunitions and explosive substances and was actively involved with Tiger Memons illegal and nefarious activities on regular basis. He attended a conspiratorial meeting with Dawood Ibrahim and Tiger Memon wherein he agreed to arrange for landing of arms and ammunitions and explosives which were to be used for committing terrorist acts.
305. It was also contended on behalf of the appellant that he was not aware of the contents of the boxes/parcels for which the said landing was done at Shekhadi. The fact that the appellant had knowledge about the contents of the boxes/parcels is clear from his own confession wherein he has stated that he was present at the time when rifles, pistols, bullets, detonators, hand grenades etc. were being unloaded from the boxes at Waghani Tower and further that Tiger Memon had shown him a pencil like thing and told him that it was worth Rs. 25,000/- and it could even explode Oberoi Hotel. From the above, it is very much clear that the appellant was not mere a landing agent. It is thus established that he was a conspirator whose primary role was smooth landing of the said arms and ammunitions and explosives.
Confessional Statements of co-accused:
306. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-14) are summarized hereinbelow:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
306.1 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (1:15 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the confession made by A-11 with reference to the appellant is reproduced below:
(i) The appellant assisted Tiger Memon in his smuggling activities and mainly in the landing of smuggled goods.
(ii) The appellant participated in the landing of arms and ammunitions and explosives at Shekhadi on 03.02.1993.
(iii) On 08/09.02.1993, Tiger Memon instructed A-11 to go along with other accused, viz., Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rahman Shaikh (A-28) to get the Kala Sabun (RDX) from Mhasla and for this purpose he further instructed him to pay Rs. 1 lakh to the appellant. Accordingly, the said amount was paid to the appellant and Kala Sabun was loaded in a tempo in the evening.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
306.2 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (6:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the confession made by A-12 with reference to the appellant is reproduced below:
(i) The appellant along with other co-accused persons assisted Tiger in the landing of rifles, revolvers, bullets, wire bundles and black soap on 03.02.1993 at Shekhadi and further in the transportation of the same to the Waghani Tower and then to Bombay.
(ii) He also assisted in the second landing operation at Shekhadi which took place in the second week of February, 1993 after which the consignment was taken to the Tower and, thereafter, to Bombay with his assistance.
Confessional Statement of Imtiaz Yunus Miyan Ghavate (A-15)
306.3 Confessional statements of A-15 under Section 15 of TADA has been recorded on 07.05.1993 (12:00 hrs.) and 09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay A brief summary of the confession made by A-15 with reference to the appellant is reproduced below:
(i) The appellant, A-17 and A-40 were the landing agents of Tiger Memon who assisted him in smuggling the silver sent by his brothers in Dubai.
(ii) The appellant actively participated in the first landing at Shekhadi.
Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
306.4 Confessional statement of A-17 under Section 15 of TADA has been recorded on 18.04.1993 (00:15 hrs.) and 20.04.1993 (02:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) The appellant was a close associate of Tiger Memon and was handling the landing activities of smuggled goods (like silver) for Tiger Memon.
(ii) The appellant participated in the first landing operation at Shekhadi and transportation of the arms and explosives to Waghani Tower.
(iii) He (A-17) alongwith the appellant burnt the empty gunny bags and boxes which contained the above arms and ammunitions.
(iv) The appellant participated in the second landing operation at Shekhadi.
(v) He (A-17) narrated his conversation with the appellant about his meeting with Dawood Ibrahim in Dubai regarding smuggling of chemicals for taking revenge against Hindus for the demolition of Babri Masjid.
(vi) He also stated about the receipt of Rs. 9 lacs by the appellant from Shafi for the above landing operations.
(vii) He has stated about the distribution of money to Police/Customs officials.
Confessional Statement of Suleman Mohd. Kasam Ghavate (A-18)
306.5 Confessional statement of A-18 under Section 15 of TADA has been recorded by Shri Sanjay Pandey (PW-492) and Shri UM Kale (PW-190). The said confession reveals as under:
(i) On 06.02.1993, when the appellant alongwith A-17 was present there, A-18 was assisting in loading 59 to 63 packets in a tempo bearing No. MMP 4799.
(ii) Tiger instructed A-18 to go to the appellants house and leave the said tempo at his place.
(iii) On 8th or 9th February, 1993, he went to Mhasla tower in a tempo where the appellant was present alongwith Tiger and others. The goods were loaded in the said tempo and he was asked to take the said tempo to Mahad.
