Ibrahim Musa Chauhan @ Baba Chauhan Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No.555 of 2012
WITH
Criminal Appeal No. 1129-1130 of 2007
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Criminal Appeal No. 402 of 2008
WITH
Criminal Appeal No. 617-618 of 2008
WITH
Criminal Appeal No. 1631 of 2007
WITH
Criminal Appeal No. 1419 of 2007
WITH
Criminal Appeal No. 1226 of 2007
WITH
Criminal Appeal No. 1422 of 2007
WITH
Criminal Appeal No. 1180 of 2007
WITH
Criminal Appeal No. 1225 of 2007
WITH
Criminal Appeal No. 919 of 2008
AND Criminal Appeal No. 1393 of 2007
WITH
Criminal Appeal No. 1129-1130 of 2007
WITH
Criminal Appeal No. 402 of 2008
WITH
Criminal Appeal No. 617-618 of 2008
WITH
Criminal Appeal No. 1631 of 2007
WITH
Criminal Appeal No. 1419 of 2007
WITH
Criminal Appeal No. 1226 of 2007
WITH
Criminal Appeal No. 1422 of 2007
WITH
Criminal Appeal No. 1180 of 2007
WITH
Criminal Appeal No. 1225 of 2007
WITH
Criminal Appeal No. 919 of 2008
AND Criminal Appeal No. 1393 of 2007
Petitioner: Ibrahim Musa Chauhan @ Baba Chauhan
Respondent: State of Maharashtra
Apeal: Criminal Appeal No.555 of 2012
WITH
Criminal Appeal No. 1129-1130 of 2007
WITH
Criminal Appeal No. 402 of 2008
WITH
Criminal Appeal No. 617-618 of 2008
WITH
Criminal Appeal No. 1631 of 2007
WITH
Criminal Appeal No. 1419 of 2007
WITH
Criminal Appeal No. 1226 of 2007
WITH
Criminal Appeal No. 1422 of 2007
WITH
Criminal Appeal No. 1180 of 2007
WITH
Criminal Appeal No. 1225 of 2007
WITH
Criminal Appeal No. 919 of 2008
AND Criminal Appeal No. 1393 of 2007
WITH
Criminal Appeal No. 1129-1130 of 2007
WITH
Criminal Appeal No. 402 of 2008
WITH
Criminal Appeal No. 617-618 of 2008
WITH
Criminal Appeal No. 1631 of 2007
WITH
Criminal Appeal No. 1419 of 2007
WITH
Criminal Appeal No. 1226 of 2007
WITH
Criminal Appeal No. 1422 of 2007
WITH
Criminal Appeal No. 1180 of 2007
WITH
Criminal Appeal No. 1225 of 2007
WITH
Criminal Appeal No. 919 of 2008
AND Criminal Appeal No. 1393 of 2007
Judges: P. Sathasivam, B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 5 – Word ‘possession’ – Meaning as stated in Durga Prasad’s case and Sanjay Dutt’s case stated.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 5 – Word ‘possession’ – Meaning as stated in Durga Prasad’s case and Sanjay Dutt’s case stated.
Section 5 – Ingredients of. Stated
Section 5 – Possession of contraband – Onus of proof. Held, once the possession of contraband is established, then accused has to show that he was not in possession.
Section 5 – Possession of contraband – Knowledge of possession. Held, is within the knowledge of the person who possesses it. So person having contraband must have knowledge of its possession in notified area.
Sections 15, 5 – Confessional statement Consequent recoveries by police official at instance of appellant at a public place used for dumping waste Recovery signed by panch witness PW 45 AK 56 rifles, 635 cartridges and 25 hand-grenades recovered Plea that recovery at public place, which is accessible by every one, should not be considered. Held submission is merit-less. Accused alone has the knowledge of the place where he had concealed the arms. State of H.P. v. Jeet Singh and State of Maharashtra v. Bharat Fakira Dhiwar referred.
Sections 3(3), 5, 6, 15 – Penal Code, 1860, Section 120B – Arms Act, 1959, Sections 25(1A) and (1B), Sections 3 & 7 – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Appellant 41 making statement On the basis of confessional statement, other accuseds statements and other evidence, designated court holding him guilty under Section 3(3) & 5 of TADA Appellant acquaintances with Abu Salem (AA) and Anis Ibrahim well established Appellant on instruction of Accused Salim, searched for garage Unauthorisedly possessed AK56 rifles, magazines, ammunition and hand grenades Gave part of those to Accused 117, kept some grenades for himself and gave some to Salim Kurla on behest of Salim (AA) – Failed to rebut the presumption that arms in notified area were not for terrorist Act Acquittal from the charge of conspiracy as no nexus found between material possessed and distributed and material sent to India by conspirator No nexus found between appellant and any other co-accused involved in conspiracy. Held on facts no interference needed.
Held:
The only requirements under the statutory provisions are, that (1) a person must be in possession of some contraband material; (2) the person must have knowledge of his possession i.e. conscious possession; (3) it should be in the notified area. Once possession is established, the burden is on the accused to show that he was not in conscious possession. (Para 20)
It cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage. (Para 17)
After considering the entire evidence on record, the learned Designated Court came to the conclusion that the appellant (A-41) was aware that the arms and ammunition which were handled by him were to be used during riots against Hindus. The father of the appellant (A-41), had collected a bag of contraband kept with Iqbal Tunda through Haji Ismail, and handed over the same to the police. The Designated Court held that the confessions of the co-accused established the role played by the appellant (A-41) in supplying weapons to A-117. The confession of A-117 does not reveal the name of the appellant (A-41), but the same is obvious as A-117 did not know the appellant prior to the said meeting. Thus, it is clear that the fourth person referred to in the confession of A-117 is none other than the appellant (A-41). The Court held that a consideration of the entire evidence leads to the inescapable conclusion that the appellant (A-41) was in unauthorised possession of AK-56 rifles, magazines, ammunition and hand grenades, and that he had distributed a part of the material to A-117, kept the hand grenades with himself, and had handed over an AK-56 rifle to Salim Kurla (dead). All the said acts were committed by him at the behest of Salim (AA) and Anees Ibrahim, and thus he has committed an offence punishable under Sections 3(3) and 5 TADA. Being in the unauthorised possession of weapons in a notified area, and having failed to rebut the presumption i.e. that the same were being for the purpose of the commission of a terrorist act, he is liable to be convicted under Section 5 TADA. (Para 21)
We have considered the entire evidence on record and come to the following conclusions:
i. The appellant (A-41) was well acquainted with Abu Salim (AA) who was working with Anis Ibrahim Kaskar (AA).
ii. The appellant (A-41) was asked to arrange a garage, and hence searched for an appropriate garage with co-accused Salim, Hingora (A-53) and his partner Haneef.
iii. The appellant was introduced to co-accused Sanjay Dutt (A-117) at the residence of the latter.
iv. The appellant witnessed the handing over of contraband to the co-accused (A-117).
v. The appellant was in conscious possession of certain contraband items.
