Shah Nawaz Khan Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1423 of 2007
And
State of Maharashtra v. Shah Nawaz Khan
Criminal Appeal No. 1032 of 2012
And
State of Maharashtra v. Shah Nawaz Khan
Criminal Appeal No. 1032 of 2012
Petitioner: Shah Nawaz Khan
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1423 of 2007
And
State of Maharashtra v. Shah Nawaz Khan
Criminal Appeal No. 1032 of 2012
And
State of Maharashtra v. Shah Nawaz Khan
Criminal Appeal No. 1032 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 – Involvement of A-128 – Appellant A128, unemployed, closely connected with ‘K’ and other accused – Went to Dubai to go to Pakistan for weapon training – As he could not go to Pakistan, returned to Bombay – Participated twice in landing and transportation of contraband – His confessional statement found voluntary – Given 48 hours to think – A134 and A64 corroborated prosecution’s story about his participation in landing the contraband in Shekhadi – A58, stating about giving of revolver to appellant by Tiger Memon (AA) which was later returned – His going to Dubai confirmed by A109 – Retraction of confessional statement after two months and denial of participation in landing of contraband – Designated Court held him guilty under Section 3(3) but acquitted him of the charge of major conspiracy as he did not participate in any meeting and act done was prior to bomb blast. Held, no interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – Involvement of A-128 – Appellant A128, unemployed, closely connected with ‘K’ and other accused – Went to Dubai to go to Pakistan for weapon training – As he could not go to Pakistan, returned to Bombay – Participated twice in landing and transportation of contraband – His confessional statement found voluntary – Given 48 hours to think – A134 and A64 corroborated prosecution’s story about his participation in landing the contraband in Shekhadi – A58, stating about giving of revolver to appellant by Tiger Memon (AA) which was later returned – His going to Dubai confirmed by A109 – Retraction of confessional statement after two months and denial of participation in landing of contraband – Designated Court held him guilty under Section 3(3) but acquitted him of the charge of major conspiracy as he did not participate in any meeting and act done was prior to bomb blast. Held, no interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – Respondent 128 acquitted of charges of major conspiracy – Appeal by State – Designated Court held him guilty under Section 3(3) as he participated in landing / transportation of contraband – Agreed to go to Pakistan to get training in arms – Attended meeting in Dubai to carry out terrorist activities but acquitted him of the charges of larger conspiracy as he could not go to Pakistan for training – Justification. No cogent reasons to interfere after following the parameters laid down by court for entertaining appeal against acquittal.
Held:
Appellant (A-128) was involved in the Shekhadi landing operation as has been denoted by the said material and has thus committed an offence under section 3(3) TADA. It was further held that considering the evidence of the said landing, and the role carried out by the appellant (A-128) and ultimately the fact that he himself had continued with the said operation, and had not provided any information about the same to any proper authority, the defences contention that earlier he did not know the purpose for which he was going to Shekhadi, or that he was not aware that the arms and ammunition were to be smuggled, is liable to be rejected. The confession of the appellant (A-128) itself reveals, that during the course of said operation he became fully aware of the nature of the contraband goods i.e., the same being arms and ammunition. The appellant (A-128) being taken to Bombay for the execution of the said operation, and thereafter being sent to Dubai for training denotes that he was a man in whom Tiger Memon (AA) had confidence, as he did in the other conspirators. (Para 538)
Since the appellant (A-128) committed the aforementioned relevant acts much before the main conspiracy of actually committing the bomb blasts planned and had not participated in any meetings or committed any acts in furtherance of the said main conspiracy, it was held that he could not be held guilty for the offence of larger conspiracy i.e. first charge, but is required to be held guilty for the conspiracy to commit terrorist acts as aforementioned. (Para 538.1)
We find no evidence on record warranting interference with the judgment of the learned Designated Court. The said appeal lacks merit and is thus, accordingly dismissed. (Para 539)
The respondent (A-128) had participated in landing and transportation of arms, ammunition and explosives. It was also concluded that he (A-128) had agreed to undergo weapons training in Pakistan for committing terrorist acts. He also attended a meeting at Dubai alongwith coconspirators to plan commission of terrorist acts. Thus, the respondent (A-128) was found guilty of conspiracy only to the extent of commission of terrorist acts punishable under Section 3(3) TADA, and not of the larger conspiracy as he could not go to Pakistan for training for handling of arms and ammunition. He (A-128) had been acquitted of the charge of larger conspiracy for the reason that he did not participate in any act after his return from Dubai on 1.3.1993. (Para 543)
We do not find any cogent reason to interfere in the matter. The appeal lacks merit and is accordingly dismissed. (Para 545)
JUDGEMENT:
521. This appeal has been preferred against the judgment and order dated 31.5.2007 passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast cases, Greater Bombay in Bombay Blast Case No.1/93, by which the appellant (A-128) has been convicted under Section 3(3) TADA, on two counts, and has been awarded a sentence of 10 years, alongwith a fine of Rs.25,000/- , on each count. Further, all the sentences have been directed to run concurrently.
