Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134) Vs. The State of Maharashtra, through CBI-STF, Mumb
EmailAppeal: Criminal Appeal No. 401 of 2008
Petitioner: Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)
Respondent: The State of Maharashtra, through CBI-STF, Mumbai
Apeal: Criminal Appeal No. 401 of 2008
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Mohd Salim Mira Shaikh (A134) Charge of conspiracy, murder etc. – Evidence – Appreciation Own confession Responsible for delivery of gold to various persons Became partner in smuggling and participated in several landing of silver Attended meeting with several co-accused in January 1993 He was present at time of landing of arms and ammunition Negotiated with custom officials and police, after which truck passed Knew about AK- 56 rifles and magazine – Met Dawood at Dubai and was told about revenge Received training in Pakistan Removed arms from Surat Kept some with him, which were later recovered Statement corroborated by confessions of Zameer Sayyed (A133), Uttam Shantaram (A 30), Janardhan (A81), Md. Kasam (A136) His own statement found voluntary – All legal formalities complied with Further corroboration from other PWs regarding meeting with custom officers, loading and unloading of goods on 09.01.1993, stopping of truck on way, taking of 5 silver bricks by police, about loading and unloading of arms, regarding arrest of Accused and his offering to make confession. Held that his conviction under relevant charges was correct. Conviction and sentence imposed by trial court affirmed, appeal dismissed.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Mohd Salim Mira Shaikh (A134) Charge of conspiracy, murder etc. – Evidence – Appreciation Own confession Responsible for delivery of gold to various persons Became partner in smuggling and participated in several landing of silver Attended meeting with several co-accused in January 1993 He was present at time of landing of arms and ammunition Negotiated with custom officials and police, after which truck passed Knew about AK- 56 rifles and magazine – Met Dawood at Dubai and was told about revenge Received training in Pakistan Removed arms from Surat Kept some with him, which were later recovered Statement corroborated by confessions of Zameer Sayyed (A133), Uttam Shantaram (A 30), Janardhan (A81), Md. Kasam (A136) His own statement found voluntary – All legal formalities complied with Further corroboration from other PWs regarding meeting with custom officers, loading and unloading of goods on 09.01.1993, stopping of truck on way, taking of 5 silver bricks by police, about loading and unloading of arms, regarding arrest of Accused and his offering to make confession. Held that his conviction under relevant charges was correct. Conviction and sentence imposed by trial court affirmed, appeal dismissed.
Held:
Upon perusal of the confession of the appellant, the following facts emerge
(i) The appellant played an active role in the entire conspiracy viz., his meeting with Dawood Ibrahim in Dubai;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meeting and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case.
(Para 178)
On going through the same and the procedure followed by the recording officer, we are satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder. (Para 179)
The Confession of A-30 corroborates that the appellant participated in the landing, transportation and safe keeping of weapons that landed at Dighi in January, 1993 and which were ultimately used in the Bombay Bomb Blasts. (Para 180.2)
The confession of A-81, a fisherman, who participated in the landing at Dighi, while not specifically naming the appellant, corroborates with the confession of the appellant insofar as the landing and transportation of arms and ammunition that landed at Dighi is concerned. (Para 180.3)
From the perusal of the confession of A-136, it is clear that the appellant was actively involved in landing of arms and ammunitions at Dighi and their subsequent transportation and was an important member of the Mohd. Dossa gang, who were the main conspirators of the bomb blasts. The confession of A-136, therefore, corroborates with the confession of A- 134 in material aspects. (Para 181)
PW-481 recorded the confession of the appellant which clearly establishes that the same was recorded in compliance with Section 15 of TADA and the rules framed thereunder and as such is admissible as evidence against him. His deposition shows that PW-481 asked the appellant whether he had been beaten up or induced into making the confession to which the appellant replied in the negative. Only when PW-481 was convinced that the appellant wanted to make a voluntary confession, the confession was actually recorded. A further time of 24 hrs. was also given to the appellant to rethink his decision of making a confession. (Para 182.9)
The confession of A-134 along with the confessions of A-133, A-30, A- 81 and A-136 coupled with the deposition of prosecution witnesses establish the appellants participation in the criminal conspiracy and, more particularly, his participation in the landing of arms and ammunitions at Dighi. It is to be noted that the appellant was fully aware that the boxes which landed at Dighi Jetty on 09.01.1993 contained arms and ammunitions and he helped in the transportation of the same after landing of such weapons. Some of these weapons were subsequently recovered by PW-588. (Para 184)
JUDGEMENT:
Judgment
172. Mr. Chander Uday Singh, learned senior counsel appeared for the appellant (A-134) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
173. The instant appeal is directed against the final judgment and order of conviction and sentence dated 19.10.2006 and 05.06.2007 respectively whereby the appellant (A-134) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
174. A common charge of conspiracy was framed against all the co-conspirators including the appellant herein. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
174.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy and during the period January, 1993 to March, 1993, abetted and knowingly and intentionally facilitated commission of terrorists acts and acts preparatory to terrorists act by committing the following acts:
(a) He attended meeting at Hotel Persian Darbar, Panvel on 06.01.1993 along with co-accused R.K. Singh (A-102), M.S. Sayyed (A-90), Mohd. Dossa (AA) and Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136) and Y.B. Lotle (PW-154) and agreed to carry on smuggling activities by making payment of illegal gratification for landing of arms, ammunitions at Dighi;
(b) He participated along with landing agent Uttam Poddar (A-30) and other co-accused in landing of arms, ammunitions and handgrenades at Dighi on 09.01.1993 and participated in the transportation of the said arms, ammunitions and handgrenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment;
(c) He participated in the transportation of the said contraband from Dighi when it was intercepted at Gondghar Phata by PSI V.K. Patil (A-116) and due to mediation by Uttam Poddar (A-30), J.K. Gurav (A-82) (Custom Inspector) the said trucks containing contraband were allowed to proceed for some consideration against illegal gratification;
At head Thirdly: The appellant, with an intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunitions, their transportation and thereby committed an offence punishable under Section 6 of TADA.
