Mohd. Rafiq @ Rafiq Madi Musa Biyariwala Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1420 of 2007
And
The State of Maharashtra thr. CBI v. Mohd. Rafiq @ Rafiq Madi Musa Biyariwala
Criminal Appeal No. 1031 of 2012
And
The State of Maharashtra thr. CBI v. Mohd. Rafiq @ Rafiq Madi Musa Biyariwala
Criminal Appeal No. 1031 of 2012
Petitioner: Mohd. Rafiq @ Rafiq Madi Musa Biyariwala
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1420 of 2007
And
The State of Maharashtra thr. CBI v. Mohd. Rafiq @ Rafiq Madi Musa Biyariwala
Criminal Appeal No. 1031 of 2012
And
The State of Maharashtra thr. CBI v. Mohd. Rafiq @ Rafiq Madi Musa Biyariwala
Criminal Appeal No. 1031 of 2012
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 3(3) – Conviction under – Bombay Blast case – Appellant A46, driver of Tiger Memon (AA), on 03.02.1993 along with others took smuggled goods and came to Tower in a jeep – Later loaded a truck with gunny bags taken from jeep and covered it with empty gunny bags – Handed over vehicle containing arms to A-68 – Confessional statement of A-46 and other co-accused – Admitted transporting smuggled goods – Denied knowledge of illegal activities of Tiger Memon or nature of the contraband smuggled into India – Designated Court holding accused guilty of actively participating in landing/transportation of contraband, having full knowledge of the illegal activities of Tiger Memon (AA). Held, order of sentence under Section 3(3) of TADA correct. However, no material to establish nexus of A-46 with conspiracy. Hence appeal filed by State, dismissed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – Appellant A46, driver of Tiger Memon (AA), on 03.02.1993 along with others took smuggled goods and came to Tower in a jeep – Later loaded a truck with gunny bags taken from jeep and covered it with empty gunny bags – Handed over vehicle containing arms to A-68 – Confessional statement of A-46 and other co-accused – Admitted transporting smuggled goods – Denied knowledge of illegal activities of Tiger Memon or nature of the contraband smuggled into India – Designated Court holding accused guilty of actively participating in landing/transportation of contraband, having full knowledge of the illegal activities of Tiger Memon (AA). Held, order of sentence under Section 3(3) of TADA correct. However, no material to establish nexus of A-46 with conspiracy. Hence appeal filed by State, dismissed.
Held:
The Designated Court after appreciating the entire evidence on record came to the conclusion that the appellant (A-46) actively participated in the Shekhadi landing and transportation operation of contraband goods i.e. AK-56 rifles, ammunition, RDX etc. smuggled into the country by Tiger Memon (AA). Confession of the appellant (A-46) revealed that he was in employment of the Memon family, however he had been to Shekhadi landing. It could not be accepted that the appellant (A-46) was not aware of illegal business of Tiger Memon (AA) or about the nature of the contrabands smuggled into India. The presence of the appellant (A- 46) at the place where the goods were exchanged, at Wangni Tower and concealed into cavities of vehicles for transportation to Bombay, shows that he was a person of very close confident of Tiger Memon (AA). The appellant (A-46) handed over a motor vehicle containing arms and ammunitions at residence of Amjaz Abdul Aziz Meharbux (A-68). (Para 116)
Confessions of co-accused clearly established the involvement of the appellant (A-46) along with Asgar (A-10) for taking co-accused persons, who were sent for training to Pakistan via Dubai, though he may not be aware of the purpose for which the co-accused were sent to Dubai. (Para 116.1)
In view of the above well reasoned judgment, we do not find any evidence on record to warrant interference in the conclusion drawn by the Designated Court. The appeal lacks merit and is accordingly dismissed. (Para 116.2)
On the first charge, the learned Designated Court considered the entire evidence and came to the conclusion:
However hardly there being cementing material for establishing nexus of A-46 with conspiracy for which he is charged with and material having remained confined of himself having committed of aforesaid offences, it will be difficult to hold him liable for conspiracy for which he is charged with. The same is obvious as hardly there is any material indicating A-46 having committed any other acts because of which he is said to have further object of conspiracy for which he is charged with. (Para 118)
JUDGEMENT:
Dr. B.S. Chauhan, J.
Appeal dismissed.
