Mohamed Dawood Mohamed Yusuf Khan Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1419 of 2007
Petitioner: Mohamed Dawood Mohamed Yusuf Khan
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1419 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
Sections 3(3), 5, 15 Arms Act 1959, Sections 3, 7 read with 25(1-A)(1B)(a) – Charges under Acquittal under the charge of conspiracy AppellantA 91 accused of keeping three AK 56 rifles and nine empty magazine at the instance of A 137 unauthorisedly in a notified area In confessional statement, appellant confessed having kept the said contraband in a bag in his almirah Family members wrongly informed that said bag contained cutlery items After few days, arms shifted to his mother in laws house on wrong pretext His version corroborated by confessional statement of A 137 A 91 retracted his confessional statement Disclosure Panchnama prepared, signed by panch witnesses – FSL report positive PW 278 (Chowkidar) confirmed the visit of A137 and A24 on the day when they gave weapons to appellant Panch witnesses confirmed recovery panchanama – Designated Court, on facts, convicting appellant under Arms Act and Sections 3(3) & 5 of TADA holding him guilty of unauthorisedly possessing contraband in notified area. Held no interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 15 Arms Act 1959, Sections 3, 7 read with 25(1-A)(1B)(a) – Charges under Acquittal under the charge of conspiracy AppellantA 91 accused of keeping three AK 56 rifles and nine empty magazine at the instance of A 137 unauthorisedly in a notified area In confessional statement, appellant confessed having kept the said contraband in a bag in his almirah Family members wrongly informed that said bag contained cutlery items After few days, arms shifted to his mother in laws house on wrong pretext His version corroborated by confessional statement of A 137 A 91 retracted his confessional statement Disclosure Panchnama prepared, signed by panch witnesses – FSL report positive PW 278 (Chowkidar) confirmed the visit of A137 and A24 on the day when they gave weapons to appellant Panch witnesses confirmed recovery panchanama – Designated Court, on facts, convicting appellant under Arms Act and Sections 3(3) & 5 of TADA holding him guilty of unauthorisedly possessing contraband in notified area. Held no interference needed.
Held:
Evidence against the appellant (A-91):
a) Confessional statement of the appellant (A-91), b) Confessional statement of Eijaz Pathan (A-137), c) Deposition of Moiddin Kabir (PW-58), d) Deposition of Ashok Kumar Harivillas Pandey (PW-59), e) Deposition of Hirasingh K. Thapa (PW-278), f) Deposition of Vijjay Dagdu Kadam (PW-344), g) Deposition of Suresh Ganpath Narathe (PW-522). (Para 98)
Charges against the appellant has been held to be proved, and the Designated Court has come to the conclusion that Eijaz Pathan (A-137) having received the contraband material within notified area, gave the same to the appellant (A-91), who has agreed to keep the said material with him. It was held that Eijaz Pathan (A-137) having kept the bag of contraband at the house of the appellant (A-91), thereafter the further act of the appellant (A -91) in shifting the same to the house of his mother-in-law clearly shows that he had dominium and control over the same. The accused falsely told his family members and later on to his mother-in-law that the bags contained goods of his friend and the same may not be opened. Hence, the appellant (A-91) being in unauthorised possession of contraband in notified area of Bombay was guilty under Section 5 TADA. Similarly, the appellant (A- 91) would also be guilty for commission of offences under Section 3(3) TADA and under Sections 3 and 7 read with Section 25(l-A)(l-B)(a) Arms Act. More so, recovery was made at his behest and on his disclosure statement. (Para 104)
Considering the fact that the said acts had been committed by the appellant (A-91) at the behest of Eijaz Pathan (A- 137), and that the same cannot be said to have been done for the purpose of furthering the object of a criminal conspiracy i.e. first charge, or even a smaller facet of the same, and there being no evidence available to establish the nexus of the appellant (A-91) with such a conspiracy, he was not held guilty of conspiracy i.e. of the first charge. (Para 106)
The appellant (A-91) had kept in his possession unauthorisedly weapons at the behest of Eijaz Pathan (A-137-dead). The recovery of the same at his behest stood proved. The prosecution successfully proved its case and to that extent he has been convicted by the Designated Court. We find no cogent reason to interfere with the judgment of the learned Designated Court. (Para 107)
JUDGEMENT:
Judgment (Contd.)