175. The charges mentioned above were proved against the appellant (A-134). The Designated Court found the appellant guilty on all the aforesaid charges after considering the evidence brought on record by the prosecution which are enumerated herein below:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA and has been sentenced to RI for 14 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
(iii) The appellant has also been convicted under Section 6 of TADA and has been sentenced to RI for 14 years along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
Evidence
176. The evidence against the appellant (A-134) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A- 134)
177. The involvement of A-134 in the conspiracy is evident from his own confession under Section 15 of TADA recorded on 18.08.1995 and 19.08.1995 (16:00 hrs.) by Shri S.K. Saikia (PW-481), the then DIG, CID, Crime & Railways, Gujarat. We have gone through his entire confession. His confession reveals as under:-
(i) The appellant was born on 07.09.1966 and was 29 years old on the date of recording of his confession.
(ii) At the relevant time, he was a resident of Room No. 9/10, FF, B.M.C. Chawl, Sabu Siddiq Road, Crawford Market, Bombay-1.
(iii) The appellant was previously involved in a number of criminal cases registered at Pydhonie, Byculla, Paltan Rd., and Colaba police stations pertaining to rioting, assault and robberies.
(iv) He had beaten up some associates of Dawood Ibrahim in Crawford Market.
(v) The appellant knew several other members of the Mohd. Dossa Gang and Arjun Gang.
(vi) The appellant joined Mohd. Dossa gang after a meeting with Mustafa Majnu (A-138), younger brother of Mohd. Dossa (AA). The appellant became Mohd. Dossas body guard.
(vii) The appellant was involved in the delivery of gold to various persons in Bombay including Raju Kodi (A-26).
(viii) Tiger Memon used to work with Mohd. Dossa and separated in 1989. In 1992, the appellant became a partner of 5% share in smuggling activities along with Mechanic Chacha (A-136) and Feroz Abdul Rafiq.
(ix) In the year 1992, the appellant participated in about 8 landings of silver in Ratnagiri (at Mhasla and Dighi) and more landings near Mangalore.
(x) In 1992, the appellant took part in the murder of Mussa, a smuggler in Bangalore.
(xi) In the first week of January, 1993, the appellant accompanied Mohd. Dossa for a meeting with Customs officers, including Mr. Singh (A-102), Mr. Sayed (A-90) and one more officer at Hotel Persian Darbar, Panvel. In the meeting which went on for 3/4 hours, Mohd. Dossa discussed about landing operations and it was agreed that Customs officers will be paid Rs.7-8 lacs per landing.
(xii) Few days after the above meeting, A-138 called Mohd. Dossa from Dubai and asked him to make arrangements for landing. Mohd. Dossa then told the appellant that large quantity of arms and ammunitions had left Dubai for landing and asked him to go to Dighi at Mhasla and inform the Customs officers.
(xiii) The appellant, thereafter, informed the Customs officials, viz., Mr. Singh (A-102) and Mr. Sayed (A-90) who gave permission for the said landing. The appellant was present when the landing took place at Dighi Jetty. Mechanic Chacha (A-136) and Uttam Poddar (A-30) were also present there.
(xiv) About 250-300 silver ingots, 25-30 wooden boxes and 15-20 canvas bags were landed at Dighi. These items were loaded in trucks which were subsequently intercepted by the Police. The appellant tried to convince the police officer who was annoyed because he had not received money for the landing. Thereafter, Uttam Poddar (A-30) and Customs officer Gurav (A-82) negotiated with the police, which let the trucks pass for a bribe of Rs. 10 lacs. The Police officers kept 6/7 silver ingots in lieu of cash of Rs. 10 lakhs.
(xv) The appellant noticed that one wooden box was containing 4 AK-56 rifles and 12 empty magazines and also that some other boxes were containing hand grenades and their pins. The military coloured canvas bags were found to be containing four tin boxes in each bag which were filled with ammunition for AK-56 rifles.
(xvi) The aforesaid bags were fitted in the cavities made in the truck and the leftover goods were shifted to the house of Shabbir Kadri (AA) where the appellant and others also stayed after landing.
(xvii) During the stay at Shabbirs house, Arif Lamboo and Afzal Gadbad collected the silver ingots and few wooden boxes and canvas bags and delivered them to Ahmed Okliya of Surat, Gujarat on the instructions of Mustafa Majnu (A-138). The appellant was also told by Afsal Gadbad that some arms and ammunitions were delivered by him at Panvel to a man of Tiger Memon. 3-4 wooden boxes and a few canvas bags still remained at Shabbirs house.
(xviii) On the day of landing which took place in the beginning of second week of January, 1993, Mohd. Dossa was present at his office in Bombay.