Criminal Appeal No. 1420 of 2007
100. This appeal has been preferred against the judgment and order dated 31.5.2007, passed by Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, by which the appellant (A-46) has been convicted under Section 3(3) TADA. However, Criminal Appeal No.1031 of 2012 has been filed by the State against the said judgment as A-46 stood acquitted of the charge of larger conspiracy.
101. Facts and circumstances giving rise to this appeal are that:
A. In addition to the main charge of conspiracy, the appellant (A-46) was charged for participation in landing and transportation of arms, ammunition, hand grenades and explosives like RDX to be used in Bombay blast on 12.3.1993.
B. He was further charged for abetting and participating in terrorist activities as the appellant participated in the month of February 1993 alongwith co-conspirators in the landing of arms, ammunition and explosives at Shekhadi. Further he (A- 46) alongwith co-accused Asgar Mukadam drove other co-accused to Sahar Airport who had gone for training to Pakistan. Further he delivered motor vehicle having arms, ammunition and explosives at the residence of Amjad Aziz Meharbux and thereby committed a separate offence punishable under Section 3(3) TADA.
C. The appellant was further charged under Section 6 TADA for possessing and transporting arms, ammunition and explosives like hand grenades and detonators from Shekhadi to Bombay in an unauthorized manner.
102. The appellant (A-46) has been convicted under Section 3(3) TADA, and given a sentence of R.I. 5 years and a fine of Rs.25,000/- and in default of payment of fine, to suffer further imprisonment of six months; under Section 6 TADA, a sentence of R.I. 7 years and a fine of Rs.50,000/- and in default of payment of fine, to further suffer one year RI. Both the sentences were directed to run concurrently.
Hence, this appeal.
103. Shri Mushtaq Ahmad, learned counsel appearing on behalf of the appellant, has submitted that the appellant (A-46) has wrongly been enroped in the crime, he was no where involved. The confessional statements of the appellant as well as the co-accused could not be relied upon as it has been obtained by coercion and it could not be held to be useful and truthful. More so, the learned Designated Court failed to appreciate the evidence in correct perspective. Therefore, appeal deserves to be allowed.
104. Per contra, Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, opposed the appeal contending that the appellant had been deeply involved, not only in the landing and transportation of the smuggled goods, but being a very close associate of Tiger Memon (AA), was involved in the conspiracy also for which he has wrongly been acquitted. The evidence on record fully established his involvement in the crime. Thus, appeal lacks merit and is liable to be dismissed.
104.1 We have heard learned counsel for the parties and perused the record.
105. Evidence against the appellant (A-46):
(a) Confessional statement of Rafiq Madi (A-46)
(b) Confession of Asgar Yusuf Mukadam @ Munna (A-10)
(c) Confession of Abdul Gani Ismail Turk (A-11)
(d) Confession of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confession of Dawood Taklya Mohammed Phanse (A-14)
(f) Confession of Dadabhai (A-17)
(g) Confession of Shahnawaz Abdul Kadar (A-29)
(h) Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A- 64)
(i) Confession of Altaf Ali Mustaq Ali Sayed (A-67)
(j) Confession of Gulam Hafiz Shaikh @ Baba (A-73)
(k) Confession of Mubina @ Baya Moosa Bhiwandiwala (A-96)
(l) Confession of Parvez Mohmed Parvez Zulfikar Qureshi @ Parvez Kelewala (A-100)
(m) Deposition of Usman (PW-2)
Confessional statement of Rafiq Madi (A-46):
106. In his confessional statement, appellant (A-46) has deposed that he used to work as driver for Tiger Memons family and sometimes, when he was unemployed, used to sell clothes or cassettes on footpath. He worked as driver of Mushtaq Abdul Razak Memon @ Ibrahim @ Tiger for about 10-12 months. Tiger Memon (AA) had been involved in Hawala business and smuggling of gold and silver from Dubai. The appellant (A- 46) used to participate in landing and transportation of the smuggled goods and was being paid Rs. 2500/- as salary per month and Rs.3000 to 4000 per landing in addition to salary. Tigers office stood closed due to riots in Bombay in December 1992 and January 1993, thus, the appellant lost his work like a large number of other youths. One day when he went to the house of Tiger for collection of his salary for December, 1992 he (A-46) was directed to go out for Tigers work. Appellant (A-46) was not willing to go for the work as he was not feeling well, however being poor he went because of offer of money. Appellant (A-46) went in a jeep alongwith Tiger, Yakub Yeda, Javed Chikna, Usman and his associates for landing of smuggled goods. Dawood Taklya (A-14) was present there alongwith his associates. They waited the whole night but the smuggled goods did not come. They came back and stayed in a Hotel and in the evening they went to the landing point but the articles did not arrive that night also. They came to Alibagh and stayed in a hotel for 2-3 days. On 3.2.1993 night, the appellant alongwith others proceeded from Alibagh and reached the place of landing. Tiger and Yakub were also there.