Confessional Statement of Manoj Kumar Bhanwar Lal Gupta (A-24)
306.6 Confessional statement of A-24 under Section 15 of TADA has been recorded on 30.04.1993 (16:15 hrs.) and 09.05.1993 (19:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals that the appellant participated in the landing of rifles, pistols, hand grenades and black soap at Shekhadi on 02/03.02.1993
Confessional Statement of Muzammil Umar Kadri (A-25)
306.7 Confessional statement of A-25 under Section 15 of TADA was recorded on 17.04.1993 (14:00 hrs.) and 20.04.1993 (12:50 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals as under:
(i) The appellant used to do the work of unloading of smuggled goods for Tiger Memon
(ii) In or around March/April 1992 and also in August, 1992, he had assisted the appellant in unloading silver for Tiger Memon for which he received Rs. 1,200/- and Rs. 1,500/- respectively.
(iii) The appellant participated in the landing operations at Shekhadi that took place on 3rd February and 9th February, 1993.
Confessional Statement of Sayyed Abdul Rehman Kamruddin Syed (A-28)
306.8 Confessional statement of A-28 under Section 15 of TADA has been recorded on 18.04.1993 (17:00 hrs.) and 01.05.1993 (23:30 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confessional statement reveals that on 05.02.1993, at the instance of the appellant and A-17, about 55-60 sacks filled with something were dug out from a pit and, thereafter, loaded in a tempo.
Confessional Statement of Khalil Ahmed Sayyed Ali Nazir (A-42)
306.9 Confessional statement of A-42 under Section 15 of TADA was recorded by Shri P.D. Pawar (PW-185). The said confession reveals as under:
(i) A-42 started doing smuggling of silver and entered into smuggling activity at the behest of the appellant whom he knew even prior to 1983. The smuggling was mainly done for Tiger Memon.
(ii) The appellant was a close associate of Tiger Memon.
(iii) The appellant was involved in the landing of arms, hand grenades and explosives on 03.02.1993 at Shekhadi.
(iv) On 22.03.1993, the appellant gave him a bag containing two revolvers for keeping it with him which were subsequently recovered by the police after his arrest.
Confessional Statement of Mohd Rafiq Musa Miariwala @ Rafiq Madi (A-46)
306.10 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-46 in his confession stated that the appellant participated in the landing that took place at Shekhadi on 03.02.1993
Confessional Statement of Sujjad Alam Abdul Hakim Nazir (A-61)
306.11 Confessional statement of A-61 under Section 15 of TADA was recorded by Shri Krishan Lal Bishnoi (PW-193). The said confession reveals as under:
(i) The appellant participated in the landing of arms and ammunitions at Shekhadi beach on 03.02.1993 and in the transportation of the goods to the Tower.
(ii) On 09.02.1993, the appellant alongwith A-61 and others picked up 3 rifles and 6 cassettes from Muzammil Umar Kadri (A-25) and handed them over to Tiger near Lonar Phata.
(iii) The appellant also participated in the second landing of arms and ammunitions at Shekhadi on 09.02.1993, and in their transportation to the Tower.
(iv) A-61 received Rs. 4,000/- from the appellant for both the landings.
Confessional Statement of Tulsiram Dhondu Surve (A-62)
306.12 Confessional statement of A-62 under Section 15 of TADA has been recorded by Shri T.S. Bhal (PW-191). The said confession reveals as under:
(i) The appellant was a close associate of Tiger Memon.
(ii) In or around 1992, the appellant, along with Tiger Memon, had approached him to allow them to keep the silver smuggled by them at the Microwave station, atop the hill of Waghani village, for some consideration (bribe), to which he consented.
(iii) The appellant had assisted Tiger Memon in the smuggling activity that was carried out at Waghani Tower and bribe was also paid to A-62 and others for the same.
(iv) On 03rd February and 7th February, the appellant alongwith Tiger Memon and others was present at Waghani Tower while the smuggled RDX and arms and ammunitions were brought from Shekhadi and unloaded and reloaded in the vehicles brought from Bombay. The appellant actively participated in the above activity.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
306.13 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri H.C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confession reveals as under:
(i) The appellant participated in the first and second landing at Shekhadi.
(ii) The appellant had arranged for and deployed labour during the said landing operations.
Confessional Statement of Jayant Keshav Gurav (A-82)
306.14 Confessional statement of A-82 under Section 15 of TADA has been recorded by T.S. Bhal (PW-191). The confession reveals that the appellant was a landing agent of Tiger Memon and was engaged in his smuggling activities.
Confessional Statement of Mohd. Sultan Sayyed (A-90)
306.15 Confessional statement of A-90 under Section 15 of TADA has been recorded by Shri C Prabhakar (PW-186). The said co-accused was the Superintendent, Custom Marine Preventive, Alibaug Circle. His confession reveals as under:
(i) On 29.01.1993, the appellant met Shri R.K. Singh, Assistant Collector at the Guest house in Hareshwar village.