(xix) The appellant along with several other co-accused persons left for Dubai in the beginning of February, 1993 where they stayed for 15 days. In Dubai, the appellant met Dawood Ibrahim where he told him to be ready for revenge and riots and that for this purpose they would be given training in use of weapons at Pakistan.
(xx) 2-3 days after the meeting with Dawood Ibrahim, Abu Bakar (AA) and others left for Pakistan for receiving training. The appellant had gone to see them off at Dubai Airport. These persons were told that someone would come at the Airport in Pakistan to receive them.
(xxi) On return, those co-accused persons told the appellant that they had received weapons training at Pakistan and that they were met by Pakistani officers at the Airport who took them out without any immigration formalities.
(xxii) The appellant was in Bombay on the day of the blasts but he denied the participation in the blasts. He, however, fled to Bombay and stayed in Delhi, Uttar Pradesh and a neighbouring country and continued to work for Mohd. Dossa in smuggling of gold.
(xxiii) In July, 1993, the appellant on the instructions of Mohd. Dossa, removed AK-56 rifles, hand grenades, small bombs and 2,000 cartridges lying with Ahmed Okliya of Surat, Gujarat. These arms were the same which had landed at Dighi Jetty.
(xxiv) The appellant kept 1 AK-56 rifle, 2 magazines and 88 cartridges with himself which were recovered by the police at the time of his arrest.
178. Upon perusal of the above confession of the appellant, the following facts emerge
(i) The appellant played an active role in the entire conspiracy viz., his meeting with Dawood Ibrahim in Dubai;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meeting and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case.
179. Though counsel for the appellant argued that his confession cannot be relied upon due to the fact that it was not voluntary, on going through the same and the procedure followed by the recording officer, we are satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder. The said facts have been duly established by the testimony of the recording officer PW-481.
Confessional Statements of co-accused:
180. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of the other co-accused persons which are summarized as under:
Confessional Statement of Jamir Sayyed Ismail Kadri (A-133)
180.1 Confessional statement of A-133 under Section 15 of TADA has been recorded on 06.08.1995 (12:20 hrs.) and 07.08.1995 (13:15 hrs.) by Shri H.C. Singh, the then Supdt. of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-133 with respect to the appellant is summarized herein under:
(i) In the night of 08/09.01.1993, the appellant and one other friend of Shabbir, brother of A-133, came on a silver coloured motorcycle to their house and slept there.
(ii) On the morning of 09.01.1993, Shabbir told A-133 that silver and weapons would arrive at Dighi Jetty that day.
(iii) The appellant along with Feroz (AA) and Uttam Poddar (A-30) was talking about unloading of material. Hearing their talks, A-133 gauged that goods had been sent by Mohd. Dossa.
(iv) On 09.01.1993, in the evening, around 7 pm, the appellant and others left for Dighi Jetty.
(v) The appellant, along with Feroz and Shabbir, brought 3 wooden boxes to the house of Jamirs grandmother in the morning of 10.01.1993.
(vi) The appellant along with Feroz, Shabbir and A-133 brought 19 silver ingots and 15-20 green coloured bags containing tin boxes and kept them in the house of Jamirs grandmother.
We are satisfied that the confession of A-133 fully corroborates in material aspect with the confession of the appellant.
Confessional Statement of Uttam Shantaram Poddar (A-30)
180.2 Confessional statement of A-30 under Section 15 of TADA has been recorded on 12.07.1993 (17:20 hrs.) and 15.07.1993 (17:00 hrs.) by Meera Borvankar, the then Supdt. of Police, CID, Pune. The confession of A-30 corroborates that the appellant participated in the landing, transportation and safe keeping of weapons that landed at Dighi in January, 1993 and which were ultimately used in the Bombay Bomb Blasts. A summary of the confession of A-30 implicating the appellant is as under:-
(i) The appellant is an associate of Mohd. Dossa.
(ii) On 09.01.1993, the appellant participated in the landing at Dighi.
(iii) After the landing at Dighi, police intercepted the trucks.
(iv) Uttam Poddar went to Shabbir Kadris (AA) house where the appellant was also present.
Confessional Statement of Janardhan Pandurang Gambas (A-81)
180.3 Confessional statement of A-81 under Section 15 of TADA has been recorded on 20.05.1993 (17:30 hrs.) and 21.05.1993 (17:15 hrs.) by Shri T.S. Bhai, the then Supdt. of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi, while not specifically naming the appellant, corroborates with the confession of the appellant insofar as the landing and transportation of arms and ammunition that landed at Dighi is concerned.
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha @ Mohd. Kalia (A-136)
180.4 Confessional statement of A-136 under Section 15 of TADA has been recorded on 09.11.1999 (15:15 hrs.) and 10.09.1999 (09:00 hrs.) by Shri O.P. Chhatwal, the then Supdt. of Police, CBI, New Delhi. A summary of the confession of A-136 is as under:
(i) The appellant is an important member of Mohd. Dossa gang.
(ii) On 06.01.1993, the appellant attended the meeting with Customs officials, viz., R.K. Singh and Sayyed, arranged by one Padwal (PW-146) at Hotel Persian Darbar wherein it was decided to pay Rs. 9-10 lakhs for smooth landing of the consignment.