vi. The recovery of the contraband material which was effected upon the making of a disclosure statement by the appellant, took place at a dumping ground for waste. (Para 22)
The Designated Court convicted the appellant (A-41) on the basis of the evidence as has been hereinabove stated. We find no cogent reason to interfere with the decision of the Designated Court. The appeal is hereby, accordingly dismissed. (Para 23)
Cases Reffered:
1. Gurjinder Singh v. State of Punjab [JT 2011 (2) SC 580] (Para 89)
2. Aloke Nath Dutta & Ors. v. State of West Bengal [(2007) 12 SCC 230.] (Para 119)
3. Durga Prasad Gupta v. State of Rajasthan thr. CBI [JT 2003 (Suppl.1) SC 586], (Para 18)
4. State of Maharashtra v. Bharat Fakira Dhiwar [JT 2001 (9) SC 407] (Para 16.)
5. State Govt. of NCT of Delhi v. Sunil & Anr. [JT 2000 (Suppl.3) SC 267] (Para 90)
6. State of Rajasthan v. Teja Ram & Ors. [JT 1999 (2) SC 279], (Para 171)
7. State of Himachal Pradesh v. Jeet Singh [JT 1999 (2) SC 99] (Para 15.)
8. Kalpnath Rai v. State (Thr. CBI) [JT 1997 (9) SC 18] (Para 41)
9. Sahib Singh v. State of Haryana [JT 1997 (7) SC 42] (para 197)
10. Balbir Singh v. State [JT 1996 (9) SC 158] (Para 42)
11. Tahir v. State (Delhi) [JT 1996 (3) SC 386] (Para 42)
12. Anil v. State of Maharashtra [JT 1996 (3) SC 120] (Para 42)
13.Sama Alana Abdulla v. State of Gujarat [(1996) 1 SCC 427] (Para 42)
14. Jackaran Singh v. State of Punjab [AIR 1995 SC 2345](Para 170)
15. Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra [JT 1995 (7) SC 350] (Para 42)
16. Sanjay Dutt v. State thr. CBI, Bombay (II) [JT 1994 (5) SC 540] (Para 19)
17. Kartar Singh v. State of Punjab [JT 1994 (2) SC 423], (Para 190)
18. Paras Ram v. State of Haryana [JT 1992 (Suppl.) SC 472] (Para 42)
2. Aloke Nath Dutta & Ors. v. State of West Bengal [(2007) 12 SCC 230.] (Para 119)
3. Durga Prasad Gupta v. State of Rajasthan thr. CBI [JT 2003 (Suppl.1) SC 586], (Para 18)
4. State of Maharashtra v. Bharat Fakira Dhiwar [JT 2001 (9) SC 407] (Para 16.)
5. State Govt. of NCT of Delhi v. Sunil & Anr. [JT 2000 (Suppl.3) SC 267] (Para 90)
6. State of Rajasthan v. Teja Ram & Ors. [JT 1999 (2) SC 279], (Para 171)
7. State of Himachal Pradesh v. Jeet Singh [JT 1999 (2) SC 99] (Para 15.)
8. Kalpnath Rai v. State (Thr. CBI) [JT 1997 (9) SC 18] (Para 41)
9. Sahib Singh v. State of Haryana [JT 1997 (7) SC 42] (para 197)
10. Balbir Singh v. State [JT 1996 (9) SC 158] (Para 42)
11. Tahir v. State (Delhi) [JT 1996 (3) SC 386] (Para 42)
12. Anil v. State of Maharashtra [JT 1996 (3) SC 120] (Para 42)
13.Sama Alana Abdulla v. State of Gujarat [(1996) 1 SCC 427] (Para 42)
14. Jackaran Singh v. State of Punjab [AIR 1995 SC 2345](Para 170)
15. Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra [JT 1995 (7) SC 350] (Para 42)
16. Sanjay Dutt v. State thr. CBI, Bombay (II) [JT 1994 (5) SC 540] (Para 19)
17. Kartar Singh v. State of Punjab [JT 1994 (2) SC 423], (Para 190)
18. Paras Ram v. State of Haryana [JT 1992 (Suppl.) SC 472] (Para 42)
JUDGEMENT:
Dr. B.S. Chauhan, J:
1. This appeal has been preferred against the judgments and orders dated 29.11.2006 and 6.6.2007 passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the `TADA) in the Bombay Blast Case No. 1/1993, by which the appellant (A-41) has been convicted under Sections 3(3), 5 and 6 TADA, as well as under Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms Act, 1959 (hereinafter referred to as the Arms Act), Section 4(b) of the Explosive Substances Act, 1908 (hereinafter referred to as the Act 1908), and Section 9-B(1) (b) of the Explosives Act, 1884 (hereinafter referred to as the Act 1884).
2. Facts and circumstances giving rise to this appeal are that:
A. As all the main factual and legal issues involved in this appeal have already been discussed by us and determined in the main connected appeal i.e. Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI (Criminal Appeal No.1728 of 2007), there is thus, no occasion for us to repeat the same.
B. The Bombay Blasts occurred on 12.3.1993, in which 257 persons lost their lives and 713 were injured. In addition thereto, there was loss of property worth several crores. The Bombay police investigated the said matter at the initial stage, but subsequently the investigation of the same was entrusted to the Central Bureau of Investigation (hereinafter referred to as the CBI), and then upon conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Among the accused persons against whom a chargesheet was filed, 40 accused could not be put to trial as they were absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Furthermore, the Designated Court discharged 2 accused during trial, and the remaining persons, including the appellant (A-41) stood convicted. C. A common charge of conspiracy was framed against all the coconspirators 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.), 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, ammunition, 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, ammunition 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/coconspirators, 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 Santa Cruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Macchimar Hindu Colony.
Mahirn 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) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (1-A), (I- B)(a) of the Arms Act 1959, Sections 9B (l)(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.’
D. Additionally, he has been charged for abetting and facilitating acts that were preparatory in nature, for the terrorist acts, by acquiring and distributing AK-56 rifles in the city of Bombay and its suburbs, their magazines, ammunition and also hand grenades to co- accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the instance of Anis Ibrahim Kaskar, an Absconding Accused (hereinafter referred to as AA), brother of notorious smuggler Dawood Ibrahim, and Abu Salim for committing the terrorist acts punishable under Section 3(3) TADA.
E. The appellant (A-41) was also charged with, being in the unauthorised possession of one AK 56 rifle, 635 rounds of ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as the same were recovered in the notified area at his instance, and thus he has been charged under Section 5 TADA.
F. The appellant was further charged under Section 6 TADA, Sections 3 & 7 read with Section 25(1-A), (1-B)(a) of the Arms Act, Section 4(b) of the Act 1908 and Section 9-B(1)(b) of the Act 1884, for unauthorisedly being in possession of the aforesaid arms with the intention to aid terrorist acts.