(ii) On 12.02.1993, the appellants son handed over a plastic bag containing Rs. 3 lakhs to Shri Singh, Assistant Collector.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
306.16 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confession reveals the active participation of the appellant in the landing of arms and ammunitions, explosives and detonators on 09.02.1993 at Shekhadi coast and, thereafter, in the transportation of the said consignments to Waghani Tower.
Confessional Statement of Shahnawaz Khan Faiz Mohammed Khan (A-128)
306.17 His confessional statement under Section 15 of TADA has been recorded by H.C. Singh (PW-474). His confession also reveals the participation of the appellant in the landing and transportation of arms and ammunitions and explosives at Shekhadi.
307. A perusal of the confessional statements of all the above accused, viz., A-11, A-12, A-15, A-17, A-18, A-24, A-25, A-28, A-42, A-46, A-61, A- 62, A-64, A-82, A-90, A-100 and A-128 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-14). After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) The appellant was closely associated with Tiger Memon and used to make arrangements for landing of goods smuggled by him.
(ii) The appellant actively participated and organised the said landings of arms and ammunitions, and explosives at Shekhadi and also rendered assistance for its safe transportation.
(iii) The appellant was present at the landing site as well as at the Tower where the arms and ammunitions and explosives were shifted in false cavities.
(iv) The appellant attended conspiratorial meeting at Dubai.
(v) The appellant worked in close association with Tiger Memon and also paid the people for the services rendered by them.
(vi) The appellant held a commanding position and also had people who worked for him.
(vii) The appellant was not under threat or coercion and all his actions were voluntary. He worked in pursuance of the conspiracy to achieve the common object.
(ix) The appellant was also managing government servants by giving them bribe on behalf of Tiger Memon which shows his closeness with Tiger Memon.
(x) The bribe was being paid to the officials by the appellant on behalf of Tiger Memon for the said landings at Shekhadi.
(xi) The appellant was in the core group of primary conspirators. It is not that he merely participated in the landings as an agent, on the contrary, he participated in the landings after being fully agreeable to the ultimate object of the conspiracy.
(xii) His role in achieving the ultimate object of the conspiracy was very crucial and decisive.
Deposition of Prosecution Witnesses:
308. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
308.1 The relevant material in his evidence is as follows:-
(i) PW-2 knew the appellant as Dawood Taklya
(ii) PW-2 identified the appellant before the court in dock proceedings.
(iii) The appellant was present in the hut at Shekhadi and in his (PW-2) presence, Tiger Memon with the help of the appellant and others present there, opened 7 bags which contained guns, pistols and grenades.
(iv) The appellant and Dadabhais (A-17) men assisted in unloading the arms and ammunitions from the boats and reloading them in the truck.
(v) The boxes in which arms and ammunitions were brought from Shekhadi were burnt by the appellant, A-17 and his son in the backyard at the instance of Tiger Memon.
(vi) Tiger Memon also instructed the appellant to conceal some boxes of Kala Sabun.
(vii) The appellant was present at Shekhadi at the time of landing and his men unloaded and loaded them in a Tempo.
309. The aforesaid deposition fully establishes the charges framed against the appellant. It is further submitted that the testimony of PW-2 also corroborates with the confessions of the co-accused as well as the confession of the appellant.
Travel to Dubai to attend Conspiratorial Meeting
310. The prosecution submitted that the appellant travelled to Dubai from Bombay on 19.01.1993 and returned on 23.01.1993. The departure and arrival details of the appellant have been proved by P.R. Patil (PW-242) and S.S. Chaudhary (PW-223), Immigration Officers, which are as under:-
Deposition of P.R. Patil (PW-242)
310.1 He was on Immigration duty on 19.01.1993. The relevant entries on the Embarkation Card (X-398) concerning the departure have been marked as Exh. Nos. 1050, 1050-A and 1050-A(1).
Deposition of S.S. Chaudhary (PW-223)
310. 2 The arrival of the appellant to India from Dubai has been proved by PW-223 who was on Immigration duty on 23.01.1993. The relevant endorsements on the Disembarkation Card (X-349) have been marked as Exh. Nos. 989 and 989A.
Deposition of Subhash Udyawar (PW-441)
310. 3 PW-441 was an employee of M/s East West Travel and Tours Pvt. Ltd. and has deposed regarding the reservation of flight tickets for the appellant to Dubai at the instance of A-1. On perusal of the above, it can easily be inferred that:-
(i) The appellant had been to Dubai on 19.01.1993 and returned Bombay on 23.01.1993.