93. This appeal has been preferred against the judgment and order dated 30.5.2007, passed by a Special Judge of the Designated Court under the TADA for the Bombay Blast Case No.1/93, Greater Bombay, by which the appellant has been convicted under Section 3(3) TADA and has been sentenced to suffer RI for six years, alongwith a fine of Rs. 25,000/-, and in default of payment of fine to further undergo six months RI; and under Section 5 TADA, the same sentence has been awarded. He has further been convicted under the Arms Act, but no separate sentence has been awarded for the same. Both the sentences have been ordered to run concurrently.
94. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A- 91), in pursuance of criminal conspiracy during the period between January 1993 and April 1993, had agreed to keep in his possession, 3 AK-56 rifles, and 9 empty magazines, which were a part of the smuggled consignment, at the instance of accused Eijaz (A-137-dead) in an unauthorised manner and thereby, has committed an offence punishable under Section 3(3) TADA; and that he had acquired 3 AK-56 rifles and 9 empty magazines and had kept them in the notified area under Section 2 TADA, and thus, he has been charged under Section 5 TADA.
B. Further, for possessing the said arms, the appellant has also been charged under Section 6 TADA, and under the provisions of Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms Act.
C. The appellant has been acquitted of the first charge, but has been convicted under Section 3(3) and Section 5 TADA, and also under the Arms Act, as has been mentioned above.
Hence, this appeal.
95. Shri Mushtaq Ahmad, learned counsel appearing for the appellant, has submitted that the conviction of the appellant under the provisions of Sections 3(3) and 5 TADA is not sustainable, as the confessional statement of the appellant, as well as those of the co- accused, are inadmissible in view of the same not being voluntary, and having been made under coercion while in police custody. The confessional statement had also been retracted just after the filing of the charge sheet. It has further been submitted that the panch witnesses could not be relied upon as they were stock witnesses. Therefore, the conviction is liable to be set aside, and the appeal deserves to be allowed.
96. Shri Mukul Gupta, learned senior counsel appearing for the State has vehemently opposed the appeal, submitting that the confession of the appellant as well as those of the co-accused, which have been relied upon, were made voluntarily. He has further submitted that the retraction is not worth consideration, and that the panch witnesses were not stock witnesses, and that therefore, their testimony deserves to be allowed. Thus, the appeal lacks merit and is liable to be dismissed.
97. We have considered rival submissions made by learned counsel for the parties and perused the record.
98. Evidence against the appellant (A-91):
a) Confessional statement of the appellant (A-91)
b) Confessional statement of Eijaz Pathan (A-137)
c) Deposition of Moiddin Kabir (PW-58)
d) Deposition of Ashok Kumar Harivillas Pandey (PW-59)
e) Deposition of Hirasingh K. Thapa (PW-278)
f) Deposition of Vijjay Dagdu Kadam (PW-344)
g) Deposition of Suresh Ganpath Narathe (PW-522)
99. Confessional statement of the appellant (A-91) :
The appellant (A-91), in his confessional statement dated 29.4.1993 has stated that he had been acquainted with Munna (A-24) and Eijaz Pathan (A-137 now dead). Seven-eight days before Ramzan, at the instance of Eijaz Pathan (A-137), the appellant (A-91) had gone to the office of M.K. Builders. From there, he alongwith Munna and Eijaz had travelled in a Maruti car in which one bag had also been placed. Eijaz had told the appellant (A-91) that the bag contained 3 stun- guns, and that the appellant (A-91) had to keep the same concealed in his house. The appellant (A-91) had taken the said bag, containing the 3 stun-guns and 9 empty magazines, to his house and kept the same in a Godrej almirah. He had falsely informed his family members that the bag contained some cutlery items that belonged to his employer, and had directed that none of them must open it. After eight-ten days, the appellant (A-91) had shifted the stun-guns from one bag to another and had kept the same in his mother-in-laws house, and had told her falsely that the bag contained certain items that belonged to his friend, and that she must not open the same. It had been at his instance, that the police had made recoveries of the said arms from the house of his mother-in-law.
The above version of events has been corroborated by Eijaz Pathan (A-137-dead) in his confession recorded on 21st and 22nd February 2003 by Pramod Mudbhachal, Dy.SP, CBI, STF in all material respects.
A-91 retracted the confessional statement dated 29.4.1993 on 23.12.1993.