G. The prosecution has examined a large number of witnesses and produced a large number of documents to prove its case, and upon conclusion of the trial, the Designated Court acquitted the appellant of the umbrella charge of conspiracy i.e. charge No. 1. However, he was convicted for the second charge i.e. smaller conspiracy under Section 3(3) TADA and was awarded a sentence of 8 years RI alongwith a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of three years; under Section 5 TADA, he was sentenced to suffer RI for 10 years alongwith a fine of Rs.50,000/-, and in default of payment of fine, to suffer further RI for a period of one year; under Section 6 TADA, he was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of 3 years; under Section 4(b) of the Act 1908, he was sentenced to suffer RI for four years alongwith a fine of Rs.25,000/- and in default of payment of fine, to suffer further RI for a period of 6 months, under Section 9-B (1)(b) of the Act 1884, he was sentenced to suffer RI for one year alongwith a fine of Rs. 2,000/- and in default of payment of fine, to suffer further RI for two months. All the sentences were directed to run concurrently. However, under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the Arms Act, the appellant was convicted, but no separate sentence was awarded.
Hence, this appeal.
3. Shri Shree Prakash Sinha, learned counsel for the appellant has submitted that the confessional statement of the appellant as well as those of the co-accused were recorded by the police forcibly, without meeting the requirements of Section 15 TADA and Rule 15 of the rules framed thereunder. Thus, the same cannot be relied upon. The recoveries purported to have been made were also planted by the investigating agency and cannot be relied upon. The Designated Court erred in convicting the appellant. Thus, the appeal deserves to be allowed.
4. Shri Mukul Gupta, learned Senior counsel appearing for the respondent, has opposed the appeal contending that the confessional statement of the appellant as well as those of the co-accused, were recorded in strict adherence to statutory requirements i.e. Section 15 TADA and Rule 15 of the rules framed thereunder. The appellant and co- accused have made their confessional statements voluntarily and the conviction of the appellant can be maintained on the sole basis of the confessional statement of the appellant himself. Moreover, a large number of co-accused have named him and have assigned to him overt acts. The recoveries have also been made strictly in accordance with the requirements of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) and there is no reason to disbelieve the same, as the same were made at the instance of the appellant i.e. on the basis of his disclosure statement made voluntarily. Thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. Evidence against the appellant (A-41):
a) Confessional statement of the appellant himself.
b) Confessional statement of co-accused Samir Ahmed Hingora (A-53).
c) Confessional statement of co-accused Sanjay Dutt (A-117).
d) Confessional statement of Manzoor Ahmed Sayyed Ahmed (A- 89).
e) Deposition of Pandharinath Hanumanth Shinde (PW.218).
f) Deposition of Laxman Loku Karkare (PW.45).
g) Deposition of Hari Pawar (PW.596).
h) Deposition of Prem Kishan Jain (PW.189).
7. Confessional Statement of Baba Musa Chauhan (A-41):
His confessional statement shows that he was well acquainted with the co-accused Salim who used to extort money, and was working for Anis Ibrahim Kaskar (AA), brother of notorious smuggler and gangster Dawood Ibrahim. Salim told the appellant (A-41) on 15.1.1993 to arrange a garage, with respect to which, the appellant (A-41) initially expressed his inability, but after receiving a phone call from Anis Ibrahim Kaskar in the evening at about 7-7.30 P.M., wherein Salim was asked to go to the Magnum Video Office, and meet Samir Ahmed Hingora (A- 53). The appellant (A-41) went there alongwith Salim in a blue coloured Maruti 800 Car, and with the help of Samir Ahmed Hingora (A-53) and his partner Haneef, they searched for an appropriate garage. At this time, Salim told the appellant (A-41) that he would keep 2-3 AK 56 rifles with him (A-41) for about 2-3 days, and asked him to stay at home, so that he could bring the arms. On the subsequent morning, Salim came to the house of the appellant (A-41). Abu Salim asked the appellant (A-41) to drive a white coloured Maruti Van which was parked near the Arsha Shopping Centre and to come near the Magnum office. Salim drove ahead of him in a blue coloured Maruti, after handing over the keys of the van to the appellant (A-41). Appellant (A-41) reached close to the Magnum office in the van. Salim and Samir Ahmed Hingora (A- 53) then sat in the van driven by the appellant (A-41), and all those three persons reached the house of co-accused Sanjay Dutt (A-117). Sanjay Dutt (A-117) embraced Salim and Samir Ahmed Hingora (A-53). Salim introduced Sanjay Dutt (A-117) to the appellant (A-41). Sanjay Dutt cleared the passage leading to the garage, shifting the vehicles parked therein to the other side. The van which the appellant (A-41) had driven was taken to the garage in reverse gear. Salim opened the cavity of the car which was under its back seats with the aid of a panna, and from within, removed 9 AK 56 rifles one by one, and then opened the inside lining of the front door of the car and removed from there 80 hand grenades without pins, then he removed 1500/2000 bullets from the back door. These bullets were packed in brown coloured paper, in packets of 25-30 bullets, which were held together by rubber bands. The hand grenades were also packed in brown coloured paper. There were 56 magazines in the lining of the back door of the car. Sanjay Dutt (A- 117) asked Salim why the hand grenades had been brought there, as it might create a problem in case the same blew up. Salim explained to Sanjay Dutt (A-117) that as the hand grenades did not have pins nothing would happen. Salim made a list of all the articles and asked the appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets and 20 hand grenades in Sanjay Dutts Fiat car (A-117) . The appellant (A-41) kept the said arms and ammunition as directed by Salim in the dickey of Sanjay Dutts car (A-117), locked the dickey and put the key in his pocket. Samir Ahmed Hingora (A-53) kept 20 hand grenades in his car after packing the same into a bag and the appellant (A-41) kept 3 rifles, 16 magazines, 25 hand grenades and 750 bullets and came out with Samir Ahmed Hingora (A-53). The appellant (A-41) left with the remaining arms and ammunition kept in a bag, which he laid under his bed.
Next day, the appellant (A-41) loaded all the bullets in the magazines of the rifles. He could not contact Salim to take away the said arms as no one picked up Salims telephone. Subsequently, the appellant (A-41) was told by Salims wife that Salim had gone out of India and that she would talk to him after 2-3 days. The appellant (A- 41) told her that Salim had kept some computer parts with him (A-41) and that the same were to be returned to him at the earliest. A-41 went to the house of Salim and told his wife that he wanted to return the said goods at the earliest. On the same night, A-41 received a telephone call from Dubai from Salim informing him that he was coming back to Bombay within 1-2 days, and that after coming back he would collect all the goods. However, Salim did not return from Dubai. So the appellant (A-41) called up his brother-in-law in Dubai and asked him to talk to Salim, and request him to collect his goods, who subsequently informed the appellant (A-41) that Salim was likely to come to Bombay within a day or two and that he would contact him. Immediately thereafter, riots took place in Bombay.
On 16.1.1993 the appellant (A-41) received a telephone call from Salim, who asked him to talk to Anis Ibrahim Kaskar (AA). A-41 contacted Anis Ibrahim, who told the appellant (A-41) to give two guitars and six tars (cord) to Salim Kurla and also, to give him some Kadis and on being told that the Kadis had already been attached to the broom (Jaadu), Anis Ibrahim asked the appellant to give only 6 tars. The appellant (A-41) told Anis Ibrahim Kaskar that he did not know Salim Kurla. Then Anis Ibrahim Kaskar told him that Salim Kurla knew the appellant (A-41), and that he would come to the Andheri Post Office in the front of his house. Thus, on his instructions, the appellant (A-41) handed over two rifles and 6 loaded magazines to Salim Kurla. Salim Kurla had told the appellant that these arms were to be given to some one in Beharam Pada. After 2-3 days, Salim returned to Bombay and came to the appellant (A-41) with his brother Kalam. The appellant (A-41) told him that he had 1 rifle, 25 hand grenades, the remaining bullets and 10 magazines etc. The appellant (A-41) asked Salim to take these remaining articles from him. However, he promised to take them back in the evening, but then did not come for two days.