522. In addition to the main charge of conspiracy, the appellant was charged for participating in and assisting Mushtaq @Ibrahim @ Tiger Abdul Razak Memon, and his associates in the landing and transportation of arms, ammunition and explosives which were smuggled into India for the purpose of committing terrorist acts, at various points such as, Shekhadi, Taluka Shrivardhan, District Raigad on 3rd and 7th February, 1993, and further for agreeing to undergo weapons training in Pakistan in the handling of arms, ammunition and explosives for committing the said terrorist acts and for this purpose, he travelled to Dubai, and attended conspiratorial meetings held there in these regards.
523. Shri Mushtaq Ahmad, learned counsel appearing on behalf of the appellant (A-128), has submitted that he was only 21 years of age at the time of the aforementioned incident, and that he had falsely been implicated in the case, as he was not involved in any overt act, nor he had gone to Pakistan for any weapons training. A-128 was arrested at Bhusawal, and his conviction cannot stand for want of evidence against him. Some of the co-accused in their confessional statements, named merely Shahnawaz and in addition to the appellant, there is also another convict named Shahnawaz Qureshi. Therefore, there has been confusion regarding the identification of the appellant (A-128). Hence, this appeal deserves to be allowed.
524. On the contrary, Shri Mukul Gupta, learned senior counsel appearing on behalf of the respondent, has vehemently opposed the appeal contending that the confessional statement of the appellant (A-128) has been corroborated by the confessional statements of various other co-accused, particularly, Dawood Taklya Mohammed Phanse (A-14), Munna @Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24), Ashfaq Kasim Havaldar (A-38), Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64), Shaikh Kasam @ Babulal Ismail Shaikh (A-109) and Salim Kutta (A-134). The appellant (A-128) had admittedly gone to Dubai, and participated in conspiratorial meetings held there, and had also been closely associated with the main conspirators and further that he had met Tiger Memon (AA) and others several times. Therefore, no interference is called for.
525. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
526. Evidence against the appellant :
(a) His own confessional statement
(b) Confessional statement of Munna @Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24)
(c) Confessional statement of Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58)
(d) Confessional statement of Shaikh Kasam @Babulal Ismail Shaikh (A-109)
(e) Confessional statement of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64)
(f) Confessional statements of Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137), Murad Ibrahim Khan (A-130)
(g) Depositions of Harish Chandra Surve (PW-108), H.C. Singh (PW-474), Massey C. Fernandes (PW-311) and Vijay Govind More (PW-137)
527. Confessional statement of the appellant (A-128):
In his confessional statement dated 12.5.1994, he deposed that in 1991, he was living in Chandshahwali Dargah, Pawai, a place where he had been residing for a long time and that here he met a person named Karimullah. After leaving his job in White Star International, the appellant (A-128) met Karimullah and asked him to get him (A-128) a job. He (A-128) was taken to the office of Eijaz Pathan of M/s Famous Construction but was not successful. Then the appellant met Babulal (A-109) and Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), who was also associated with Karimullah and developed a visiting relationship with them. After the demolition of the Babri Masjid, Karimullah called the appellant (A-128) through Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), and met him (A-128) in a flat near Rajasthan Hotel, Bombay, in the last week of January, or the first week of February, 1993. At such time, several other accused were also present in the flat. He learnt later on, that the said flat belonged to Yeda Yaqub. Karimullah assured the appellant (A- 128) that he would find some work for him and also gave him Rs.500/- for household expenditure. After 2-3 days, when he went to meet Karimullah, he found large number of other co-accused sitting in the said flat, and saw that they were getting ready to go somewhere. Akbar asked the appellant (A-128) to go with them. They all proceeded in a blue coloured commander Jeep. While going with them, he also saw Tiger Memon (AA) and other persons moving alongwith them in another jeep. He was told by Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58) that the persons in the other jeep who were traveling with them were Tiger Memon, Javed Chikna, Tahir Takalpa, Nazir, Bashir Khan, Salim Kurla, Rahat Ali and Mansoor Ahmad. He was told by Akbar that they were going to Shrivardhan to collect weapons etc., which had been ordered by Tiger Memon (AA) for the Bombay blasts. All the persons including the appellant (A-128) and Tiger Memon (AA) reached Shekhadi at 8.00 p.m. After reaching the Beach, Tiger Memon removed a rifle from a black bag and gave the same to Javed Chikna, Karimullah and