100. Suresh Narathe (PW-522), a Sub-Inspector of Police had prepared the disclosure Panchnama Ext. 265 in the presence of Ashok Kumar Harivillas Pandey (PW-59), panch witness, on 9.4.1993, and in pursuance of the said disclosure Panchnama, 3 AK-56 rifles and 9 empty black coloured magazines had been recovered vide seizure Panchnama Ext. 281. The seized articles had been sent to FSL for opinion, vide Ext. 1805 and a positive FSL Report (Ext.1806) had thereafter, been received.
101. Viijay Dagdu Kadam (PW-344) a Sub-Inspector of Police, who had arrested A-91 has stated that on 28.4.1993, the appellant (A-91) had expressed his willingness to make a confession voluntarily, and thus, he had written a letter on the very same day to Shri Lokhande, DCP, for the purpose of recording his confession. He has proved the letter marked as Ext. X-211, and the contents of the said letter have been found to be true and correct, and the same also bear his signature. He had sent the recovered materials for FSL for examination, vide letter dated 20.4.1993 (Ext. 1805). He has further deposed that on 10.5.1993, he had received an FSL report regarding the articles that had been sent by him, and has stated that the said report was positive.
102. Hirasingh K. Thapa (PW-278), watchman of the Navjeevan Society where the appellant (A-91) resided, has corroborated the confession of (A-91) in respect of the visit of Munna (A-24) and Eijaz Pathan (A- 137) to the said society on the day that the said weapons had been given to the appellant (A-91). Hirasingh K. Thapa (PW.278) has identified Munna (A-24) in the T.I. Parade (Ext. 1490) held by Vithal Sonawane (PW-465).
103. Moiddin Kabir (PW-58) and Ashok Kumar Harivillas Pandey (PW-59) were panch witnesses. Ashok Kumar Harivillas Pandey (PW-59) had worked as a watchman at Saldhana Apartments in Chembur for a long time. He has deposed that he had been called to be a panch witness. He has proved the disclosure panchnama, as well as the recovery panchnama, and it was in his presence that the appellant (A-91) had made a disclosure as regards the 3 AK-56 rifles and 9 empty magazines. Their recovery had been made at his behest from the residence of his mother-in-law. Moiddin Kabir (PW-58) has also corroborated the version of events provided by Ashok Kumar Harivillas Pandey (PW-59).
104. This charge against the appellant has been held to be proved, and the Designated Court has come to the conclusion that Eijaz Pathan (A-137) having received the contraband material within notified area, gave the same to the appellant (A-91), who has agreed to keep the said material with him. It was held that Eijaz Pathan (A-137) having kept the bag of contraband at the house of the appellant (A-91), thereafter the further act of the appellant (A -91) in shifting the same to the house of his mother-in-law clearly shows that he had dominium and control over the same. The accused falsely told his family members and later on to his mother-in-law that the bags contained goods of his friend and the same may not be opened. Hence, the appellant (A-91) being in unauthorised possession of contraband in notified area of Bombay was guilty under Section 5 TADA. Similarly, the appellant (A- 91) would also be guilty for commission of offences under Section 3(3) TADA and under Sections 3 and 7 read with Section 25(l-A)(l-B)(a) Arms Act. More so, recovery was made at his behest and on his disclosure statement.
105. It has been held that considering the manner in which, and the reason because of which the appellant (A-91) had agreed to keep the said contraband at his house, and the fact that the same had not been for the purpose of aiding a terrorist, appellant (A-91) was not held guilty for the offence under Section 6 TADA.
106. Furthermore, considering the fact that the said acts had been committed by the appellant (A-91) at the behest of Eijaz Pathan (A- 137), and that the same cannot be said to have been done for the purpose of furthering the object of a criminal conspiracy i.e. first charge, or even a smaller facet of the same, and there being no evidence available to establish the nexus of the appellant (A-91) with such a conspiracy, he was not held guilty of conspiracy i.e. of the first charge.
107. In view of the aforesaid evidence, it becomes clear that the appellant (A-91) had kept in his possession unauthorisedly weapons at the behest of Eijaz Pathan (A-137-dead). The appellant told his mother- in-law and other family members that the goods belonged to his friend, and nobody should open the same. The recovery of the same at his behest stood proved. The prosecution successfully proved its case and to that extent he has been convicted by the Designated Court. We find no cogent reason to interfere with the judgment of the learned Designated Court. The appeal lacks merit, and is accordingly dismissed.