(iii) On 08.01.1993, as per the instructions of Mohd. Dossa, he alongwith Feroz went to Alibaugh-Mhasla on a Yamaha Motorbike to inform R.K. Singh and Syed about the proposed landing of arms and ammunitions. He along with Feroz also went to inform Uttam Poddar and Shabbir Kadri for making arrangements for the landing.
(iv) On 09.01.1993, on the day of landing, he alongwith Feroz, Qayum, Shafi Charsi and other labourers was present at Dighi Jetty.
(v) The appellant, on the instructions of A-138, told A-136 to load the goods into the trucks.
(vi) The appellant was traveling in a tempo and the vehicles carrying smuggled arms and ammunitions were intercepted by the police.
(vii) After the bomb blasts, A-136 met A-134 in Nepal while he was absconding.
181. From the perusal of the aforesaid confession of A-136, it is clear that the appellant was actively involved in landing of arms and ammunitions at Dighi and their subsequent transportation and was an important member of the Mohd. Dossa gang, who were the main conspirators of the bomb blasts. The confession of A-136, therefore, corroborates with the confession of A- 134 in material aspects.
Deposition of Prosecution Witnesses:
182. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. Relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:
Deposition of Yeshwant Balu Lotle (PW-154)
182.1 At the relevant time, he was posted as an officer in the Central Excise Department. He attended the meeting between customs officers, viz., R.K.Singh (A-102) and M.S. Sayyed (A-90) and Mohd. Dossa on 06.01.1993 at Hotel Pesian Durbar, Panvel. His deposition, therefore, corroborates with the confession of A-134 that a meeting between Customs officers and Mohd. Dossa was held on 06.01.1993 at Hotel Persian Durbar, Panvel.
Deposition of Dinesh Gopal Nakti (PW-95)
182.2 His deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 09.01.1993 on the instructions of Uttam Poddar to load several bags at Dighi in tempo. Deposition of PW-95, therefore, corroborates with the confession of A-134, that Uttam Poddar arranged labour for loading and unloading of goods at Dighi on 09.01.1993 and that landing took place on the same day.
Deposition of Krishnakant Nathuram Birade (PW-96)
182.3 PW-96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW-95 in that Uttam Poddar (A-30) arranged for labour for loading and unloading of goods at Dighi Jetty on 09.01.1993.
Deposition of Dilip Bhiku Pansare (PW-97)
182.4 PW-97 reveals as under:-
(i) He was working as a Mechanic in the State Transport Corporation.
(ii) He drove one of the two trucks bearing No. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 09.01.1993 at Dighi Jetty.
(iii) He stated that at Gondghar Phata, he was stopped by a police jeep.
(iv) He stated that the police men boarded the said truck and started shouting that there was silver in the truck.
(v) He stated that, in the meanwhile, another truck also came following his truck and the police men also boarded the said truck and the persons who were traveling in the said truck said Saab Andar Math Jao, Andar Kaanch ka Saman Hai.
(vi) He stated that, thereafter, Shabbir Kadri came and started asking Patil Sahib (A-116) what had happened.
(vii) He stated that he took A-116 nearby a white car which was stationed behind the said truck.
(viii) He stated that meanwhile A-30 and A-82 also came there and they talked for about half an hour.
(ix) He stated that, thereafter, 5 silver bricks were taken out of the truck bearing No. 5533 and were kept in the police jeep.
(x) He stated that when he left the said spot, the other truck alongwith the police jeep was still there.
(xi) He stated that the person who shouted to take out the keys of my truck was at the rear side portion of the truck.
(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.
182.5 The above deposition of PW-97 corroborates the confession of A-134 that goods which had landed at Dighi were loaded in a truck and the same were intercepted by the police officers and after negotiations, they were let off.
Deposition of Vyankatesh Hirba Rane (PW-588)
182.6 He was a police officer who deposed about the recovery of wooden boxes from Shabbirs village. His deposition corroborates with the confession of the appellant that about 3-4 wooden boxes and a few canvas bags containing arms and ammunitions that had landed at Dighi Jetty on 09.01.1993 had remained at the house of Shabbir Kadri (AA). PW-588, at the instance of PW- 378, recovered the said three wooden boxes and six military coloured bags from a creek vide seizure panchnama dated 08.04.1993 (Exh. 503). 3 wooden boxes containing 44 magazines of AK-56 rifles and 6 canvas bags each containing 2 tin boxes, each box containing 750 rounds were recovered. Thus, there were total 12 tin boxes containing 9000 rounds of AK-56 rifles.
Deposition of Janu Kamlaya Vetkholi (PW-378)
182.7 PW-378 was a fisherman and catches fishes in Murud creek. He corroborates with the deposition of PW-588 in material aspect.
Deposition of Ashok K. Chandgude (PW-670)
182.8 PW-670 sent the items recovered above to the FSL for opinion vide Panchnama Exhibit 2471 dated 23.05.1993. Exhibit 2442 is the opinion received from FSL.
Deposition of Satyakant Rohinikant Saikia (PW-481)
182.9 PW-481 recorded the confession of the appellant which clearly establishes that the same was recorded in compliance with Section 15 of TADA and the rules framed thereunder and as such is admissible as evidence against him. His deposition shows that PW-481 asked the appellant whether he had been beaten up or induced into making the confession to which the appellant replied in the negative. Only when PW-481 was convinced that the appellant wanted to make a voluntary confession, the confession was actually recorded. A further time of 24 hrs. was also given to the appellant to rethink his decision of making a confession.