106.1 Appellant (A-46) after taking the smuggled goods, which was in boxes came to the Tower in the jeep at 11.30 p.m. On being asked, Shafi told that the boxes contained electronic goods. On 4.2.1993 appellant (A-46) went to the house of Dadabhai (A-17) where Shafi asked the appellant (A-46) to load the articles from the tower. Appellant (A-46) alongwith Dadabhai (A-17) and Shafi reached the tower with a truck and Maruti van and loaded the truck with 59 gunny bags and covered the same with empty gunny bags. Shafi left from there taking the truck. The appellant (A-46) and Dadabhai (A-17) went to the house of Dadabhai (A-17) and slept after having the dinner. On 5.2.1993 the appellant (A-46) went to Mahad and then to Nagothane in Maruti van. The vehicle being driven by Shafi was left at Nagothane. Appellant (A-46), Shafi and Dadabhai (A-17) left for Alibagh to bring Mohd. Hussain. From there Shafi left by jeep instructing the appellant (A-46) to reach at Bandra Talab with Maruti Van near in the evening. There the appellant (A-46) would exchange the van with a jeep given by Riaz. On 6.2.1993 the appellant (A-46) met Anwar at 11 OClock in the morning near his house. They went to bungalow of Meharbux (Discharged Accused) at Mahim in that vehicle. The appellant (A-46) was asked to remove the jeep and park it at the house of Meharbux.
Confession of Asgar Yusuf Mukadam @ Munna (A-10)
107. Asgar Yusuf Mukadam @ Munna (A-10) in his confessional statement has involved appellant (A-46) to the effect that he had been working for Tiger Memon (AA) and he dropped the co- accused (A-10) to Sahar Airport from where A-10 alongwith others went to Dubai.
Confession of Abdul Gani Ismail Turk (A-11)
108. Abdul Gani Ismail Turk (A-11) has disclosed in his confessional statement that appellant (A-46) participated in the landing at Mhasla made by Tiger Memon (AA).
Confession of Parvez Nazir Ahmed Shaikh (A-12)
109. Parvez Nazir Ahmed Shaikh (A-12) stated in his confessional statement that appellant (A-46) was present at Al Husseini Building and money had been paid to (A-46) in his presence.
Confession of Dawood Taklya Mohammed Phanse (A-14)
110. Dawood Taklya Mohammed Phanse (A-14) disclosed that appellant (A-46) told him that his ticket had been booked and he had to leave for Dubai on the same day.
Confession of Dadabhai (A-17)
111. Dadabhai (A-17) disclosed that he alongwith appellant (A- 46) and Shafi facilitated and participated in transfer of smuggled goods from Wangni Tower to Bombay.
Confession of Shahnawaz Abdul Kadar (A-29)
112. Shahnawaz Abdul Kadar Qureshi (A-29) disclosed that appellant (A-46) was among the persons who participated in several landings. Appellant (A-46) had come to his residence and told him that his tickets were ready. He (A-46) was present at the airport and a sum of Rs. 50,000/- was paid to him for distribution among other co-accused.
Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A- 64)
113. Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) has disclosed that in January, 1993 he had seen appellant (A- 46) waiting for co-accused and appellant (A-46) was always seen with Tiger Memon (AA) and used to communicate Tigers messages. A-46 was also present at the Al-Husseini Building in the intervening night between 11th/12th March, 1993 when the RDX was filled up in the vehicles.
114. Bashir Ahmed Usman Gani Khairulla (Bashir Electrical) (A- 13), Altaf Ali Mustaq Ali Sayed (A-67), Gulam Hafiz Shaikh @ Baba (A-73), Gul Mohammed @ Gullu Noor Mohmed Shaikh (A- 77), Mubina @ Baya Moosa Bhiwandiwala (A-96) and Parvez Mohmed Parvez Zulfikar Qureshi @ Parvez Kelewala (A-100) have also named the appellant A-46 giving details of his involvement in landings etc.