Nasir. After sometime, Tiger Memon, alongwith a few co-accused, particularly, Jawed Chikna, Yeda Yaqub, Dawood Taklya and some labourers went into the Sea in a trawler which was already been parked there, and returned after 15-20 minutes with some goods. They took 3-4 rounds to the Sea and back, and brought sacks with them each time they returned. Tiger Memon opened some sacks and the appellant (A-128) saw that they contained rifles, hand grenades and plastic bags containing a black coloured powder in them. Bullets were also among the said contraband, which were kept by Tiger Memon in his Maruti car. After that they left the said place and travelled for about an hour and reached a building which looked like a factory with a big tower. After reaching there, the sacks were kept outside once unloaded from the tempo. Some packets containing rifles and plastic bags were kept in the cavities in the Commander jeeps. At 5 a.m. they left the said tower and reached Mahad from where they left for Bombay on the instructions of Tiger Memon (AA). The appellant (A-128) was sitting in the tempo alongwith Karimullah. The appellant (A-128) got down from the tempo upon the instructions of the other co-accused and the tempo was taken to Mumbra and its contents were emptied there by Yeda Yakub. He further said that after a few days Karimullah asked the appellant (A-128) over the telephone whether he had a passport, and as the answer provided by him was in the affirmative, he (A-128) was called alongwith his passport. When he went to meet Karimullah with his (A-128) passport, he found some of the other co-accused present in Karimullahs flat. He (A-128) handed over his passport to Karimullah and asked why it was required, he (A-128) was then told that he (A-128) had to go to Dubai for weapons training. The appellant (A-128) subsequently left for Dubai on 15.2.1993 on the ticket arranged by the co-accused. He went there alongwith seven other co-accused. They went to Dubai by an Air India flight and reached there at 6.00 oclock in the evening. They got their visa and went to the flat of Eijaz Pathan on the 8 th floor of a building near the Sea. The next day some other accused also reached there. Accused Yeda Yakub met them on a few occasions and told them that he was in the process of making arrangements for them to go to Pakistan where they would receive their training. However, he (A-128) could not go to Pakistan as the said training could not be arranged, and hence, he (A-128) returned to Bombay on 1.3.1993. He (A-128) was arrested from Bhusawal when he was with his newly wedded wife. However, he had not committed any overt act so far as the Bombay blasts dated 12.3.1993 are concerned.
528. It is evident from his confessional statement that he was unemployed at the relevant time. He (A-128) was closely connected with Karimullah and the other co-accused. He (A-128) was fully aware that the co-accused were smuggling silver, as well as the arms and ammunition. He had gone to Dubai for the purpose of traveling further to Pakistan for weapons training. He (A-128) could not go to Pakistan but waited for 15 days in Dubai and later returned to Bombay. His expenses for traveling to Dubai and back were met by the co-accused. He participated twice in the landing and transportation of arms and ammunition. His confessional statement makes it abundantly clear that his statement was voluntary. He was given sufficient time to re-think and was allowed to stay in the CBI office for a period of 48 hours, and he (A-128) made it clear that during this period no body had met, pressurised, threatened or intimidated him.
Confessional statement of Munna @Mohammad Ali (A-24):
529. The said co-accused corroborated the prosecutions case to the extent that the appellant (A-128) had in fact, participated in the landing at Shekhadi.
530. Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), had been staying alongwith Eijaz Mohd Sharif @Eijaz Pathan @ Sayyed Zakir (A-137) at the house of Haji Yakub during the riots that took place in the month of January, 1993 in Bombay, alongwith some other persons including the appellant (A-128). During that period, Munna (A-24) told the appellant (A-128) and the other co-accused that he had received a telephone call from Eijaz Bhai asking him to unload the Tigers silver. The accused (A-58), alongwith other co-accused participated in the landing at Shrivardhan. He (A-58) further stated that at the time of such landing, Tiger Memon had given him a pistol, and one AK-47 rifle each to Munna and Karimullah and a revolver to the appellant (A- 128) to be used in the event of any intervention during the landing. However, the said weapons were returned after the landing was completed.
531. Babulal (A-109) supported the case of the prosecution to the extent that the appellant (A-128) visited Dubai alongwith the other co-accused.
532. Nasir Abdul Kader Kewal (A-64) has supported the version of events that show the participation of the appellant (A- 128) in the Shekhadi landing.
533. This prosecution case also stood corroborated by Sultan-E- Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137) and Murad Ibrahim Khan (A- 130).