During this period, the appellant (A-41) learnt from the newspapers that Salim had been arrested by the police while trying to extort money from a Gujarati person. Salim himself came to see the appellant (A-41), and told him (A-41) that Salim Kurla could disclose the name of the appellant (A-41) to the police, and hence, he advised the appellant (A-41) not to disclose Salims name. The appellant (A- 41) became frightened, as he was in the possession of arms. Thus, he immediately shifted the arms to Iqbal Tunda and informed Salim to keep the remaining goods with someone without disclosing his (A-41) name. Salim came to see the appellant (A-41), and he had with him 30 loaded magazines which were wrapped in a plastic/polythene bag and then kept in a cloth bag. He left these magazines with the appellant (A-41) and said that he would send Ayub to collect this ammunition from him. Accordingly, the next night at 9-9.30 p.m. Ayub came with arms including one AK 56 rifle. He kept the magazine and bag in one place. Though, he returned a part of the arms and ammunition, some material still remained with the appellant (A-41), which was kept in another place. He returned 30 loaded magazines to Salim and Ayub which they kept inside the dickey of their scooter and left.
Salim Kurla was arrested after the Bombay blast and upon his disclosure, the appellant (A-41) was arrested on 28.3.1993. Later on, his father obtained the bag which he had kept with Iqbal Tunda through Hazi Ismail, and the same was produced before the police. He (A-41) further stated that he was not interested in using any arms or keeping the same with him, rather he had been forced to keep the same by the other co-accused, on the pretext that the weapons and ammunition would be collected from him within 2-3 days.
The appellant (A-41) made a retraction statement on 21.12.1993.
8. The Confessional Statement of Samir Ahmed Hingora (A- 53):
He made a confession that on 15.1.1993, Anis Ibrahim Kaskar had telephoned him stating that the appellant (A-41) and Salim would bring one vehicle loaded with weapons, and that he was to make arrangements for the off-loading and handing over of some weapons to Sanjay Dutt (A- 117), and that thereafter, some weapons would be taken back by them for distribution to other persons. Since his partner Haneef was not in office, he took them to his house. Haneef talked to Anis Ibrahim Kaskar (AA) in Dubai over the telephone, and expressed his unwillingness to carry out his instructions. However, upon the request of Salim, he (A-53) agreed to take him to Sanjay Dutts house while he was talking to Anis Ibrahim Kaskar over the telephone about the said weapons. Sanjay Dutt hugged Salim and asked him to come the next day with the weapons.
The next day, he (A-53) went to his office and met Salim and the appellant (A-41) and then reached the house of Sanjay Dutt (A-117). Sanjay Dutt asked his driver Mohd. to remove all the vehicles from the garage, and the appellant (A-41) then parked his Maruti van there and asked for a spanner and screw driver. Sanjay Dutt (A-117) asked Mohd. to bring the tool kit from his car and give it to the appellant (A-41). Salim wrapped three AK 56 rifles and some magazines in a bed sheet as per the request of Sanjay Dutt (A-117), and Salim also gave Sanjay Dutt 20-25 hand grenades which were put in a black coloured bag along with other ammunition.
9. Confessional statement of Sanjay Dutt (A-117):
He admitted that one day in the month of January around 9-9.30 p.m., Haneef and Samir Kurla had come to his house alongwith Salim. He had met Salim once or twice earlier also. They told him (A-117) that they would be coming the next day with the weapons that were to be delivered to him and then went away. The next morning, Samir, Haneef and Salim came to his house alongwith one other person, whom he did not know. They had come in a Maruti Van and parked the same in the tin shed which was used by him for parking his own vehicles. One person was sitting inside the Maruti Van. After about 15-20 minutes, he took out three rifles, and they told him that the same were AK-56 rifles. He then brought some cloth from his house and gave it to them. Salim and the person who had come with him, wrapped the rifles in the cloth, and thereafter, gave the same to him. He stated that he could identify, the person sitting in the car and also the hand grenades. He kept these rifles and the ammunition in the dickey of his Fiat Car No.MMU 4372.
10. Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89):
He confessed that he had a blue coloured Maruti 800 bearing No. M.P.23 B-9264. On 22nd/23rd January, 1993, in the evening, Salim contacted him over the telephone and called him to his office at Santacruz. After reaching there he took him (A-89), to the office of the appellant (A-41) at Monaz Builders and Builders, S.V. Road, Andheri, Opposite the Post Office. He introduced (A-89) to the appellant (A-41), and gave the key of his car to the appellant (A-41) and after about half an hour the appellant (A-41) came back and parked the said car outside the office, and gave the key to Salim and told him that he had kept the bag of weapons in the car. When Salim and (A- 89) entered the car, he (A-41) saw that a black bag containing weapons, was kept on the rear seat of the car.
11. Deposition of Pandharinath Hanumanth Shinde (PW.218) :
He was the constable posted at the house of Sanjay Dutt (A-117) for security. His statement was recorded in court on 6.11.1997, wherein he deposed about the visit of the appellant (A-41) alongwith Salim and others, to the house of Sanjay Dutt (A-117). He identified the appellant in a TI Parade held after 57 days, as well as in court. He also identified the two persons alongwith Sanjay Dutt. He supported the prosecutions case by saying that Sanjay Dutt had instructed the witness to go to Gate no. 1 for duty, which he had followed. The happenings at Gate No.2 would not be visible to him, while he was standing near the main Gate No.1. It was for this reason that he had been shifted to a place from where he could not possibly see what was happening.
12. Deposition of Laxman Loku Karkare (PW.45) – He was a panch witness in the recovery made on 1.4.1993. When he reached the police station and had agreed to become a panch witness, there were some constables and one more person, who had disclosed that his name was Ibrahim Musa Chauhan @ Baba Chauhan (A-41). He had given the address of his residence. The appellant (A-41) had disclosed to the police in his presence, that he had AK 56 rifles, magazines, grenades and cartridges which he had been concealed, and that he would show them the place of concealment and also produce the weapons. The panchanama was signed by this witness. They reached the place as was explained to them by the appellant (A-41) by police jeep, which was near Andheri Bus Terminus. Subsequently, they found themselves in front of a chawl owned by the appellant (A-41). Then the appellant took them to a lane which was being used as a dumping ground for waste material, and removed a bag from underneath a heap of waste. He removed an AK 56 rifle, 635 cartridges and 25 hand grenades, and handed over the same to P.I. Pawar who examined all the articles. The seizure panchanama was prepared by P.I. Pawar.
In his cross-examination he deposed that he did not remember that there was a street light at a distance of 20 feet on the northern side of the open space used as a dustbin. The space was full of waste material when he had gone alongwith the police party and the accused. There were no left over eatables dumped at the place and it was thus, not smelling. P.I. Pawar alongwith the accused had entered the open space. The open space being used as a dustbin was 4 ft. x 4 ft. The accused brought a bag out to the lane from the dustbin. The bag was not in the hands of P.I. Pawar. The accused (A-41) had removed the bag from the dustbin in their presence. He was standing in the lane watching the accused removing the bag from the dustbin.