(ii) The departure and arrival details have been further corroborated by PWs-242 and 223.
(iii) The tickets of the appellant were arranged by A-1, who is a co-conspirator and brother of prime accused, Tiger Memon.
Presence of the accused at Waghani Tower
Deposition of Harish Chandra Laxman Surve (PW-108)
311. PW-108 was a watchman at the Waghani Tower who deposed as under:
(i) Tulsiram Dhondu Surve (A-62) and Vijay Goving More (PW-137) were also working alongwith him at Waghani Tower in 1992/1993.
(ii) On 03.02.1993, the said witness was on duty at Waghani Tower.
(iii) He was told by A-62 that a party of the appellant was to arrive from Mhasla in the night.
(iv) At 9.00 p.m., one Maruti Van, one motorcycle and one jeep arrived at Waghani Tower.
(v) The appellant was present in the aforesaid jeep.
Deposition of Vijay Goving More (PW-137)
311.1 PW-137 was a labourer at Waghani Tower who deposed as under:
(i) A-62 and PW-108 were working as watchman at the Tower.
(ii) At 9.30 p.m., a Maruti Car came at Waghani Tower. Three persons were occupying the said car. Sarfaraj Phanse was one of the three. Sarfaraj gave a call to A-62 and told him to make arrangements for tea by telling that their persons had arrived.
(iii) One person out of the three, left in the car and returned alongwith nine to ten persons.
(iv) Tiger Memon, Dawood Phanse and others were amongst the said nine persons.
(v) All the persons then left and around 11 p.m., one truck, one tempo and two jeeps arrived at the Tower. The appellant was present in the jeep along with others.
(vi) All the said persons went away after goods were loaded in the Tempo and the Truck.
(vii) In a similar manner, in February, 1993, A-62 told PW-137 that the goods of the appellant were to arrive.
(viii) After 11 p.m., one truck, two jeeps and a tempo arrived at Waghani Tower and the appellant was seated in the jeep.
(ix) Thereafter, unloading of goods from the trucks commenced.
(x) Again, after 4/5 days, A-62 told PW-137 that goods of the appellant were to arrive.
(xi) PW-137 identified the appellant in the court.
312. On perusal of the aforesaid deposition, it is clearly discernible that:
(i) The appellant was present at Waghani Tower when the goods were being loaded and unloaded.
(ii) The deposition of PW-137 also lends credence to the deposition of PW-108 that the appellant was seated in the jeep which came to the Tower filled with the goods.
(iii) The said evidence read with the substantive evidence of abovesaid confessions clearly, beyond all reasonable doubt, proved his fatal presence at the Tower when the arms and ammunitions and explosives smuggled to this country were being unpacked and reloaded.
Other Witnesses:
Deposition of Ravindra Vaskar Sawant (PW-145)
313. PW-145 is a resident of Kanghar and runs a grocery shop and acted as a panch witness.
(i) He saw the powder like substance on the land within the campus of Waghani Tower;
(ii) He also saw the burnt cardboards at the site and their ashes lying nearby;
(iii) The samples of the powder as well as of the said ashes were collected by the police in his presence.
Deposition of Vyankatesh Hirba (PW-588)
313.1 He was a police officer attached with the State Intelligence Department, Panvel. He deposed that he went to Waghani Tower and collected samples of earth and ashes from the said place. Panchnama Exh. 660 was prepared by him. The samples were forwarded for examination to FSL, Bombay by Shashikant Chavan (PW-676). The FSL report (Exh. 2154 colly) confirmed the presence of RDX in the samples.
314. A perusal of the entire evidence on record shows that no other hypothesis is possible than to conclude that he willingly participated and assisted Dawood Ibrahim and Tiger Memon in smuggling of large quantity of weapons, ammunitions and explosives of mass destruction which ultimately resulted in huge destruction shocking to the very conscience. If the role of the appellant is seen in the light of his agreement, understanding and his consciousness of the ultimate use of the smuggled arms and ammunitions and explosives, the culpability of the appellant is no less than Tiger Memon. All the other co-accused persons in their confessional statements asserted that the appellant acted not only as a landing agent but he was also aware of the arms and ammunitions and was himself in possession of the same. Further, it has also come in evidence that he was aware of all the activities of Tiger Memon. Even if we consider his age, he has not made out a case for any leniency in the sentence part.
315. Therefore, in view of the above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement he has committed the offences for which he has been charged and we are not inclined to interfere with the conviction and sentence awarded by the Designated Court. Consequently, the appeals are liable to be dismissed.