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93. This appeal has been preferred against the judgment and order dated 30.5.2007, passed by a Special Judge of the Designated Court under the TADA for the Bombay Blast Case No.1/93, Greater Bombay, by which the appellant has been convicted under Section 3(3) TADA and has been sentenced to suffer RI for six years, alongwith a fine of Rs. 25,000/-, and in default of payment of fine to further undergo six months RI; and under Section 5 TADA, the same sentence has been awarded. He has further been convicted under the Arms Act, but no separate sentence has been awarded for the same. Both the sentences have been ordered to run concurrently.
94. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A- 91), in pursuance of criminal conspiracy during the period between January 1993 and April 1993, had agreed to keep in his possession, 3 AK-56 rifles, and 9 empty magazines, which were a part of the smuggled consignment, at the instance of accused Eijaz (A-137-dead) in an unauthorised manner and thereby, has committed an offence punishable under Section 3(3) TADA; and that he had acquired 3 AK-56 rifles and 9 empty magazines and had kept them in the notified area under Section 2 TADA, and thus, he has been charged under Section 5 TADA.
B. Further, for possessing the said arms, the appellant has also been charged under Section 6 TADA, and under the provisions of Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms Act.
C. The appellant has been acquitted of the first charge, but has been convicted under Section 3(3) and Section 5 TADA, and also under the Arms Act, as has been mentioned above.
Hence, this appeal.
95. Shri Mushtaq Ahmad, learned counsel appearing for the appellant, has submitted that the conviction of the appellant under the provisions of Sections 3(3) and 5 TADA is not sustainable, as the confessional statement of the appellant, as well as those of the co- accused, are inadmissible in view of the same not being voluntary, and having been made under coercion while in police custody. The confessional statement had also been retracted just after the filing of the charge sheet. It has further been submitted that the panch witnesses could not be relied upon as they were stock witnesses. Therefore, the conviction is liable to be set aside, and the appeal deserves to be allowed.
96. Shri Mukul Gupta, learned senior counsel appearing for the State has vehemently opposed the appeal, submitting that the confession of the appellant as well as those of the co-accused, which have been relied upon, were made voluntarily. He has further submitted that the retraction is not worth consideration, and that the panch witnesses were not stock witnesses, and that therefore, their testimony deserves to be allowed. Thus, the appeal lacks merit and is liable to be dismissed.
97. We have considered rival submissions made by learned counsel for the parties and perused the record.
98. Evidence against the appellant (A-91):
a) Confessional statement of the appellant (A-91)
b) Confessional statement of Eijaz Pathan (A-137)
c) Deposition of Moiddin Kabir (PW-58)
d) Deposition of Ashok Kumar Harivillas Pandey (PW-59)
e) Deposition of Hirasingh K. Thapa (PW-278)
f) Deposition of Vijjay Dagdu Kadam (PW-344)
g) Deposition of Suresh Ganpath Narathe (PW-522)
99. Confessional statement of the appellant (A-91) :
The appellant (A-91), in his confessional statement dated 29.4.1993 has stated that he had been acquainted with Munna (A-24) and Eijaz Pathan (A-137 now dead). Seven-eight days before Ramzan, at the instance of Eijaz Pathan (A-137), the appellant (A-91) had gone to the office of M.K. Builders. From there, he alongwith Munna and Eijaz had travelled in a Maruti car in which one bag had also been placed. Eijaz had told the appellant (A-91) that the bag contained 3 stun- guns, and that the appellant (A-91) had to keep the same concealed in his house. The appellant (A-91) had taken the said bag, containing the 3 stun-guns and 9 empty magazines, to his house and kept the same in a Godrej almirah. He had falsely informed his family members that the bag contained some cutlery items that belonged to his employer, and had directed that none of them must open it. After eight-ten days, the appellant (A-91) had shifted the stun-guns from one bag to another and had kept the same in his mother-in-laws house, and had told her falsely that the bag contained certain items that belonged to his friend, and that she must not open the same. It had been at his instance, that the police had made recoveries of the said arms from the house of his mother-in-law.
The above version of events has been corroborated by Eijaz Pathan (A-137-dead) in his confession recorded on 21st and 22nd February 2003 by Pramod Mudbhachal, Dy.SP, CBI, STF in all material respects.
A-91 retracted the confessional statement dated 29.4.1993 on 23.12.1993.