Deposition of Usman Jan Khan (PW-2)
115. Usman Jan Khan (PW-2) has identified the appellant (A-46) in court and also disclosed that he was active participant in landing and transportation.
116. The Designated Court after appreciating the entire evidence on record came to the conclusion that the appellant (A-46) actively participated in the Shekhadi landing and transportation operation of contraband goods i.e. AK-56 rifles, ammunition, RDX etc. smuggled into the country by Tiger Memon (AA). Confession of the appellant (A-46) revealed that he was in employment of the Memon family, however he had been to Shekhadi landing. It could not be accepted that the appellant (A-46) was not aware of illegal business of Tiger Memon (AA) or about the nature of the contrabands smuggled into India. The presence of the appellant (A- 46) at the place where the goods were exchanged, at Wangni Tower and concealed into cavities of vehicles for transportation to Bombay, shows that he was a person of very close confident of Tiger Memon (AA). The appellant (A-46) handed over a motor vehicle containing arms and ammunitions at residence of Amjaz Abdul Aziz Meharbux (A-68).
116.1 Confessions of co-accused clearly established the involvement of the appellant (A-46) along with Asgar (A-10) for taking co-accused persons, who were sent for training to Pakistan via Dubai, though he may not be aware of the purpose for which the co-accused were sent to Dubai.
116.2 In view of the above well reasoned judgment, we do not find any evidence on record to warrant interference in the conclusion drawn by the Designated Court. The appeal lacks merit and is accordingly dismissed.
Criminal Appeal No. 1031 of 2012
117. This appeal has been filed by the State against the acquittal of the respondent of the charge of larger conspiracy.
118. On the first charge, the learned Designated Court considered the entire evidence as referred to hereinabove and came to the conclusion:
However hardly there being cementing material for establishing nexus of A-46 with conspiracy for which he is charged with and material having remained confined of himself having committed of aforesaid offences, it will be difficult to hold him liable for conspiracy for which he is charged with. The same is obvious as hardly there is any material indicating A-46 having committed any other acts because of which he is said to have further object of conspiracy for which he is charged with.
119. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
120. In view of the above, the appeal is liable to be dismissed.
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Appeal dismissed.
Criminal Appeal No. 1420 of 2007
100. This appeal has been preferred against the judgment and order dated 31.5.2007, passed by Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, by which the appellant (A-46) has been convicted under Section 3(3) TADA. However, Criminal Appeal No.1031 of 2012 has been filed by the State against the said judgment as A-46 stood acquitted of the charge of larger conspiracy.
101. Facts and circumstances giving rise to this appeal are that:
A. In addition to the main charge of conspiracy, the appellant (A-46) was charged for participation in landing and transportation of arms, ammunition, hand grenades and explosives like RDX to be used in Bombay blast on 12.3.1993.
B. He was further charged for abetting and participating in terrorist activities as the appellant participated in the month of February 1993 alongwith co-conspirators in the landing of arms, ammunition and explosives at Shekhadi. Further he (A- 46) alongwith co-accused Asgar Mukadam drove other co-accused to Sahar Airport who had gone for training to Pakistan. Further he delivered motor vehicle having arms, ammunition and explosives at the residence of Amjad Aziz Meharbux and thereby committed a separate offence punishable under Section 3(3) TADA.
C. The appellant was further charged under Section 6 TADA for possessing and transporting arms, ammunition and explosives like hand grenades and detonators from Shekhadi to Bombay in an unauthorized manner.
102. The appellant (A-46) has been convicted under Section 3(3) TADA, and given a sentence of R.I. 5 years and a fine of Rs.25,000/- and in default of payment of fine, to suffer further imprisonment of six months; under Section 6 TADA, a sentence of R.I. 7 years and a fine of Rs.50,000/- and in default of payment of fine, to further suffer one year RI. Both the sentences were directed to run concurrently.
Hence, this appeal.
103. Shri Mushtaq Ahmad, learned counsel appearing on behalf of the appellant, has submitted that the appellant (A-46) has wrongly been enroped in the crime, he was no where involved. The confessional statements of the appellant as well as the co-accused could not be relied upon as it has been obtained by coercion and it could not be held to be useful and truthful. More so, the learned Designated Court failed to appreciate the evidence in correct perspective. Therefore, appeal deserves to be allowed.