13. Deposition of Hari Pawar (PW.596) – He is the Police officer who made the recovery at the instance of the appellant (A-41), in the presence of Panch witnesses. He has corroborated the version of recovery as stated by PW.45.
14. Deposition of Prem Kishan Jain (PW.189)- He had recorded the confessional statement of the appellant. He deposed that the appellant (A-41) had been brought from police custody and sent back to police custody. The witness explained that he was fully aware of the requirement of recording a confession and that he had complied with all the said requirements while recording the confession of the appellant.
15. In State of Himachal Pradesh v. Jeet Singh, [JT 1999 (2) SC 99 : (1999) 4 SCC 370] this court dealt with the issue of recovery from the public place and held:
21. The conduct of the accused has some relevance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh’s house at 6.15 a.m. on hearing the news of that tragedy and then accused Jeet Singh told him that Sudarshana complained of pain in the liver during the early morning hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure, he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room but they slept in two different rooms. Such a conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminating circumstance spoken to by PW 10 that they were in the same room on the fateful night. We too give accord to the aforesaid approach made by the trial court.
16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar [JT 2001 (9) SC 407 : (2002) 1 SCC 622], this Court held:
22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also.
17. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.
18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI [JT 2003 (Suppl.1) SC 586 : (2003) 12 SCC 257], this Court explained the meaning of possession as:
The word possession means the legal right to possession (See Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness, (1976) 1 All ER 844.)
Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.
19. In Sanjay Dutt v. State thr. CBI, Bombay (II), [JT 1994 (5) SC 540 : (1994) 5 SCC 410] this Court considered the statutory provisions of Section 5 TADA and in this regard held:
19. The meaning of the first ingredient of possession of any such arms etc. is not disputed. Even though the word possession is not preceded by any adjective like knowingly, yet it is common ground that in the context the word possession must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of possession in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood.
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25. The significance of unauthorised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act. This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession with this awareness, within a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption.
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27. There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non- existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and its availability in a notified area was innocuous. Whatever be the extent of burden on the accused to prove the non-existence of the third ingredient, as a matter of law he has such a right which flows from the basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving non- existence of the facts necessary to constitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc. in a notified area is proved by the prosecution, then he cannot be convicted under Section 5 of the TADA Act and would be dealt with and punished under the general law. It is obviously to meet situations of this kind that Section 12 was incorporated in the TADA Act.
20. Therefore, the only requirements under the statutory provisions are, that (1) a person must be in possession of some contraband material; (2) the person must have knowledge of his possession i.e. conscious possession; (3) it should be in the notified area. Once possession is established, the burden is on the accused to show that he was not in conscious possession.
21. After considering the entire evidence on record, the learned Designated Court came to the conclusion that the appellant (A-41) was aware that the arms and ammunition which were handled by him were to be used during riots against Hindus. The father of the appellant (A-41), had collected a bag of contraband kept with Iqbal Tunda through Haji Ismail, and handed over the same to the police. The Designated Court held that the confessions of the co-accused established the role played by the appellant (A-41) in supplying weapons to A-117. The confession of A-117 does not reveal the name of the appellant (A-41), but the same is obvious as A-117 did not know the appellant prior to the said meeting. Thus, it is clear that the fourth person referred to in the confession of A-117 is none other than the appellant (A-41). The Court held that a consideration of the entire evidence leads to the inescapable conclusion that the appellant (A-41) was in unauthorised possession of AK-56 rifles, magazines, ammunition and hand grenades, and that he had distributed a part of the material to A-117, kept the hand grenades with himself, and had handed over an AK-56 rifle to Salim Kurla (dead). All the said acts were committed by him at the behest of Salim (AA) and Anees Ibrahim, and thus he has committed an offence punishable under Sections 3(3) and 5 TADA. Being in the unauthorised possession of weapons in a notified area, and having failed to rebut the presumption i.e. that the same were being for the purpose of the commission of a terrorist act, he is liable to be convicted under Section 5 TADA.
21.1 However, considering that no nexus was established between the material possessed and distributed by the appellant (A-41), and the material smuggled into the country by the main conspirators, and there being absolutely no other material on record to reveal the nexus between the appellant (A-41) and any other co-accused involved in the said conspiracy, it was held that he could not be held guilty for the offence of conspiracy i.e. for the first charge. The acts committed by the appellant (A-41) do not reveal that the same were being done for the purpose of furthering the object of the conspiracy.
22. We have considered the entire evidence on record and come to the following conclusions:
i. The appellant (A-41) was well acquainted with Abu Salim (AA) who was working with Anis Ibrahim Kaskar (AA).
ii. The appellant (A-41) was asked to arrange a garage, and hence searched for an appropriate garage with co-accused Salim, Hingora (A-53) and his partner Haneef.
iii. The appellant was introduced to co-accused Sanjay Dutt (A-117) at the residence of the latter.
iv. The appellant witnessed the handing over of contraband to the co-accused (A-117).
v. The appellant was in conscious possession of certain contraband items.
vi. The recovery of the contraband material which was effected upon the making of a disclosure statement by the appellant, took place at a dumping ground for waste.
23. The Designated Court convicted the appellant (A-41) on the basis of the evidence as has been hereinabove stated. We find no cogent reason to interfere with the decision of the Designated Court. The appeal is hereby, accordingly dismissed.
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1. This appeal has been preferred against the judgments and orders dated 29.11.2006 and 6.6.2007 passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the `TADA) in the Bombay Blast Case No. 1/1993, by which the appellant (A-41) has been convicted under Sections 3(3), 5 and 6 TADA, as well as under Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms Act, 1959 (hereinafter referred to as the Arms Act), Section 4(b) of the Explosive Substances Act, 1908 (hereinafter referred to as the Act 1908), and Section 9-B(1) (b) of the Explosives Act, 1884 (hereinafter referred to as the Act 1884).
2. Facts and circumstances giving rise to this appeal are that:
A. As all the main factual and legal issues involved in this appeal have already been discussed by us and determined in the main connected appeal i.e. Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI (Criminal Appeal No.1728 of 2007), there is thus, no occasion for us to repeat the same.
B. The Bombay Blasts occurred on 12.3.1993, in which 257 persons lost their lives and 713 were injured. In addition thereto, there was loss of property worth several crores. The Bombay police investigated the said matter at the initial stage, but subsequently the investigation of the same was entrusted to the Central Bureau of Investigation (hereinafter referred to as the CBI), and then upon conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Among the accused persons against whom a chargesheet was filed, 40 accused could not be put to trial as they were absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Furthermore, the Designated Court discharged 2 accused during trial, and the remaining persons, including the appellant (A-41) stood convicted. C. A common charge of conspiracy was framed against all the coconspirators 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.), 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, ammunition, 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, ammunition 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/coconspirators, 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 Santa Cruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Macchimar Hindu Colony.