534. Harishchand Laxman Surve (PW-108) and Vijay Govind More (PW-137) were employed as watchmen, and they have also deposed against the appellant (A-128) as regards his presence there alongwith the other co-accused when they came to Wangni Tower from Shekhadi with arms etc.
Evidence of witnesses:
535. In addition thereto, the case of the prosecution has been supported by H.C. Singh (PW-474), Superintendent of Police, CBI who recorded the confessional statement of the appellant (A-128) and Massey C Fernandes (PW-311), a former employee of Hans Pvt. Ltd. who arranged tickets for Shahnawaz Khan (A-128) and others, and Vijay Govind More (PW-137), an employee of Abu Travel Agency, who deposed to the effect that 11 persons tickets were arranged by him and that payment for the same was made by the co-accused.
536. The appellant (A-128) made a retraction of his confessional statement on 1.7.1994 i.e., within two months of making such confessional statement, stating that he never made any statement at all and that he had been forced to make a confessional statement and was also forced to sign on blank papers. He had hence been falsely implicated in the said case.
537. In his statement under Section 313 of the Code of Criminal Procedure, 1973, while replying to Question Nos. 218 and 292, he denied his participation in the Shekhadi landing of weapons and in the transportation of the same to Bombay. He also denied that he had gone to Dubai to execute a certain conspiracy and in fact, rather suggested that he had gone there on a business trip.
538. Upon consideration of the entire evidence on record, the Designated Court held that the same leads to the inescapable conclusion of the appellant (A-128) being involved in the Shekhadi landing operation as has been denoted by the said material and has thus committed an offence under section 3(3) TADA. It was further held that considering the evidence of the said landing, and the role carried out by the appellant (A-128) and ultimately the fact that he himself had continued with the said operation, and had not provided any information about the same to any proper authority, the defences contention that earlier he did not know the purpose for which he was going to Shekhadi, or that he was not aware that the arms and ammunition were to be smuggled, is liable to be rejected. The confession of the appellant (A-128) itself reveals, that during the course of said operation he became fully aware of the nature of the contraband goods i.e., the same being arms and ammunition. The appellant (A-128) being taken to Bombay for the execution of the said operation, and thereafter being sent to Dubai for training denotes that he was a man in whom Tiger Memon (AA) had confidence, as he did in the other conspirators.
538.1. However since the appellant (A-128) committed the aforementioned relevant acts much before the main conspiracy of actually committing the bomb blasts planned and had not participated in any meetings or committed any acts in furtherance of the said main conspiracy, it was held that he could not be held guilty for the offence of larger conspiracy i.e. first charge, but is required to be held guilty for the conspiracy to commit terrorist acts as aforementioned.
539. We find no evidence on record warranting interference with the judgment of the learned Designated Court. The said appeal lacks merit and is thus, accordingly dismissed.
Criminal Appeal No. 1032 of 2012
540. Though respondent has been convicted for various offences, he has been acquitted of the charge of conspiracy. Hence, the State has preferred this appeal against the order of acquittal.
541. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the evidence against the respondent (A-128) has been his own confession, and confessional statements of Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Shaikh Kasam @Babulal Ismail Shaikh (A-109), Manoj Kumar Gupta (A-24), Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137), Nasir Abdul Kader Kewal (A-64), Murad Ibrahim Khan (A-130), and further depositions of H.C. Singh (PW-474), Harish Chandra Surve (PW-108), Iftihar Ahmed Iqbal Ahmed (PW-317), Abdul Gafoor (PW-197) and Chaturbhuj R. Rode (PW-222). Thus, he ought to have been convicted for the first charge.
542. Shri Mushtaq Ahmad, learned counsel appearing for the respondent has submitted that the Designated Court has considered the entire evidence, and after appreciating the same, it came to the conclusion that the respondent was not guilty of the first charge of conspiracy. In view of the parameters laid down by this court, no interference is required against the order of acquittal. Hence, the appeal is liable to be dismissed.
543. After appreciating the entire evidence, the Designated Court came to the conclusion that the respondent (A-128) had participated in landing and transportation of arms, ammunition and explosives. It was also concluded that he (A-128) had agreed to undergo weapons training in Pakistan for committing terrorist acts. He also attended a meeting at Dubai alongwith coconspirators to plan commission of terrorist acts. Thus, the respondent (A-128) was found guilty of conspiracy only to the extent of commission of terrorist acts punishable under Section 3(3) TADA, and not of the larger conspiracy as he could not go to Pakistan for training for handling of arms and ammunition. He (A-128) had been acquitted of the charge of larger conspiracy for the reason that he did not participate in any act after his return from Dubai on 1.3.1993.
544. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
545. We do not find any cogent reason to interfere in the matter. The appeal lacks merit and is accordingly dismissed.
546. Before parting with the case, we may clarify that if the accused-appellant(s) whose appeals have been dismissed and are on bail, their bail bonds are cancelled and they are directed to surrender within four weeks from today, failing which the learned Designated Court, TADA shall take them into custody and send them to jail to serve out the remaining part of their sentences.
Annexure A
S.No. Criminal Appeal Accused Name and Number Sentence by Award by
Designated Supreme
Court Court
1. 1438 of 2007 Ahmed Shah Khan Durrani 5 years RI Dismissed
@ A.S.Mubarak S (A-20) with fine of Rs.25,000/-
2. 912 of 2007 Aziz Ahmed Md. Ahmed 5 years RI Dismissed
Shaikh (A-21) with fine of Rs.25,000/-
3. 1030 of 2012 Ahmad Shah Khan @ Acquitted Dismissed
(State appeal) Salim Durani & Anr. (A-20 and A-21)
4. 1311 of 2007 Yusuf Khan @ Kayum 5 years RI Dismissed
Kasam Khan (A-31) with fine of
AND Rs.25,000/-
417 of 2011 Acquitted Dismissed
(State appeal)
5. 1610 of 2011 Uttam Shantaram Potdar 10 years RI Dismissed;
(A-30) with fine of
AND Rs.50,000/-;
and 14 years
RI with fine
of Rs.1 lakh
398 of 2011 Acquitted Allowed &
(State appeal) awarded
life imprisonment
6. 1420 of 2007 Mohd. Rafiq @ Rafiq Madi 5 years RI Dismissed
AND Musa Biyariwala (A-46) with fine of
Rs.25,000/-;
and 7 years
RI with fine of Rs.50,000/-
1031 of 2012 Acquitted Dismissed
(State appeal)
7. 675-681 of 2008 Suleman Mohamed Kasam A-18: Dismissed
Ghavte & Ors. (A-18, A-28, 7 years RI
A-61, A-62 and A-73) with fine of
Rs.25,000/-
A-28 Dismissed
7 years RI
with fine of
Rs.25,000/-
A-61 Dismissed
7 years RI
with fine of
Rs.50,000/-
A-62 Dismissed
9 years RI
with fine of
Rs.50,000/-
A-73 Dismissed
8 years RI
with fine of
Rs.10,000/-
8. 600 of 2011 Sayed Abdul Rehman Acquitted Dismissed (State appeal) Shaikh (A-28)
9. 406 of 2011 Gulam Hafiz @ Baba (A-73) Acquitted Dismissed (State appeal)
10 408 of 2011 Suleman Kasam Ghavate Acquitted Dismissed (State appeal) (A-18)
11. 1034 of 2012 Tulsi Ram Dondu Surve (A-62) Acquitted Dismissed (State appeal)
12. 416 of 2011 Sujjad Alam (A-61) Acquitted Dismissed (State appeal)
13. 512 of 2008 Abdulla Ibrahim Surti 5 years RI Dismissed
& Ors. (A-66) with fine of
Rs. 25,000;
and 6 years
RI with fine
of Rs. 25000/-
Faki Ali Faki Ahmed 5 years RI Dismissed
Subedar (A-74) with fine of
Rs. 25,000;
and 6 years
RI with fine
of Rs.25,000/-
Janardhan Pandurang 6 years RI Dismissed
Gambas (A-81) with fine of
Rs.50,000;
and 3 years
RI with fine
of Rs.25,000/-
Sayed @ Mujju Ismail Ibrahim 5 years RI Dismissed
Kadri (A-104) with fine of
Rs.10,000/-
Srikrishna Yeshwant 6 years RI
Pashilkar (A-110) with fine of
Rs. 25,000/-
401 of 2011 Acquitted from Dismissed
(State appeal) the charge of
(A-74) larger
conspiracy
595 of 2011 Acquitted from Dismissed
(State appeals) the charge of
(A-66) larger cons- piracy
14. 171 of 2008 Ashok Narayan Muneshwar Both – 6 years Dismissed
and 172 of 2008 (A-70) Arun Pandari Nath RI with fine of
Madhukar Mahadik (A- 99) Rs.25,000;
403 of 2011 Acquitted for larger conspiracy Dismissed (State appeal)
15. 1630 of 2007 and Liyakat Ali Habib Khan (A-85) 5 years RI Dismissed with fine of Rs. 25,000/-;
1029 of 2012 Acquitted for Dismissed (State appeal) larger conspiracy
16. 207 of 2008 Mujib Sharif Parkar (A-131) 5 years RI Dismissed with fine of AND Rs. 25,000/-
415 of 2011 Acquitted for Dismissed (State appeal) larger conspiracy
17. 2173 of 2010 Mohammed Sultan Sayyed 7 years RI Dismissed
(A-90) with fine
of Rs. 1 lakh
18. 1632 of 2007 Ranjit Kumar Singh (A-102) 9 years RI Dismissed
with fine of
Rs. 3 lakhs
19. 271 of 2008 Sudhanwa Sadashiv 8 years RI Dismissed
Talavdekar (A-113) with fine of
Rs. 2 lakhs
20. 598 of 2011 Jayawant Keshav Acquitted for Dismissed