104. Per contra, Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, opposed the appeal contending that the appellant had been deeply involved, not only in the landing and transportation of the smuggled goods, but being a very close associate of Tiger Memon (AA), was involved in the conspiracy also for which he has wrongly been acquitted. The evidence on record fully established his involvement in the crime. Thus, appeal lacks merit and is liable to be dismissed.
104.1 We have heard learned counsel for the parties and perused the record.
105. Evidence against the appellant (A-46):
(a) Confessional statement of Rafiq Madi (A-46)
(b) Confession of Asgar Yusuf Mukadam @ Munna (A-10)
(c) Confession of Abdul Gani Ismail Turk (A-11)
(d) Confession of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confession of Dawood Taklya Mohammed Phanse (A-14)
(f) Confession of Dadabhai (A-17)
(g) Confession of Shahnawaz Abdul Kadar (A-29)
(h) Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A- 64)
(i) Confession of Altaf Ali Mustaq Ali Sayed (A-67)
(j) Confession of Gulam Hafiz Shaikh @ Baba (A-73)
(k) Confession of Mubina @ Baya Moosa Bhiwandiwala (A-96)
(l) Confession of Parvez Mohmed Parvez Zulfikar Qureshi @ Parvez Kelewala (A-100)
(m) Deposition of Usman (PW-2)
Confessional statement of Rafiq Madi (A-46):
106. In his confessional statement, appellant (A-46) has deposed that he used to work as driver for Tiger Memons family and sometimes, when he was unemployed, used to sell clothes or cassettes on footpath. He worked as driver of Mushtaq Abdul Razak Memon @ Ibrahim @ Tiger for about 10-12 months. Tiger Memon (AA) had been involved in Hawala business and smuggling of gold and silver from Dubai. The appellant (A- 46) used to participate in landing and transportation of the smuggled goods and was being paid Rs. 2500/- as salary per month and Rs.3000 to 4000 per landing in addition to salary. Tigers office stood closed due to riots in Bombay in December 1992 and January 1993, thus, the appellant lost his work like a large number of other youths. One day when he went to the house of Tiger for collection of his salary for December, 1992 he (A-46) was directed to go out for Tigers work. Appellant (A-46) was not willing to go for the work as he was not feeling well, however being poor he went because of offer of money. Appellant (A-46) went in a jeep alongwith Tiger, Yakub Yeda, Javed Chikna, Usman and his associates for landing of smuggled goods. Dawood Taklya (A-14) was present there alongwith his associates. They waited the whole night but the smuggled goods did not come. They came back and stayed in a Hotel and in the evening they went to the landing point but the articles did not arrive that night also. They came to Alibagh and stayed in a hotel for 2-3 days. On 3.2.1993 night, the appellant alongwith others proceeded from Alibagh and reached the place of landing. Tiger and Yakub were also there.
106.1 Appellant (A-46) after taking the smuggled goods, which was in boxes came to the Tower in the jeep at 11.30 p.m. On being asked, Shafi told that the boxes contained electronic goods. On 4.2.1993 appellant (A-46) went to the house of Dadabhai (A-17) where Shafi asked the appellant (A-46) to load the articles from the tower. Appellant (A-46) alongwith Dadabhai (A-17) and Shafi reached the tower with a truck and Maruti van and loaded the truck with 59 gunny bags and covered the same with empty gunny bags. Shafi left from there taking the truck. The appellant (A-46) and Dadabhai (A-17) went to the house of Dadabhai (A-17) and slept after having the dinner. On 5.2.1993 the appellant (A-46) went to Mahad and then to Nagothane in Maruti van. The vehicle being driven by Shafi was left at Nagothane. Appellant (A-46), Shafi and Dadabhai (A-17) left for Alibagh to bring Mohd. Hussain. From there Shafi left by jeep instructing the appellant (A-46) to reach at Bandra Talab with Maruti Van near in the evening. There the appellant (A-46) would exchange the van with a jeep given by Riaz. On 6.2.1993 the appellant (A-46) met Anwar at 11 OClock in the morning near his house. They went to bungalow of Meharbux (Discharged Accused) at Mahim in that vehicle. The appellant (A-46) was asked to remove the jeep and park it at the house of Meharbux.
Confession of Asgar Yusuf Mukadam @ Munna (A-10)
107. Asgar Yusuf Mukadam @ Munna (A-10) in his confessional statement has involved appellant (A-46) to the effect that he had been working for Tiger Memon (AA) and he dropped the co- accused (A-10) to Sahar Airport from where A-10 alongwith others went to Dubai.