100. Suresh Narathe (PW-522), a Sub-Inspector of Police had prepared the disclosure Panchnama Ext. 265 in the presence of Ashok Kumar Harivillas Pandey (PW-59), panch witness, on 9.4.1993, and in pursuance of the said disclosure Panchnama, 3 AK-56 rifles and 9 empty black coloured magazines had been recovered vide seizure Panchnama Ext. 281. The seized articles had been sent to FSL for opinion, vide Ext. 1805 and a positive FSL Report (Ext.1806) had thereafter, been received.
101. Viijay Dagdu Kadam (PW-344) a Sub-Inspector of Police, who had arrested A-91 has stated that on 28.4.1993, the appellant (A-91) had expressed his willingness to make a confession voluntarily, and thus, he had written a letter on the very same day to Shri Lokhande, DCP, for the purpose of recording his confession. He has proved the letter marked as Ext. X-211, and the contents of the said letter have been found to be true and correct, and the same also bear his signature. He had sent the recovered materials for FSL for examination, vide letter dated 20.4.1993 (Ext. 1805). He has further deposed that on 10.5.1993, he had received an FSL report regarding the articles that had been sent by him, and has stated that the said report was positive.
102. Hirasingh K. Thapa (PW-278), watchman of the Navjeevan Society where the appellant (A-91) resided, has corroborated the confession of (A-91) in respect of the visit of Munna (A-24) and Eijaz Pathan (A- 137) to the said society on the day that the said weapons had been given to the appellant (A-91). Hirasingh K. Thapa (PW.278) has identified Munna (A-24) in the T.I. Parade (Ext. 1490) held by Vithal Sonawane (PW-465).
103. Moiddin Kabir (PW-58) and Ashok Kumar Harivillas Pandey (PW-59) were panch witnesses. Ashok Kumar Harivillas Pandey (PW-59) had worked as a watchman at Saldhana Apartments in Chembur for a long time. He has deposed that he had been called to be a panch witness. He has proved the disclosure panchnama, as well as the recovery panchnama, and it was in his presence that the appellant (A-91) had made a disclosure as regards the 3 AK-56 rifles and 9 empty magazines. Their recovery had been made at his behest from the residence of his mother-in-law. Moiddin Kabir (PW-58) has also corroborated the version of events provided by Ashok Kumar Harivillas Pandey (PW-59).
104. This charge against the appellant has been held to be proved, and the Designated Court has come to the conclusion that Eijaz Pathan (A-137) having received the contraband material within notified area, gave the same to the appellant (A-91), who has agreed to keep the said material with him. It was held that Eijaz Pathan (A-137) having kept the bag of contraband at the house of the appellant (A-91), thereafter the further act of the appellant (A -91) in shifting the same to the house of his mother-in-law clearly shows that he had dominium and control over the same. The accused falsely told his family members and later on to his mother-in-law that the bags contained goods of his friend and the same may not be opened. Hence, the appellant (A-91) being in unauthorised possession of contraband in notified area of Bombay was guilty under Section 5 TADA. Similarly, the appellant (A- 91) would also be guilty for commission of offences under Section 3(3) TADA and under Sections 3 and 7 read with Section 25(l-A)(l-B)(a) Arms Act. More so, recovery was made at his behest and on his disclosure statement.
105. It has been held that considering the manner in which, and the reason because of which the appellant (A-91) had agreed to keep the said contraband at his house, and the fact that the same had not been for the purpose of aiding a terrorist, appellant (A-91) was not held guilty for the offence under Section 6 TADA.
106. Furthermore, considering the fact that the said acts had been committed by the appellant (A-91) at the behest of Eijaz Pathan (A- 137), and that the same cannot be said to have been done for the purpose of furthering the object of a criminal conspiracy i.e. first charge, or even a smaller facet of the same, and there being no evidence available to establish the nexus of the appellant (A-91) with such a conspiracy, he was not held guilty of conspiracy i.e. of the first charge.
107. In view of the aforesaid evidence, it becomes clear that the appellant (A-91) had kept in his possession unauthorisedly weapons at the behest of Eijaz Pathan (A-137-dead). The appellant told his mother- in-law and other family members that the goods belonged to his friend, and nobody should open the same. The recovery of the same at his behest stood proved. The prosecution successfully proved its case and to that extent he has been convicted by the Designated Court. We find no cogent reason to interfere with the judgment of the learned Designated Court. The appeal lacks merit, and is accordingly dismissed.
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