III. Janardhan Pandurang Gambas (A-81) Vs. State of Maharashtra
EmailAppeal:
Petitioner: III. Janardhan Pandurang Gambas (A-81)
Respondent: State of Maharashtra
Apeal:
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Section 3(3) – Bombay Blast case – Appellant A-81 convicted under Section 3(3) of TADA – Charges against him of assisting co-accused A-136, A-133 and A-30 in smuggling, landing and transportation of arms, ammunitions, abetting A-133, A-74 in concealing 12 Ak-56 rifles, 36 magazines and 19,500 cartridges of Ak-56 rifles in mango grove and aiding A-66, A-74, A-105 in disposal of arms and ammunitions –
Charges proved by his own confessional statement along with the confessional statements of A-74, A-133 and A-136 – Deposition of PW.191 – Confessional statement proved to be voluntary by Designated Court. Held, charges stood proved. No interference needed.
Section 3(3) – Bombay Blast case – Appellant A-81 convicted under Section 3(3) of TADA – Charges against him of assisting co-accused A-136, A-133 and A-30 in smuggling, landing and transportation of arms, ammunitions, abetting A-133, A-74 in concealing 12 Ak-56 rifles, 36 magazines and 19,500 cartridges of Ak-56 rifles in mango grove and aiding A-66, A-74, A-105 in disposal of arms and ammunitions –
Charges proved by his own confessional statement along with the confessional statements of A-74, A-133 and A-136 – Deposition of PW.191 – Confessional statement proved to be voluntary by Designated Court. Held, charges stood proved. No interference needed.
Held:
HELD
The issue whether confessional statements made by Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) were voluntary, had been considered by the Designated Court in its judgment and after considering all the objections it came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) had made confessional statement voluntarily as T.S. Bhal (PW.191), S.P., Raigad has deposed that the appellant (A-81) was produced by Ashok Krishanji Chandgude (PW.670) before him on 20.5.1993 and after asking certain questions to him, T.S. Bhal (PW.191) was fully satisfied that appellant (A-81) wanted to make a voluntary confession. He was again asked to be produced on 21.5.1993 and on that day appellant (A-81) narrated the entire matter and his confession has been recorded verbatim. The Designated Court rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement before the court that he had never been produced before T.S. Bhal (PW.191) on either of the two days as claimed by the prosecution and his thumb impression had been obtained on blank papers while he was in custody of Alibagh Police Station. The theory was rejected. (Para 292)
The issue whether confessional statements made by Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) were voluntary, had been considered by the Designated Court in its judgment and after considering all the objections it came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) had made confessional statement voluntarily as T.S. Bhal (PW.191), S.P., Raigad has deposed that the appellant (A-81) was produced by Ashok Krishanji Chandgude (PW.670) before him on 20.5.1993 and after asking certain questions to him, T.S. Bhal (PW.191) was fully satisfied that appellant (A-81) wanted to make a voluntary confession. He was again asked to be produced on 21.5.1993 and on that day appellant (A-81) narrated the entire matter and his confession has been recorded verbatim. The Designated Court rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement before the court that he had never been produced before T.S. Bhal (PW.191) on either of the two days as claimed by the prosecution and his thumb impression had been obtained on blank papers while he was in custody of Alibagh Police Station. The theory was rejected. (Para 292)
After appreciating the evidence on record the learned Designated Court came to the conclusion that the involvement of the appellant (A-81) in landing at Dighi Jetty is established, but there is hardly any evidence to reveal that the appellant (A-81) had knowledge of contraband goods being arms and ammunitions, and thus the appellant (A-81) cannot be held liable for offence under Section 3(3) TADA on said count i.e. first limb of second charge, but guilty for offence punishable under Section 111 read with Section 135(b) of Customs Act, 1962 for the same. (Para 293)
However it was held that the appellant (A-81) after having acquired the knowledge about nature of said contraband being arms and ammunition and still having committed acts mentioned in second and third limbs of second charge i.e. concealment of weapons in mango groves and dumping of cartridges and magazines in Kandalgaon creek, he would be guilty for commission of offence under Section 3(3) TADA for the said offences. (Para 293.1)
More so, the Designated Court has taken into consideration the other confessional statements of other accused to support the prosecution case. We are not inclined to interfere with the judgment of the Designated court. The appeal with reference to Gambas (A-81) lacks merit and is accordingly dismissed. (Para 294)
JUDGEMENT:
Dr. B.S. Chauhan, J.