Deposition of Saujibhai Ghemarbhai Chaudhari (PW-678)
182.10 Deposition of PW-678 dated 10.07.2000 establishes that the appellant was arrested by him from his village in District Bijnor, Uttar Pradesh in connection with the Bombay Bomb Blast case and that the appellant volunteered to make a confession on 18.08.1995 while being interrogated. Thereafter, PW-678 sent a requisition letter to PW-481 for recording of the confession of the appellant.
183. From the materials, it is clear that:
(i) He was a key member of the Mohd. Dossa gang.
(ii) He participated in the landing of silver ingots and arms and ammunitions at Dighi Jetty on 09.01.1993.
(iii) He participated in the transportation and safe keeping of the arms and ammunitions that landed at Dighi and carried these weapons to Shabbirs village.
(iv) Even when he was absconding after the bomb blasts, he continued to smuggle goods and was involved in the illegal activities on the instructions of Mohd. Dosa.
(v) He even committed offence while he was declared proclaimed offender.
(vi) On his arrest, one AK-56 rifle, two magazines and 88 cartridges were recovered. The said arms and ammunitions were out of the goods that landed at Dighi Jetty on 09.01.1993.
184. The confession of A-134 along with the confessions of A-133, A-30, A- 81 and A-136 coupled with the deposition of prosecution witnesses establish the appellants participation in the criminal conspiracy and, more particularly, his participation in the landing of arms and ammunitions at Dighi. It is to be noted that the appellant was fully aware that the boxes which landed at Dighi Jetty on 09.01.1993 contained arms and ammunitions and he helped in the transportation of the same after landing of such weapons. Some of these weapons were subsequently recovered by PW-588.
Sentence:
185. The prosecution has brought to our notice that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 20.10.2006 (Exh. 2995) in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since his arrest in April, 1995;
(ii) His children and wife are dependent on him;
(iii) He lost his parents while in custody and wishes to join his wife and daughters; and
(iv) He has assured to lead the life of a new law abiding citizen.
186. A perusal of the impugned order shows that the learned Designated Court duly considered all these factors.
187. In the light of the above discussion, we confirm the conviction and sentence awarded by the Designated Court to the appellant and the appeal is liable to be dismissed.
172. Mr. Chander Uday Singh, learned senior counsel appeared for the appellant (A-134) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
173. The instant appeal is directed against the final judgment and order of conviction and sentence dated 19.10.2006 and 05.06.2007 respectively whereby the appellant (A-134) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
174. A common charge of conspiracy was framed against all the co-conspirators including the appellant herein. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
174.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy and during the period January, 1993 to March, 1993, abetted and knowingly and intentionally facilitated commission of terrorists acts and acts preparatory to terrorists act by committing the following acts:
(a) He attended meeting at Hotel Persian Darbar, Panvel on 06.01.1993 along with co-accused R.K. Singh (A-102), M.S. Sayyed (A-90), Mohd. Dossa (AA) and Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136) and Y.B. Lotle (PW-154) and agreed to carry on smuggling activities by making payment of illegal gratification for landing of arms, ammunitions at Dighi;
(b) He participated along with landing agent Uttam Poddar (A-30) and other co-accused in landing of arms, ammunitions and handgrenades at Dighi on 09.01.1993 and participated in the transportation of the said arms, ammunitions and handgrenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment;
(c) He participated in the transportation of the said contraband from Dighi when it was intercepted at Gondghar Phata by PSI V.K. Patil (A-116) and due to mediation by Uttam Poddar (A-30), J.K. Gurav (A-82) (Custom Inspector) the said trucks containing contraband were allowed to proceed for some consideration against illegal gratification;
At head Thirdly: The appellant, with an intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunitions, their transportation and thereby committed an offence punishable under Section 6 of TADA.
175. The charges mentioned above were proved against the appellant (A-134). The Designated Court found the appellant guilty on all the aforesaid charges after considering the evidence brought on record by the prosecution which are enumerated herein below:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA and has been sentenced to RI for 14 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
(iii) The appellant has also been convicted under Section 6 of TADA and has been sentenced to RI for 14 years along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge thirdly)
Evidence
176. The evidence against the appellant (A-134) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A- 134)
177. The involvement of A-134 in the conspiracy is evident from his own confession under Section 15 of TADA recorded on 18.08.1995 and 19.08.1995 (16:00 hrs.) by Shri S.K. Saikia (PW-481), the then DIG, CID, Crime & Railways, Gujarat. We have gone through his entire confession. His confession reveals as under:-
(i) The appellant was born on 07.09.1966 and was 29 years old on the date of recording of his confession.
(ii) At the relevant time, he was a resident of Room No. 9/10, FF, B.M.C. Chawl, Sabu Siddiq Road, Crawford Market, Bombay-1.
(iii) The appellant was previously involved in a number of criminal cases registered at Pydhonie, Byculla, Paltan Rd., and Colaba police stations pertaining to rioting, assault and robberies.
(iv) He had beaten up some associates of Dawood Ibrahim in Crawford Market.
(v) The appellant knew several other members of the Mohd. Dossa Gang and Arjun Gang.
(vi) The appellant joined Mohd. Dossa gang after a meeting with Mustafa Majnu (A-138), younger brother of Mohd. Dossa (AA). The appellant became Mohd. Dossas body guard.
(vii) The appellant was involved in the delivery of gold to various persons in Bombay including Raju Kodi (A-26).