Mahirn 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) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (1-A), (I- B)(a) of the Arms Act 1959, Sections 9B (l)(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.’
D. Additionally, he has been charged for abetting and facilitating acts that were preparatory in nature, for the terrorist acts, by acquiring and distributing AK-56 rifles in the city of Bombay and its suburbs, their magazines, ammunition and also hand grenades to co- accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the instance of Anis Ibrahim Kaskar, an Absconding Accused (hereinafter referred to as AA), brother of notorious smuggler Dawood Ibrahim, and Abu Salim for committing the terrorist acts punishable under Section 3(3) TADA.
E. The appellant (A-41) was also charged with, being in the unauthorised possession of one AK 56 rifle, 635 rounds of ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as the same were recovered in the notified area at his instance, and thus he has been charged under Section 5 TADA.
F. The appellant was further charged under Section 6 TADA, Sections 3 & 7 read with Section 25(1-A), (1-B)(a) of the Arms Act, Section 4(b) of the Act 1908 and Section 9-B(1)(b) of the Act 1884, for unauthorisedly being in possession of the aforesaid arms with the intention to aid terrorist acts.
G. The prosecution has examined a large number of witnesses and produced a large number of documents to prove its case, and upon conclusion of the trial, the Designated Court acquitted the appellant of the umbrella charge of conspiracy i.e. charge No. 1. However, he was convicted for the second charge i.e. smaller conspiracy under Section 3(3) TADA and was awarded a sentence of 8 years RI alongwith a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of three years; under Section 5 TADA, he was sentenced to suffer RI for 10 years alongwith a fine of Rs.50,000/-, and in default of payment of fine, to suffer further RI for a period of one year; under Section 6 TADA, he was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of 3 years; under Section 4(b) of the Act 1908, he was sentenced to suffer RI for four years alongwith a fine of Rs.25,000/- and in default of payment of fine, to suffer further RI for a period of 6 months, under Section 9-B (1)(b) of the Act 1884, he was sentenced to suffer RI for one year alongwith a fine of Rs. 2,000/- and in default of payment of fine, to suffer further RI for two months. All the sentences were directed to run concurrently. However, under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the Arms Act, the appellant was convicted, but no separate sentence was awarded.
Hence, this appeal.
3. Shri Shree Prakash Sinha, learned counsel for the appellant has submitted that the confessional statement of the appellant as well as those of the co-accused were recorded by the police forcibly, without meeting the requirements of Section 15 TADA and Rule 15 of the rules framed thereunder. Thus, the same cannot be relied upon. The recoveries purported to have been made were also planted by the investigating agency and cannot be relied upon. The Designated Court erred in convicting the appellant. Thus, the appeal deserves to be allowed.
4. Shri Mukul Gupta, learned Senior counsel appearing for the respondent, has opposed the appeal contending that the confessional statement of the appellant as well as those of the co-accused, were recorded in strict adherence to statutory requirements i.e. Section 15 TADA and Rule 15 of the rules framed thereunder. The appellant and co- accused have made their confessional statements voluntarily and the conviction of the appellant can be maintained on the sole basis of the confessional statement of the appellant himself. Moreover, a large number of co-accused have named him and have assigned to him overt acts. The recoveries have also been made strictly in accordance with the requirements of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) and there is no reason to disbelieve the same, as the same were made at the instance of the appellant i.e. on the basis of his disclosure statement made voluntarily. Thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. Evidence against the appellant (A-41):
a) Confessional statement of the appellant himself.
b) Confessional statement of co-accused Samir Ahmed Hingora (A-53).
c) Confessional statement of co-accused Sanjay Dutt (A-117).
d) Confessional statement of Manzoor Ahmed Sayyed Ahmed (A- 89).
e) Deposition of Pandharinath Hanumanth Shinde (PW.218).
f) Deposition of Laxman Loku Karkare (PW.45).
g) Deposition of Hari Pawar (PW.596).
h) Deposition of Prem Kishan Jain (PW.189).
7. Confessional Statement of Baba Musa Chauhan (A-41):
His confessional statement shows that he was well acquainted with the co-accused Salim who used to extort money, and was working for Anis Ibrahim Kaskar (AA), brother of notorious smuggler and gangster Dawood Ibrahim. Salim told the appellant (A-41) on 15.1.1993 to arrange a garage, with respect to which, the appellant (A-41) initially expressed his inability, but after receiving a phone call from Anis Ibrahim Kaskar in the evening at about 7-7.30 P.M., wherein Salim was asked to go to the Magnum Video Office, and meet Samir Ahmed Hingora (A- 53). The appellant (A-41) went there alongwith Salim in a blue coloured Maruti 800 Car, and with the help of Samir Ahmed Hingora (A-53) and his partner Haneef, they searched for an appropriate garage. At this time, Salim told the appellant (A-41) that he would keep 2-3 AK 56 rifles with him (A-41) for about 2-3 days, and asked him to stay at home, so that he could bring the arms. On the subsequent morning, Salim came to the house of the appellant (A-41). Abu Salim asked the appellant (A-41) to drive a white coloured Maruti Van which was parked near the Arsha Shopping Centre and to come near the Magnum office. Salim drove ahead of him in a blue coloured Maruti, after handing over the keys of the van to the appellant (A-41). Appellant (A-41) reached close to the Magnum office in the van. Salim and Samir Ahmed Hingora (A- 53) then sat in the van driven by the appellant (A-41), and all those three persons reached the house of co-accused Sanjay Dutt (A-117). Sanjay Dutt (A-117) embraced Salim and Samir Ahmed Hingora (A-53). Salim introduced Sanjay Dutt (A-117) to the appellant (A-41). Sanjay Dutt cleared the passage leading to the garage, shifting the vehicles parked therein to the other side. The van which the appellant (A-41) had driven was taken to the garage in reverse gear. Salim opened the cavity of the car which was under its back seats with the aid of a panna, and from within, removed 9 AK 56 rifles one by one, and then opened the inside lining of the front door of the car and removed from there 80 hand grenades without pins, then he removed 1500/2000 bullets from the back door. These bullets were packed in brown coloured paper, in packets of 25-30 bullets, which were held together by rubber bands. The hand grenades were also packed in brown coloured paper. There were 56 magazines in the lining of the back door of the car. Sanjay Dutt (A- 117) asked Salim why the hand grenades had been brought there, as it might create a problem in case the same blew up. Salim explained to Sanjay Dutt (A-117) that as the hand grenades did not have pins nothing would happen. Salim made a list of all the articles and asked the appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets and 20 hand grenades in Sanjay Dutts Fiat car (A-117) . The appellant (A-41) kept the said arms and ammunition as directed by Salim in the dickey of Sanjay Dutts car (A-117), locked the dickey and put the key in his pocket. Samir Ahmed Hingora (A-53) kept 20 hand grenades in his car after packing the same into a bag and the appellant (A-41) kept 3 rifles, 16 magazines, 25 hand grenades and 750 bullets and came out with Samir Ahmed Hingora (A-53). The appellant (A-41) left with the remaining arms and ammunition kept in a bag, which he laid under his bed.