282. Appellant (A-81) was further charged for participating and assisting the co-accused Mechanic Chacha (A-136), Shabir and Jamir Kadri (A-133), Feroz Khan and co-accused Uttam Potdar (A- 30) in smuggling, landing and transportation of arms, ammunition and explosives smuggled in India on 9.1.1993. He was further charged with aiding and abetting, wanted accused Shabir and Jamir Kadri (A-133) and Faki Ali Faki Ahmed Subedar (A-74) in concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles in the mango grove of Abdul Razak Subedar, knowingly and intentionally that these arms and ammunition had been smuggled into the country for committing terrorist acts. Lastly he was charged with aiding and abetting co-accused Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed Ali Kadri (A-105) etc. in disposal of arms and ammunition by dumping the said consignment of arms and ammunition in Kandalgaon Creek which was recovered on 8.4.1993.
283. After conclusion of the trial, appellant (A-81) stood convicted and sentenced to suffer RI for 6 years and a fine of Rs.50,000/-, and a suitable R.I. for default of payment of fine under Section 3(3) TADA and further sentenced to suffer RI for 3 years and a fine of Rs.25,000/- for conviction under Section 111 read with Section 135(b) of the Customs Act, 1962.
284. Ms. Farhana Shah, learned counsel appearing for the appellant (A-81) and Shri Mukul Gupta, learned senior counsel appearing for the State have raised the same contentions which have been raised in respect of Abdulla Ibrahim Surti (A-66).
285. We have considered the rival submissions made by learned counsel for the parties and perused the record.
286. Evidence against the appellant (A-81):
(a) Confessional statement of the appellant (A-81)
(b) Confessional statement of Faki Ali Faki Ahmed Subedar (A- 74)
(c) Confessional statement of Jamir Sayyed Ismail Kadri (A- 133)
(d) Confessional statement of Mechanic Chacha (A-136)
(e) Deposition of Tikaram Shrawan Bhal (PW-191)
287. Confessional Statement of Janardhan Pandurang Gambas (A-81):
In his own confession he has admitted that he was a fisherman and used to help Shabir and Jamir Kadri (A-133) in smuggling. He participated in landing on 9.1.1993 at Dighi Jetty wherein arms and ammunition had been smuggled into the country with Uttam Shantaram Potdar (A-30), Mechanic Chacha (A-136) etc. and facilitated their transportation. He further confessed that he rendered assistance in hiding the said weapons in the mango grove of Abdul Razak Subedar alongwith Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed Ali Kadri (A-105) etc. He further said that he helped Shabir, Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A- 74) in taking the boxes from the house of Faki Ali Faki Ahmed Subedar (A-74) containing weapons and hiding them in mango grove. He has also admitted that he was told by Shabir (AA) that the boxes contained guns and further admitted that he had been informed by Faki Ali Faki Ahmed Subedar (A-74) that the boxes contained bullets.
288. Confessional Statement of Faki Ali Faki Ahmed Subedar (A-74):
In his confession he has admitted that he had met the appellant (A-81) at the house of Shabir and took the smuggled goods from there with the help of appellant (A-81), duly assisted by Abdullah Ibrahim Surti (A-66) and Jamir Sayyed Ismail Kadri (A-133).
289. Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
He disclosed that in January 1993 he met Uttam Shantaram Potdar (A-30), Feroz Abdul Rashid Khan and Salim (A-134) and on 9.1.1993 Uttam Shantaram Potdar (A-30) came to his house on motorcycle and asked his help in landing work.
289.1 So far as appellant (A-81) is concerned he disclosed that the wooden boxes and green coloured bags after being smuggled into this country were kept in the house of the maternal grandmother of Shabbir and were then shifted to the house of Faki Ahmed Subedar (A-74) with the help of appellant (A-81), Faki Ali Faki Ahmed Subedar (A-74) and Abdulla Ibrahim Surti (A-66). He further deposed that it was with the help of Abdullah Ibrahim Surti (A-66) and the present appellant (A-81) that the goods were loaded in the boat which were to be dumped in the sea. It was duly supported by Janu Vethkoli (PW.378). He has also deposed that appellant (A- 81) assisted in hiding weapons in the mango grove after taking away the same from the house of Faki Ahmed Subedar (A-74).
290. Confessional Statement of Mechanic Chacha (A-136):
He does not name the present appellant (A-81) directly but disclosed that it was on the instructions of co-accused that weapons were hidden by Shabir. There are further depositions of Janu Vethkoli (PW.378), T.S. Bhal (PW.191), Shridhar Borkar (PW.88), Dattatray (PW.89), Anil Baswat (PW.90) and Ashok (PW.670) to support the allegations against the present appellant A-81.