(viii) Tiger Memon used to work with Mohd. Dossa and separated in 1989. In 1992, the appellant became a partner of 5% share in smuggling activities along with Mechanic Chacha (A-136) and Feroz Abdul Rafiq.
(ix) In the year 1992, the appellant participated in about 8 landings of silver in Ratnagiri (at Mhasla and Dighi) and more landings near Mangalore.
(x) In 1992, the appellant took part in the murder of Mussa, a smuggler in Bangalore.
(xi) In the first week of January, 1993, the appellant accompanied Mohd. Dossa for a meeting with Customs officers, including Mr. Singh (A-102), Mr. Sayed (A-90) and one more officer at Hotel Persian Darbar, Panvel. In the meeting which went on for 3/4 hours, Mohd. Dossa discussed about landing operations and it was agreed that Customs officers will be paid Rs.7-8 lacs per landing.
(xii) Few days after the above meeting, A-138 called Mohd. Dossa from Dubai and asked him to make arrangements for landing. Mohd. Dossa then told the appellant that large quantity of arms and ammunitions had left Dubai for landing and asked him to go to Dighi at Mhasla and inform the Customs officers.
(xiii) The appellant, thereafter, informed the Customs officials, viz., Mr. Singh (A-102) and Mr. Sayed (A-90) who gave permission for the said landing. The appellant was present when the landing took place at Dighi Jetty. Mechanic Chacha (A-136) and Uttam Poddar (A-30) were also present there.
(xiv) About 250-300 silver ingots, 25-30 wooden boxes and 15-20 canvas bags were landed at Dighi. These items were loaded in trucks which were subsequently intercepted by the Police. The appellant tried to convince the police officer who was annoyed because he had not received money for the landing. Thereafter, Uttam Poddar (A-30) and Customs officer Gurav (A-82) negotiated with the police, which let the trucks pass for a bribe of Rs. 10 lacs. The Police officers kept 6/7 silver ingots in lieu of cash of Rs. 10 lakhs.
(xv) The appellant noticed that one wooden box was containing 4 AK-56 rifles and 12 empty magazines and also that some other boxes were containing hand grenades and their pins. The military coloured canvas bags were found to be containing four tin boxes in each bag which were filled with ammunition for AK-56 rifles.
(xvi) The aforesaid bags were fitted in the cavities made in the truck and the leftover goods were shifted to the house of Shabbir Kadri (AA) where the appellant and others also stayed after landing.
(xvii) During the stay at Shabbirs house, Arif Lamboo and Afzal Gadbad collected the silver ingots and few wooden boxes and canvas bags and delivered them to Ahmed Okliya of Surat, Gujarat on the instructions of Mustafa Majnu (A-138). The appellant was also told by Afsal Gadbad that some arms and ammunitions were delivered by him at Panvel to a man of Tiger Memon. 3-4 wooden boxes and a few canvas bags still remained at Shabbirs house.
(xviii) On the day of landing which took place in the beginning of second week of January, 1993, Mohd. Dossa was present at his office in Bombay.
(xix) The appellant along with several other co-accused persons left for Dubai in the beginning of February, 1993 where they stayed for 15 days. In Dubai, the appellant met Dawood Ibrahim where he told him to be ready for revenge and riots and that for this purpose they would be given training in use of weapons at Pakistan.
(xx) 2-3 days after the meeting with Dawood Ibrahim, Abu Bakar (AA) and others left for Pakistan for receiving training. The appellant had gone to see them off at Dubai Airport. These persons were told that someone would come at the Airport in Pakistan to receive them.
(xxi) On return, those co-accused persons told the appellant that they had received weapons training at Pakistan and that they were met by Pakistani officers at the Airport who took them out without any immigration formalities.
(xxii) The appellant was in Bombay on the day of the blasts but he denied the participation in the blasts. He, however, fled to Bombay and stayed in Delhi, Uttar Pradesh and a neighbouring country and continued to work for Mohd. Dossa in smuggling of gold.
(xxiii) In July, 1993, the appellant on the instructions of Mohd. Dossa, removed AK-56 rifles, hand grenades, small bombs and 2,000 cartridges lying with Ahmed Okliya of Surat, Gujarat. These arms were the same which had landed at Dighi Jetty.
(xxiv) The appellant kept 1 AK-56 rifle, 2 magazines and 88 cartridges with himself which were recovered by the police at the time of his arrest.
178. Upon perusal of the above confession of the appellant, the following facts emerge
(i) The appellant played an active role in the entire conspiracy viz., his meeting with Dawood Ibrahim in Dubai;
(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunitions;
(iii) He participated in the meeting and negotiations with Customs and Police officers in January, 1993 to seek permission and to fix the bribe amount for each landing.
(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast case.
179. Though counsel for the appellant argued that his confession cannot be relied upon due to the fact that it was not voluntary, on going through the same and the procedure followed by the recording officer, we are satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder. The said facts have been duly established by the testimony of the recording officer PW-481.
Confessional Statements of co-accused:
180. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of the other co-accused persons which are summarized as under:
Confessional Statement of Jamir Sayyed Ismail Kadri (A-133)
180.1 Confessional statement of A-133 under Section 15 of TADA has been recorded on 06.08.1995 (12:20 hrs.) and 07.08.1995 (13:15 hrs.) by Shri H.C. Singh, the then Supdt. of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-133 with respect to the appellant is summarized herein under:
(i) In the night of 08/09.01.1993, the appellant and one other friend of Shabbir, brother of A-133, came on a silver coloured motorcycle to their house and slept there.