(State appeal) Gaurav (A-82) larger
conspiracy
Mohd. Sultan Sayyad
(A-90)
Ranjitkumar Singh
Baleshwar Prasad
(A-102)
Sudhanwa Sadashiv
Talwadekar (A-113)
21. 1439 of 2007 Khalil Ahmed Sayed Ali 10 years RI Dismissed
Nazir (A-42) with fine of
Rs.50,000/-;
10 years RI
with fine of
Rs.25,000/-;
AND and 10 years
RI with fine
of Rs. 50,000/-
1035 of 2012 Acquitted for Dismissed
(State appeal) larger
conspiracy
22. 203 of 2008 Shahnawaz Hajwani (A-106) and Dismissed
(A-106), Sikkandar Issaq (A-111) –
AND Hajwani (A-111) and 5 years RI
Issaq Mohammed with fine of
Hajwane (A-79) Rs. 10,000/-
(A-79) –
7 years RI
with fine of Rs. 25,000/-
396 of 2011 Acquitted for Dismissed
(State appeal) larger
(A-106 & conspiracy
A-111)
414 of 2011 Issaq Mohd. Hajwane Acquitted for Allowed
(State appeal) larger and
(A-79) conspiracy awarded life impriso- nment
23. 1423 of 2007 AND Shah Nawaz Khan (A-128) 10 years RI Dismissed with fine of
Rs. 25,000/-
1032 of 2012 Acquitted for Dismissed (State appeal) larger conspiracy
These are cross appeals filed by the accused as well as by the State. Appeals filed by the accused are dismissed, while the appeals filed by the State being Criminal Appeal Nos. 398 of 2011 against Uttam Shantaram Potdar (A-30), and Criminal Appeal No. 414 of 2011 against Issaq Mohd. Hajwane (A-79) are allowed. A-30 and A-79 are awarded life imprisonment. They are directed to surrender within four weeks from today, failing which the learned Designated Court, TADA shall take them into custody and send them to jail to serve out the remaining part of their sentences, as have been awarded by the Designated Court.
***************
522. In addition to the main charge of conspiracy, the appellant was charged for participating in and assisting Mushtaq @Ibrahim @ Tiger Abdul Razak Memon, and his associates in the landing and transportation of arms, ammunition and explosives which were smuggled into India for the purpose of committing terrorist acts, at various points such as, Shekhadi, Taluka Shrivardhan, District Raigad on 3rd and 7th February, 1993, and further for agreeing to undergo weapons training in Pakistan in the handling of arms, ammunition and explosives for committing the said terrorist acts and for this purpose, he travelled to Dubai, and attended conspiratorial meetings held there in these regards.
523. Shri Mushtaq Ahmad, learned counsel appearing on behalf of the appellant (A-128), has submitted that he was only 21 years of age at the time of the aforementioned incident, and that he had falsely been implicated in the case, as he was not involved in any overt act, nor he had gone to Pakistan for any weapons training. A-128 was arrested at Bhusawal, and his conviction cannot stand for want of evidence against him. Some of the co-accused in their confessional statements, named merely Shahnawaz and in addition to the appellant, there is also another convict named Shahnawaz Qureshi. Therefore, there has been confusion regarding the identification of the appellant (A-128). Hence, this appeal deserves to be allowed.
524. On the contrary, Shri Mukul Gupta, learned senior counsel appearing on behalf of the respondent, has vehemently opposed the appeal contending that the confessional statement of the appellant (A-128) has been corroborated by the confessional statements of various other co-accused, particularly, Dawood Taklya Mohammed Phanse (A-14), Munna @Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24), Ashfaq Kasim Havaldar (A-38), Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64), Shaikh Kasam @ Babulal Ismail Shaikh (A-109) and Salim Kutta (A-134). The appellant (A-128) had admittedly gone to Dubai, and participated in conspiratorial meetings held there, and had also been closely associated with the main conspirators and further that he had met Tiger Memon (AA) and others several times. Therefore, no interference is called for.
525. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
526. Evidence against the appellant :
(a) His own confessional statement
(b) Confessional statement of Munna @Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24)
(c) Confessional statement of Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58)
(d) Confessional statement of Shaikh Kasam @Babulal Ismail Shaikh (A-109)
(e) Confessional statement of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64)
(f) Confessional statements of Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137), Murad Ibrahim Khan (A-130)
(g) Depositions of Harish Chandra Surve (PW-108), H.C. Singh (PW-474), Massey C. Fernandes (PW-311) and Vijay Govind More (PW-137)
527. Confessional statement of the appellant (A-128):
In his confessional statement dated 12.5.1994, he deposed that in 1991, he was living in Chandshahwali Dargah, Pawai, a place where he had been residing for a long time and that here he met a person named Karimullah. After leaving his job in White Star International, the appellant (A-128) met Karimullah and asked him to get him (A-128) a job. He (A-128) was taken to the office of Eijaz Pathan of M/s Famous Construction but was not successful. Then the appellant met Babulal (A-109) and Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), who was also associated with Karimullah and developed a visiting relationship with them. After the demolition of the Babri Masjid, Karimullah called the appellant (A-128) through Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), and met him (A-128) in a flat near Rajasthan Hotel, Bombay, in the last week of January, or the first week of February, 1993. At such time, several other accused were also present in the flat. He learnt later on, that the said flat belonged to Yeda Yaqub. Karimullah assured the appellant (A- 128) that he would find some work for him and also gave him Rs.500/- for household expenditure. After 2-3 days, when he went to meet Karimullah, he found large number of other co-accused sitting in the said flat, and saw that they were getting ready to go somewhere. Akbar asked the appellant (A-128) to go with them. They all proceeded in a blue coloured commander Jeep. While going with them, he also saw Tiger Memon (AA) and other persons moving alongwith them in another jeep. He was told by Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58) that the persons in the other jeep who were traveling with them were Tiger Memon, Javed Chikna, Tahir Takalpa, Nazir, Bashir Khan, Salim Kurla, Rahat Ali and Mansoor Ahmad. He was told by Akbar that they were going to Shrivardhan to collect weapons etc., which had been ordered by Tiger Memon (AA) for the Bombay blasts. All the persons including the appellant (A-128) and Tiger Memon (AA) reached Shekhadi at 8.00 p.m. After reaching the Beach, Tiger Memon removed a rifle from a black bag and gave the same to Javed Chikna, Karimullah and Nasir. After sometime, Tiger Memon, alongwith a few co-accused, particularly, Jawed Chikna, Yeda Yaqub, Dawood Taklya and some labourers went into the Sea in a trawler which was already been parked there, and returned after 15-20 minutes with some goods. They took 3-4 rounds to the Sea and back, and brought sacks with them each time they returned. Tiger Memon opened some sacks and the appellant (A-128) saw that they contained rifles, hand grenades and plastic bags containing a black coloured powder in them. Bullets were also among the said contraband, which were kept by Tiger Memon in his Maruti car. After that they left the said place and travelled for about an hour and reached a building which looked like a factory with a big tower. After reaching there, the sacks were kept outside once unloaded from the tempo. Some packets containing rifles and plastic bags were kept in the cavities in the Commander jeeps. At 5 a.m. they left the said tower and reached Mahad from where they left for Bombay on the instructions of Tiger Memon (AA). The appellant (A-128) was sitting in the tempo alongwith Karimullah. The appellant (A-128) got down from the tempo upon the instructions of the other co-accused and the tempo was taken to Mumbra and its contents were emptied there by Yeda Yakub. He further said that after a few days Karimullah asked the appellant (A-128) over the telephone whether he had a passport, and as the answer provided by him was in the affirmative, he (A-128) was called alongwith his passport. When he went to meet Karimullah with his (A-128) passport, he found some of the other co-accused present in Karimullahs flat. He (A-128) handed over his passport to Karimullah and asked why it was required, he (A-128) was then told that he (A-128) had to go to Dubai for weapons training. The appellant (A-128) subsequently left for Dubai on 15.2.1993 on the ticket arranged by the co-accused. He went there alongwith seven other co-accused. They went to Dubai by an Air India flight and reached there at 6.00 oclock in the evening. They got their visa and went to the flat of Eijaz Pathan on the 8 th floor of a building near the Sea. The next day some other accused also reached there. Accused Yeda Yakub met them on a few occasions and told them that he was in the process of making arrangements for them to go to Pakistan where they would receive their training. However, he (A-128) could not go to Pakistan as the said training could not be arranged, and hence, he (A-128) returned to Bombay on 1.3.1993. He (A-128) was arrested from Bhusawal when he was with his newly wedded wife. However, he had not committed any overt act so far as the Bombay blasts dated 12.3.1993 are concerned.