291. Deposition of Tikaram Shrawan Bhal (PW-191):
He has recorded the confessional statement of Gambas (A- 81) as well as the confession of Faki Ali Faki Ahmed Subedar (A- 74). He had deposed that he had recorded the same strictly in accordance with law, and it was a voluntary confessional statement and after recording the same he had given time to re-think as required in law, and after recording the confession, the same was forwarded to CJM, Alibagh on 21.5.1993.
292. The issue whether confessional statements made by Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) were voluntary, had been considered by the Designated Court in its judgment and after considering all the objections it came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) had made confessional statement voluntarily as T.S. Bhal (PW.191), S.P., Raigad has deposed that the appellant (A-81) was produced by Ashok Krishanji Chandgude (PW.670) before him on 20.5.1993 and after asking certain questions to him, T.S. Bhal (PW.191) was fully satisfied that appellant (A-81) wanted to make a voluntary confession. He was again asked to be produced on 21.5.1993 and on that day appellant (A-81) narrated the entire matter and his confession has been recorded verbatim. The Designated Court rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement before the court that he had never been produced before T.S. Bhal (PW.191) on either of the two days as claimed by the prosecution and his thumb impression had been obtained on blank papers while he was in custody of Alibagh Police Station. The theory was rejected.
293. After appreciating the evidence on record the learned Designated Court came to the conclusion that the involvement of the appellant (A-81) in landing at Dighi Jetty is established, but there is hardly any evidence to reveal that the appellant (A-81) had knowledge of contraband goods being arms and ammunitions, and thus the appellant (A-81) cannot be held liable for offence under Section 3(3) TADA on said count i.e. first limb of second charge, but guilty for offence punishable under Section 111 read with Section 135(b) of Customs Act, 1962 for the same.
293.1 However it was held that the appellant (A-81) after having acquired the knowledge about nature of said contraband being arms and ammunition and still having committed acts mentioned in second and third limbs of second charge i.e. concealment of weapons in mango groves and dumping of cartridges and magazines in Kandalgaon creek, he would be guilty for commission of offence under Section 3(3) TADA for the said offences.
294. More so, the Designated Court has taken into consideration the other confessional statements of other accused to support the prosecution case. We are not inclined to interfere with the judgment of the Designated court. The appeal with reference to Gambas (A-81) lacks merit and is accordingly dismissed.
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282. Appellant (A-81) was further charged for participating and assisting the co-accused Mechanic Chacha (A-136), Shabir and Jamir Kadri (A-133), Feroz Khan and co-accused Uttam Potdar (A- 30) in smuggling, landing and transportation of arms, ammunition and explosives smuggled in India on 9.1.1993. He was further charged with aiding and abetting, wanted accused Shabir and Jamir Kadri (A-133) and Faki Ali Faki Ahmed Subedar (A-74) in concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles in the mango grove of Abdul Razak Subedar, knowingly and intentionally that these arms and ammunition had been smuggled into the country for committing terrorist acts. Lastly he was charged with aiding and abetting co-accused Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed Ali Kadri (A-105) etc. in disposal of arms and ammunition by dumping the said consignment of arms and ammunition in Kandalgaon Creek which was recovered on 8.4.1993.
283. After conclusion of the trial, appellant (A-81) stood convicted and sentenced to suffer RI for 6 years and a fine of Rs.50,000/-, and a suitable R.I. for default of payment of fine under Section 3(3) TADA and further sentenced to suffer RI for 3 years and a fine of Rs.25,000/- for conviction under Section 111 read with Section 135(b) of the Customs Act, 1962.
284. Ms. Farhana Shah, learned counsel appearing for the appellant (A-81) and Shri Mukul Gupta, learned senior counsel appearing for the State have raised the same contentions which have been raised in respect of Abdulla Ibrahim Surti (A-66).
285. We have considered the rival submissions made by learned counsel for the parties and perused the record.
286. Evidence against the appellant (A-81):
(a) Confessional statement of the appellant (A-81)
(b) Confessional statement of Faki Ali Faki Ahmed Subedar (A- 74)
(c) Confessional statement of Jamir Sayyed Ismail Kadri (A- 133)
(d) Confessional statement of Mechanic Chacha (A-136)
(e) Deposition of Tikaram Shrawan Bhal (PW-191)
287. Confessional Statement of Janardhan Pandurang Gambas (A-81):
In his own confession he has admitted that he was a fisherman and used to help Shabir and Jamir Kadri (A-133) in smuggling. He participated in landing on 9.1.1993 at Dighi Jetty wherein arms and ammunition had been smuggled into the country with Uttam Shantaram Potdar (A-30), Mechanic Chacha (A-136) etc. and facilitated their transportation. He further confessed that he rendered assistance in hiding the said weapons in the mango grove of Abdul Razak Subedar alongwith Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed Ali Kadri (A-105) etc. He further said that he helped Shabir, Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A- 74) in taking the boxes from the house of Faki Ali Faki Ahmed Subedar (A-74) containing weapons and hiding them in mango grove. He has also admitted that he was told by Shabir (AA) that the boxes contained guns and further admitted that he had been informed by Faki Ali Faki Ahmed Subedar (A-74) that the boxes contained bullets.