(ii) On the morning of 09.01.1993, Shabbir told A-133 that silver and weapons would arrive at Dighi Jetty that day.
(iii) The appellant along with Feroz (AA) and Uttam Poddar (A-30) was talking about unloading of material. Hearing their talks, A-133 gauged that goods had been sent by Mohd. Dossa.
(iv) On 09.01.1993, in the evening, around 7 pm, the appellant and others left for Dighi Jetty.
(v) The appellant, along with Feroz and Shabbir, brought 3 wooden boxes to the house of Jamirs grandmother in the morning of 10.01.1993.
(vi) The appellant along with Feroz, Shabbir and A-133 brought 19 silver ingots and 15-20 green coloured bags containing tin boxes and kept them in the house of Jamirs grandmother.
We are satisfied that the confession of A-133 fully corroborates in material aspect with the confession of the appellant.
Confessional Statement of Uttam Shantaram Poddar (A-30)
180.2 Confessional statement of A-30 under Section 15 of TADA has been recorded on 12.07.1993 (17:20 hrs.) and 15.07.1993 (17:00 hrs.) by Meera Borvankar, the then Supdt. of Police, CID, Pune. The confession of A-30 corroborates that the appellant participated in the landing, transportation and safe keeping of weapons that landed at Dighi in January, 1993 and which were ultimately used in the Bombay Bomb Blasts. A summary of the confession of A-30 implicating the appellant is as under:-
(i) The appellant is an associate of Mohd. Dossa.
(ii) On 09.01.1993, the appellant participated in the landing at Dighi.
(iii) After the landing at Dighi, police intercepted the trucks.
(iv) Uttam Poddar went to Shabbir Kadris (AA) house where the appellant was also present.
Confessional Statement of Janardhan Pandurang Gambas (A-81)
180.3 Confessional statement of A-81 under Section 15 of TADA has been recorded on 20.05.1993 (17:30 hrs.) and 21.05.1993 (17:15 hrs.) by Shri T.S. Bhai, the then Supdt. of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi, while not specifically naming the appellant, corroborates with the confession of the appellant insofar as the landing and transportation of arms and ammunition that landed at Dighi is concerned.
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha @ Mohd. Kalia (A-136)
180.4 Confessional statement of A-136 under Section 15 of TADA has been recorded on 09.11.1999 (15:15 hrs.) and 10.09.1999 (09:00 hrs.) by Shri O.P. Chhatwal, the then Supdt. of Police, CBI, New Delhi. A summary of the confession of A-136 is as under:
(i) The appellant is an important member of Mohd. Dossa gang.
(ii) On 06.01.1993, the appellant attended the meeting with Customs officials, viz., R.K. Singh and Sayyed, arranged by one Padwal (PW-146) at Hotel Persian Darbar wherein it was decided to pay Rs. 9-10 lakhs for smooth landing of the consignment.
(iii) On 08.01.1993, as per the instructions of Mohd. Dossa, he alongwith Feroz went to Alibaugh-Mhasla on a Yamaha Motorbike to inform R.K. Singh and Syed about the proposed landing of arms and ammunitions. He along with Feroz also went to inform Uttam Poddar and Shabbir Kadri for making arrangements for the landing.
(iv) On 09.01.1993, on the day of landing, he alongwith Feroz, Qayum, Shafi Charsi and other labourers was present at Dighi Jetty.
(v) The appellant, on the instructions of A-138, told A-136 to load the goods into the trucks.
(vi) The appellant was traveling in a tempo and the vehicles carrying smuggled arms and ammunitions were intercepted by the police.
(vii) After the bomb blasts, A-136 met A-134 in Nepal while he was absconding.
181. From the perusal of the aforesaid confession of A-136, it is clear that the appellant was actively involved in landing of arms and ammunitions at Dighi and their subsequent transportation and was an important member of the Mohd. Dossa gang, who were the main conspirators of the bomb blasts. The confession of A-136, therefore, corroborates with the confession of A- 134 in material aspects.
Deposition of Prosecution Witnesses:
182. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. Relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:
Deposition of Yeshwant Balu Lotle (PW-154)
182.1 At the relevant time, he was posted as an officer in the Central Excise Department. He attended the meeting between customs officers, viz., R.K.Singh (A-102) and M.S. Sayyed (A-90) and Mohd. Dossa on 06.01.1993 at Hotel Pesian Durbar, Panvel. His deposition, therefore, corroborates with the confession of A-134 that a meeting between Customs officers and Mohd. Dossa was held on 06.01.1993 at Hotel Persian Durbar, Panvel.
Deposition of Dinesh Gopal Nakti (PW-95)
182.2 His deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 09.01.1993 on the instructions of Uttam Poddar to load several bags at Dighi in tempo. Deposition of PW-95, therefore, corroborates with the confession of A-134, that Uttam Poddar arranged labour for loading and unloading of goods at Dighi on 09.01.1993 and that landing took place on the same day.
Deposition of Krishnakant Nathuram Birade (PW-96)
182.3 PW-96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW-95 in that Uttam Poddar (A-30) arranged for labour for loading and unloading of goods at Dighi Jetty on 09.01.1993.