Next day, the appellant (A-41) loaded all the bullets in the magazines of the rifles. He could not contact Salim to take away the said arms as no one picked up Salims telephone. Subsequently, the appellant (A-41) was told by Salims wife that Salim had gone out of India and that she would talk to him after 2-3 days. The appellant (A- 41) told her that Salim had kept some computer parts with him (A-41) and that the same were to be returned to him at the earliest. A-41 went to the house of Salim and told his wife that he wanted to return the said goods at the earliest. On the same night, A-41 received a telephone call from Dubai from Salim informing him that he was coming back to Bombay within 1-2 days, and that after coming back he would collect all the goods. However, Salim did not return from Dubai. So the appellant (A-41) called up his brother-in-law in Dubai and asked him to talk to Salim, and request him to collect his goods, who subsequently informed the appellant (A-41) that Salim was likely to come to Bombay within a day or two and that he would contact him. Immediately thereafter, riots took place in Bombay.
On 16.1.1993 the appellant (A-41) received a telephone call from Salim, who asked him to talk to Anis Ibrahim Kaskar (AA). A-41 contacted Anis Ibrahim, who told the appellant (A-41) to give two guitars and six tars (cord) to Salim Kurla and also, to give him some Kadis and on being told that the Kadis had already been attached to the broom (Jaadu), Anis Ibrahim asked the appellant to give only 6 tars. The appellant (A-41) told Anis Ibrahim Kaskar that he did not know Salim Kurla. Then Anis Ibrahim Kaskar told him that Salim Kurla knew the appellant (A-41), and that he would come to the Andheri Post Office in the front of his house. Thus, on his instructions, the appellant (A-41) handed over two rifles and 6 loaded magazines to Salim Kurla. Salim Kurla had told the appellant that these arms were to be given to some one in Beharam Pada. After 2-3 days, Salim returned to Bombay and came to the appellant (A-41) with his brother Kalam. The appellant (A-41) told him that he had 1 rifle, 25 hand grenades, the remaining bullets and 10 magazines etc. The appellant (A-41) asked Salim to take these remaining articles from him. However, he promised to take them back in the evening, but then did not come for two days.
During this period, the appellant (A-41) learnt from the newspapers that Salim had been arrested by the police while trying to extort money from a Gujarati person. Salim himself came to see the appellant (A-41), and told him (A-41) that Salim Kurla could disclose the name of the appellant (A-41) to the police, and hence, he advised the appellant (A-41) not to disclose Salims name. The appellant (A- 41) became frightened, as he was in the possession of arms. Thus, he immediately shifted the arms to Iqbal Tunda and informed Salim to keep the remaining goods with someone without disclosing his (A-41) name. Salim came to see the appellant (A-41), and he had with him 30 loaded magazines which were wrapped in a plastic/polythene bag and then kept in a cloth bag. He left these magazines with the appellant (A-41) and said that he would send Ayub to collect this ammunition from him. Accordingly, the next night at 9-9.30 p.m. Ayub came with arms including one AK 56 rifle. He kept the magazine and bag in one place. Though, he returned a part of the arms and ammunition, some material still remained with the appellant (A-41), which was kept in another place. He returned 30 loaded magazines to Salim and Ayub which they kept inside the dickey of their scooter and left.
Salim Kurla was arrested after the Bombay blast and upon his disclosure, the appellant (A-41) was arrested on 28.3.1993. Later on, his father obtained the bag which he had kept with Iqbal Tunda through Hazi Ismail, and the same was produced before the police. He (A-41) further stated that he was not interested in using any arms or keeping the same with him, rather he had been forced to keep the same by the other co-accused, on the pretext that the weapons and ammunition would be collected from him within 2-3 days.
The appellant (A-41) made a retraction statement on 21.12.1993.
8. The Confessional Statement of Samir Ahmed Hingora (A- 53):
He made a confession that on 15.1.1993, Anis Ibrahim Kaskar had telephoned him stating that the appellant (A-41) and Salim would bring one vehicle loaded with weapons, and that he was to make arrangements for the off-loading and handing over of some weapons to Sanjay Dutt (A- 117), and that thereafter, some weapons would be taken back by them for distribution to other persons. Since his partner Haneef was not in office, he took them to his house. Haneef talked to Anis Ibrahim Kaskar (AA) in Dubai over the telephone, and expressed his unwillingness to carry out his instructions. However, upon the request of Salim, he (A-53) agreed to take him to Sanjay Dutts house while he was talking to Anis Ibrahim Kaskar over the telephone about the said weapons. Sanjay Dutt hugged Salim and asked him to come the next day with the weapons.
The next day, he (A-53) went to his office and met Salim and the appellant (A-41) and then reached the house of Sanjay Dutt (A-117). Sanjay Dutt asked his driver Mohd. to remove all the vehicles from the garage, and the appellant (A-41) then parked his Maruti van there and asked for a spanner and screw driver. Sanjay Dutt (A-117) asked Mohd. to bring the tool kit from his car and give it to the appellant (A-41). Salim wrapped three AK 56 rifles and some magazines in a bed sheet as per the request of Sanjay Dutt (A-117), and Salim also gave Sanjay Dutt 20-25 hand grenades which were put in a black coloured bag along with other ammunition.
9. Confessional statement of Sanjay Dutt (A-117):
He admitted that one day in the month of January around 9-9.30 p.m., Haneef and Samir Kurla had come to his house alongwith Salim. He had met Salim once or twice earlier also. They told him (A-117) that they would be coming the next day with the weapons that were to be delivered to him and then went away. The next morning, Samir, Haneef and Salim came to his house alongwith one other person, whom he did not know. They had come in a Maruti Van and parked the same in the tin shed which was used by him for parking his own vehicles. One person was sitting inside the Maruti Van. After about 15-20 minutes, he took out three rifles, and they told him that the same were AK-56 rifles. He then brought some cloth from his house and gave it to them. Salim and the person who had come with him, wrapped the rifles in the cloth, and thereafter, gave the same to him. He stated that he could identify, the person sitting in the car and also the hand grenades. He kept these rifles and the ammunition in the dickey of his Fiat Car No.MMU 4372.
10. Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89):
He confessed that he had a blue coloured Maruti 800 bearing No. M.P.23 B-9264. On 22nd/23rd January, 1993, in the evening, Salim contacted him over the telephone and called him to his office at Santacruz. After reaching there he took him (A-89), to the office of the appellant (A-41) at Monaz Builders and Builders, S.V. Road, Andheri, Opposite the Post Office. He introduced (A-89) to the appellant (A-41), and gave the key of his car to the appellant (A-41) and after about half an hour the appellant (A-41) came back and parked the said car outside the office, and gave the key to Salim and told him that he had kept the bag of weapons in the car. When Salim and (A- 89) entered the car, he (A-41) saw that a black bag containing weapons, was kept on the rear seat of the car.
11. Deposition of Pandharinath Hanumanth Shinde (PW.218) :
He was the constable posted at the house of Sanjay Dutt (A-117) for security. His statement was recorded in court on 6.11.1997, wherein he deposed about the visit of the appellant (A-41) alongwith Salim and others, to the house of Sanjay Dutt (A-117). He identified the appellant in a TI Parade held after 57 days, as well as in court. He also identified the two persons alongwith Sanjay Dutt. He supported the prosecutions case by saying that Sanjay Dutt had instructed the witness to go to Gate no. 1 for duty, which he had followed. The happenings at Gate No.2 would not be visible to him, while he was standing near the main Gate No.1. It was for this reason that he had been shifted to a place from where he could not possibly see what was happening.