Confession of Abdul Gani Ismail Turk (A-11)
108. Abdul Gani Ismail Turk (A-11) has disclosed in his confessional statement that appellant (A-46) participated in the landing at Mhasla made by Tiger Memon (AA).
Confession of Parvez Nazir Ahmed Shaikh (A-12)
109. Parvez Nazir Ahmed Shaikh (A-12) stated in his confessional statement that appellant (A-46) was present at Al Husseini Building and money had been paid to (A-46) in his presence.
Confession of Dawood Taklya Mohammed Phanse (A-14)
110. Dawood Taklya Mohammed Phanse (A-14) disclosed that appellant (A-46) told him that his ticket had been booked and he had to leave for Dubai on the same day.
Confession of Dadabhai (A-17)
111. Dadabhai (A-17) disclosed that he alongwith appellant (A- 46) and Shafi facilitated and participated in transfer of smuggled goods from Wangni Tower to Bombay.
Confession of Shahnawaz Abdul Kadar (A-29)
112. Shahnawaz Abdul Kadar Qureshi (A-29) disclosed that appellant (A-46) was among the persons who participated in several landings. Appellant (A-46) had come to his residence and told him that his tickets were ready. He (A-46) was present at the airport and a sum of Rs. 50,000/- was paid to him for distribution among other co-accused.
Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A- 64)
113. Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) has disclosed that in January, 1993 he had seen appellant (A- 46) waiting for co-accused and appellant (A-46) was always seen with Tiger Memon (AA) and used to communicate Tigers messages. A-46 was also present at the Al-Husseini Building in the intervening night between 11th/12th March, 1993 when the RDX was filled up in the vehicles.
114. Bashir Ahmed Usman Gani Khairulla (Bashir Electrical) (A- 13), Altaf Ali Mustaq Ali Sayed (A-67), Gulam Hafiz Shaikh @ Baba (A-73), Gul Mohammed @ Gullu Noor Mohmed Shaikh (A- 77), Mubina @ Baya Moosa Bhiwandiwala (A-96) and Parvez Mohmed Parvez Zulfikar Qureshi @ Parvez Kelewala (A-100) have also named the appellant A-46 giving details of his involvement in landings etc.
Deposition of Usman Jan Khan (PW-2)
115. Usman Jan Khan (PW-2) has identified the appellant (A-46) in court and also disclosed that he was active participant in landing and transportation.
116. The Designated Court after appreciating the entire evidence on record came to the conclusion that the appellant (A-46) actively participated in the Shekhadi landing and transportation operation of contraband goods i.e. AK-56 rifles, ammunition, RDX etc. smuggled into the country by Tiger Memon (AA). Confession of the appellant (A-46) revealed that he was in employment of the Memon family, however he had been to Shekhadi landing. It could not be accepted that the appellant (A-46) was not aware of illegal business of Tiger Memon (AA) or about the nature of the contrabands smuggled into India. The presence of the appellant (A- 46) at the place where the goods were exchanged, at Wangni Tower and concealed into cavities of vehicles for transportation to Bombay, shows that he was a person of very close confident of Tiger Memon (AA). The appellant (A-46) handed over a motor vehicle containing arms and ammunitions at residence of Amjaz Abdul Aziz Meharbux (A-68).
116.1 Confessions of co-accused clearly established the involvement of the appellant (A-46) along with Asgar (A-10) for taking co-accused persons, who were sent for training to Pakistan via Dubai, though he may not be aware of the purpose for which the co-accused were sent to Dubai.
116.2 In view of the above well reasoned judgment, we do not find any evidence on record to warrant interference in the conclusion drawn by the Designated Court. The appeal lacks merit and is accordingly dismissed.
Criminal Appeal No. 1031 of 2012
117. This appeal has been filed by the State against the acquittal of the respondent of the charge of larger conspiracy.
118. On the first charge, the learned Designated Court considered the entire evidence as referred to hereinabove and came to the conclusion:
However hardly there being cementing material for establishing nexus of A-46 with conspiracy for which he is charged with and material having remained confined of himself having committed of aforesaid offences, it will be difficult to hold him liable for conspiracy for which he is charged with. The same is obvious as hardly there is any material indicating A-46 having committed any other acts because of which he is said to have further object of conspiracy for which he is charged with.
119. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
120. In view of the above, the appeal is liable to be dismissed.
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