288. Confessional Statement of Faki Ali Faki Ahmed Subedar (A-74):
In his confession he has admitted that he had met the appellant (A-81) at the house of Shabir and took the smuggled goods from there with the help of appellant (A-81), duly assisted by Abdullah Ibrahim Surti (A-66) and Jamir Sayyed Ismail Kadri (A-133).
289. Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
He disclosed that in January 1993 he met Uttam Shantaram Potdar (A-30), Feroz Abdul Rashid Khan and Salim (A-134) and on 9.1.1993 Uttam Shantaram Potdar (A-30) came to his house on motorcycle and asked his help in landing work.
289.1 So far as appellant (A-81) is concerned he disclosed that the wooden boxes and green coloured bags after being smuggled into this country were kept in the house of the maternal grandmother of Shabbir and were then shifted to the house of Faki Ahmed Subedar (A-74) with the help of appellant (A-81), Faki Ali Faki Ahmed Subedar (A-74) and Abdulla Ibrahim Surti (A-66). He further deposed that it was with the help of Abdullah Ibrahim Surti (A-66) and the present appellant (A-81) that the goods were loaded in the boat which were to be dumped in the sea. It was duly supported by Janu Vethkoli (PW.378). He has also deposed that appellant (A- 81) assisted in hiding weapons in the mango grove after taking away the same from the house of Faki Ahmed Subedar (A-74).
290. Confessional Statement of Mechanic Chacha (A-136):
He does not name the present appellant (A-81) directly but disclosed that it was on the instructions of co-accused that weapons were hidden by Shabir. There are further depositions of Janu Vethkoli (PW.378), T.S. Bhal (PW.191), Shridhar Borkar (PW.88), Dattatray (PW.89), Anil Baswat (PW.90) and Ashok (PW.670) to support the allegations against the present appellant A-81.
291. Deposition of Tikaram Shrawan Bhal (PW-191):
He has recorded the confessional statement of Gambas (A- 81) as well as the confession of Faki Ali Faki Ahmed Subedar (A- 74). He had deposed that he had recorded the same strictly in accordance with law, and it was a voluntary confessional statement and after recording the same he had given time to re-think as required in law, and after recording the confession, the same was forwarded to CJM, Alibagh on 21.5.1993.
292. The issue whether confessional statements made by Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) were voluntary, had been considered by the Designated Court in its judgment and after considering all the objections it came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas (A-81) had made confessional statement voluntarily as T.S. Bhal (PW.191), S.P., Raigad has deposed that the appellant (A-81) was produced by Ashok Krishanji Chandgude (PW.670) before him on 20.5.1993 and after asking certain questions to him, T.S. Bhal (PW.191) was fully satisfied that appellant (A-81) wanted to make a voluntary confession. He was again asked to be produced on 21.5.1993 and on that day appellant (A-81) narrated the entire matter and his confession has been recorded verbatim. The Designated Court rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement before the court that he had never been produced before T.S. Bhal (PW.191) on either of the two days as claimed by the prosecution and his thumb impression had been obtained on blank papers while he was in custody of Alibagh Police Station. The theory was rejected.
293. After appreciating the evidence on record the learned Designated Court came to the conclusion that the involvement of the appellant (A-81) in landing at Dighi Jetty is established, but there is hardly any evidence to reveal that the appellant (A-81) had knowledge of contraband goods being arms and ammunitions, and thus the appellant (A-81) cannot be held liable for offence under Section 3(3) TADA on said count i.e. first limb of second charge, but guilty for offence punishable under Section 111 read with Section 135(b) of Customs Act, 1962 for the same.
293.1 However it was held that the appellant (A-81) after having acquired the knowledge about nature of said contraband being arms and ammunition and still having committed acts mentioned in second and third limbs of second charge i.e. concealment of weapons in mango groves and dumping of cartridges and magazines in Kandalgaon creek, he would be guilty for commission of offence under Section 3(3) TADA for the said offences.
294. More so, the Designated Court has taken into consideration the other confessional statements of other accused to support the prosecution case. We are not inclined to interfere with the judgment of the Designated court. The appeal with reference to Gambas (A-81) lacks merit and is accordingly dismissed.
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