12. Deposition of Laxman Loku Karkare (PW.45) – He was a panch witness in the recovery made on 1.4.1993. When he reached the police station and had agreed to become a panch witness, there were some constables and one more person, who had disclosed that his name was Ibrahim Musa Chauhan @ Baba Chauhan (A-41). He had given the address of his residence. The appellant (A-41) had disclosed to the police in his presence, that he had AK 56 rifles, magazines, grenades and cartridges which he had been concealed, and that he would show them the place of concealment and also produce the weapons. The panchanama was signed by this witness. They reached the place as was explained to them by the appellant (A-41) by police jeep, which was near Andheri Bus Terminus. Subsequently, they found themselves in front of a chawl owned by the appellant (A-41). Then the appellant took them to a lane which was being used as a dumping ground for waste material, and removed a bag from underneath a heap of waste. He removed an AK 56 rifle, 635 cartridges and 25 hand grenades, and handed over the same to P.I. Pawar who examined all the articles. The seizure panchanama was prepared by P.I. Pawar.
In his cross-examination he deposed that he did not remember that there was a street light at a distance of 20 feet on the northern side of the open space used as a dustbin. The space was full of waste material when he had gone alongwith the police party and the accused. There were no left over eatables dumped at the place and it was thus, not smelling. P.I. Pawar alongwith the accused had entered the open space. The open space being used as a dustbin was 4 ft. x 4 ft. The accused brought a bag out to the lane from the dustbin. The bag was not in the hands of P.I. Pawar. The accused (A-41) had removed the bag from the dustbin in their presence. He was standing in the lane watching the accused removing the bag from the dustbin.
13. Deposition of Hari Pawar (PW.596) – He is the Police officer who made the recovery at the instance of the appellant (A-41), in the presence of Panch witnesses. He has corroborated the version of recovery as stated by PW.45.
14. Deposition of Prem Kishan Jain (PW.189)- He had recorded the confessional statement of the appellant. He deposed that the appellant (A-41) had been brought from police custody and sent back to police custody. The witness explained that he was fully aware of the requirement of recording a confession and that he had complied with all the said requirements while recording the confession of the appellant.
15. In State of Himachal Pradesh v. Jeet Singh, [JT 1999 (2) SC 99 : (1999) 4 SCC 370] this court dealt with the issue of recovery from the public place and held:
21. The conduct of the accused has some relevance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh’s house at 6.15 a.m. on hearing the news of that tragedy and then accused Jeet Singh told him that Sudarshana complained of pain in the liver during the early morning hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure, he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room but they slept in two different rooms. Such a conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminating circumstance spoken to by PW 10 that they were in the same room on the fateful night. We too give accord to the aforesaid approach made by the trial court.
16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar [JT 2001 (9) SC 407 : (2002) 1 SCC 622], this Court held:
22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also.
17. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.
18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI [JT 2003 (Suppl.1) SC 586 : (2003) 12 SCC 257], this Court explained the meaning of possession as:
The word possession means the legal right to possession (See Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness, (1976) 1 All ER 844.)
Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.
19. In Sanjay Dutt v. State thr. CBI, Bombay (II), [JT 1994 (5) SC 540 : (1994) 5 SCC 410] this Court considered the statutory provisions of Section 5 TADA and in this regard held:
19. The meaning of the first ingredient of possession of any such arms etc. is not disputed. Even though the word possession is not preceded by any adjective like knowingly, yet it is common ground that in the context the word possession must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of possession in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood.
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25. The significance of unauthorised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act. This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession with this awareness, within a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption.
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27. There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non- existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and its availability in a notified area was innocuous. Whatever be the extent of burden on the accused to prove the non-existence of the third ingredient, as a matter of law he has such a right which flows from the basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving non- existence of the facts necessary to constitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc. in a notified area is proved by the prosecution, then he cannot be convicted under Section 5 of the TADA Act and would be dealt with and punished under the general law. It is obviously to meet situations of this kind that Section 12 was incorporated in the TADA Act.
20. Therefore, the only requirements under the statutory provisions are, that (1) a person must be in possession of some contraband material; (2) the person must have knowledge of his possession i.e. conscious possession; (3) it should be in the notified area. Once possession is established, the burden is on the accused to show that he was not in conscious possession.
21. After considering the entire evidence on record, the learned Designated Court came to the conclusion that the appellant (A-41) was aware that the arms and ammunition which were handled by him were to be used during riots against Hindus. The father of the appellant (A-41), had collected a bag of contraband kept with Iqbal Tunda through Haji Ismail, and handed over the same to the police. The Designated Court held that the confessions of the co-accused established the role played by the appellant (A-41) in supplying weapons to A-117. The confession of A-117 does not reveal the name of the appellant (A-41), but the same is obvious as A-117 did not know the appellant prior to the said meeting. Thus, it is clear that the fourth person referred to in the confession of A-117 is none other than the appellant (A-41). The Court held that a consideration of the entire evidence leads to the inescapable conclusion that the appellant (A-41) was in unauthorised possession of AK-56 rifles, magazines, ammunition and hand grenades, and that he had distributed a part of the material to A-117, kept the hand grenades with himself, and had handed over an AK-56 rifle to Salim Kurla (dead). All the said acts were committed by him at the behest of Salim (AA) and Anees Ibrahim, and thus he has committed an offence punishable under Sections 3(3) and 5 TADA. Being in the unauthorised possession of weapons in a notified area, and having failed to rebut the presumption i.e. that the same were being for the purpose of the commission of a terrorist act, he is liable to be convicted under Section 5 TADA.
21.1 However, considering that no nexus was established between the material possessed and distributed by the appellant (A-41), and the material smuggled into the country by the main conspirators, and there being absolutely no other material on record to reveal the nexus between the appellant (A-41) and any other co-accused involved in the said conspiracy, it was held that he could not be held guilty for the offence of conspiracy i.e. for the first charge. The acts committed by the appellant (A-41) do not reveal that the same were being done for the purpose of furthering the object of the conspiracy.
22. We have considered the entire evidence on record and come to the following conclusions:
i. The appellant (A-41) was well acquainted with Abu Salim (AA) who was working with Anis Ibrahim Kaskar (AA).
ii. The appellant (A-41) was asked to arrange a garage, and hence searched for an appropriate garage with co-accused Salim, Hingora (A-53) and his partner Haneef.
iii. The appellant was introduced to co-accused Sanjay Dutt (A-117) at the residence of the latter.
iv. The appellant witnessed the handing over of contraband to the co-accused (A-117).
v. The appellant was in conscious possession of certain contraband items.
vi. The recovery of the contraband material which was effected upon the making of a disclosure statement by the appellant, took place at a dumping ground for waste.
23. The Designated Court convicted the appellant (A-41) on the basis of the evidence as has been hereinabove stated. We find no cogent reason to interfere with the decision of the Designated Court. The appeal is hereby, accordingly dismissed.
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