Deposition of Dilip Bhiku Pansare (PW-97)
182.4 PW-97 reveals as under:-
(i) He was working as a Mechanic in the State Transport Corporation.
(ii) He drove one of the two trucks bearing No. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 09.01.1993 at Dighi Jetty.
(iii) He stated that at Gondghar Phata, he was stopped by a police jeep.
(iv) He stated that the police men boarded the said truck and started shouting that there was silver in the truck.
(v) He stated that, in the meanwhile, another truck also came following his truck and the police men also boarded the said truck and the persons who were traveling in the said truck said Saab Andar Math Jao, Andar Kaanch ka Saman Hai.
(vi) He stated that, thereafter, Shabbir Kadri came and started asking Patil Sahib (A-116) what had happened.
(vii) He stated that he took A-116 nearby a white car which was stationed behind the said truck.
(viii) He stated that meanwhile A-30 and A-82 also came there and they talked for about half an hour.
(ix) He stated that, thereafter, 5 silver bricks were taken out of the truck bearing No. 5533 and were kept in the police jeep.
(x) He stated that when he left the said spot, the other truck alongwith the police jeep was still there.
(xi) He stated that the person who shouted to take out the keys of my truck was at the rear side portion of the truck.
(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.
182.5 The above deposition of PW-97 corroborates the confession of A-134 that goods which had landed at Dighi were loaded in a truck and the same were intercepted by the police officers and after negotiations, they were let off.
Deposition of Vyankatesh Hirba Rane (PW-588)
182.6 He was a police officer who deposed about the recovery of wooden boxes from Shabbirs village. His deposition corroborates with the confession of the appellant that about 3-4 wooden boxes and a few canvas bags containing arms and ammunitions that had landed at Dighi Jetty on 09.01.1993 had remained at the house of Shabbir Kadri (AA). PW-588, at the instance of PW- 378, recovered the said three wooden boxes and six military coloured bags from a creek vide seizure panchnama dated 08.04.1993 (Exh. 503). 3 wooden boxes containing 44 magazines of AK-56 rifles and 6 canvas bags each containing 2 tin boxes, each box containing 750 rounds were recovered. Thus, there were total 12 tin boxes containing 9000 rounds of AK-56 rifles.
Deposition of Janu Kamlaya Vetkholi (PW-378)
182.7 PW-378 was a fisherman and catches fishes in Murud creek. He corroborates with the deposition of PW-588 in material aspect.
Deposition of Ashok K. Chandgude (PW-670)
182.8 PW-670 sent the items recovered above to the FSL for opinion vide Panchnama Exhibit 2471 dated 23.05.1993. Exhibit 2442 is the opinion received from FSL.
Deposition of Satyakant Rohinikant Saikia (PW-481)
182.9 PW-481 recorded the confession of the appellant which clearly establishes that the same was recorded in compliance with Section 15 of TADA and the rules framed thereunder and as such is admissible as evidence against him. His deposition shows that PW-481 asked the appellant whether he had been beaten up or induced into making the confession to which the appellant replied in the negative. Only when PW-481 was convinced that the appellant wanted to make a voluntary confession, the confession was actually recorded. A further time of 24 hrs. was also given to the appellant to rethink his decision of making a confession.
Deposition of Saujibhai Ghemarbhai Chaudhari (PW-678)
182.10 Deposition of PW-678 dated 10.07.2000 establishes that the appellant was arrested by him from his village in District Bijnor, Uttar Pradesh in connection with the Bombay Bomb Blast case and that the appellant volunteered to make a confession on 18.08.1995 while being interrogated. Thereafter, PW-678 sent a requisition letter to PW-481 for recording of the confession of the appellant.
183. From the materials, it is clear that:
(i) He was a key member of the Mohd. Dossa gang.
(ii) He participated in the landing of silver ingots and arms and ammunitions at Dighi Jetty on 09.01.1993.
(iii) He participated in the transportation and safe keeping of the arms and ammunitions that landed at Dighi and carried these weapons to Shabbirs village.
(iv) Even when he was absconding after the bomb blasts, he continued to smuggle goods and was involved in the illegal activities on the instructions of Mohd. Dosa.
(v) He even committed offence while he was declared proclaimed offender.
(vi) On his arrest, one AK-56 rifle, two magazines and 88 cartridges were recovered. The said arms and ammunitions were out of the goods that landed at Dighi Jetty on 09.01.1993.
184. The confession of A-134 along with the confessions of A-133, A-30, A- 81 and A-136 coupled with the deposition of prosecution witnesses establish the appellants participation in the criminal conspiracy and, more particularly, his participation in the landing of arms and ammunitions at Dighi. It is to be noted that the appellant was fully aware that the boxes which landed at Dighi Jetty on 09.01.1993 contained arms and ammunitions and he helped in the transportation of the same after landing of such weapons. Some of these weapons were subsequently recovered by PW-588.
Sentence:
185. The prosecution has brought to our notice that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 20.10.2006 (Exh. 2995) in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since his arrest in April, 1995;
(ii) His children and wife are dependent on him;
(iii) He lost his parents while in custody and wishes to join his wife and daughters; and
(iv) He has assured to lead the life of a new law abiding citizen.
186. A perusal of the impugned order shows that the learned Designated Court duly considered all these factors.
187. In the light of the above discussion, we confirm the conviction and sentence awarded by the Designated Court to the appellant and the appeal is liable to be dismissed.