528. It is evident from his confessional statement that he was unemployed at the relevant time. He (A-128) was closely connected with Karimullah and the other co-accused. He (A-128) was fully aware that the co-accused were smuggling silver, as well as the arms and ammunition. He had gone to Dubai for the purpose of traveling further to Pakistan for weapons training. He (A-128) could not go to Pakistan but waited for 15 days in Dubai and later returned to Bombay. His expenses for traveling to Dubai and back were met by the co-accused. He participated twice in the landing and transportation of arms and ammunition. His confessional statement makes it abundantly clear that his statement was voluntary. He was given sufficient time to re-think and was allowed to stay in the CBI office for a period of 48 hours, and he (A-128) made it clear that during this period no body had met, pressurised, threatened or intimidated him.
Confessional statement of Munna @Mohammad Ali (A-24):
529. The said co-accused corroborated the prosecutions case to the extent that the appellant (A-128) had in fact, participated in the landing at Shekhadi.
530. Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), had been staying alongwith Eijaz Mohd Sharif @Eijaz Pathan @ Sayyed Zakir (A-137) at the house of Haji Yakub during the riots that took place in the month of January, 1993 in Bombay, alongwith some other persons including the appellant (A-128). During that period, Munna (A-24) told the appellant (A-128) and the other co-accused that he had received a telephone call from Eijaz Bhai asking him to unload the Tigers silver. The accused (A-58), alongwith other co-accused participated in the landing at Shrivardhan. He (A-58) further stated that at the time of such landing, Tiger Memon had given him a pistol, and one AK-47 rifle each to Munna and Karimullah and a revolver to the appellant (A- 128) to be used in the event of any intervention during the landing. However, the said weapons were returned after the landing was completed.
531. Babulal (A-109) supported the case of the prosecution to the extent that the appellant (A-128) visited Dubai alongwith the other co-accused.
532. Nasir Abdul Kader Kewal (A-64) has supported the version of events that show the participation of the appellant (A- 128) in the Shekhadi landing.
533. This prosecution case also stood corroborated by Sultan-E- Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137) and Murad Ibrahim Khan (A- 130).
534. Harishchand Laxman Surve (PW-108) and Vijay Govind More (PW-137) were employed as watchmen, and they have also deposed against the appellant (A-128) as regards his presence there alongwith the other co-accused when they came to Wangni Tower from Shekhadi with arms etc.
Evidence of witnesses:
535. In addition thereto, the case of the prosecution has been supported by H.C. Singh (PW-474), Superintendent of Police, CBI who recorded the confessional statement of the appellant (A-128) and Massey C Fernandes (PW-311), a former employee of Hans Pvt. Ltd. who arranged tickets for Shahnawaz Khan (A-128) and others, and Vijay Govind More (PW-137), an employee of Abu Travel Agency, who deposed to the effect that 11 persons tickets were arranged by him and that payment for the same was made by the co-accused.
536. The appellant (A-128) made a retraction of his confessional statement on 1.7.1994 i.e., within two months of making such confessional statement, stating that he never made any statement at all and that he had been forced to make a confessional statement and was also forced to sign on blank papers. He had hence been falsely implicated in the said case.
537. In his statement under Section 313 of the Code of Criminal Procedure, 1973, while replying to Question Nos. 218 and 292, he denied his participation in the Shekhadi landing of weapons and in the transportation of the same to Bombay. He also denied that he had gone to Dubai to execute a certain conspiracy and in fact, rather suggested that he had gone there on a business trip.
538. Upon consideration of the entire evidence on record, the Designated Court held that the same leads to the inescapable conclusion of the appellant (A-128) being involved in the Shekhadi landing operation as has been denoted by the said material and has thus committed an offence under section 3(3) TADA. It was further held that considering the evidence of the said landing, and the role carried out by the appellant (A-128) and ultimately the fact that he himself had continued with the said operation, and had not provided any information about the same to any proper authority, the defences contention that earlier he did not know the purpose for which he was going to Shekhadi, or that he was not aware that the arms and ammunition were to be smuggled, is liable to be rejected. The confession of the appellant (A-128) itself reveals, that during the course of said operation he became fully aware of the nature of the contraband goods i.e., the same being arms and ammunition. The appellant (A-128) being taken to Bombay for the execution of the said operation, and thereafter being sent to Dubai for training denotes that he was a man in whom Tiger Memon (AA) had confidence, as he did in the other conspirators.
538.1. However since the appellant (A-128) committed the aforementioned relevant acts much before the main conspiracy of actually committing the bomb blasts planned and had not participated in any meetings or committed any acts in furtherance of the said main conspiracy, it was held that he could not be held guilty for the offence of larger conspiracy i.e. first charge, but is required to be held guilty for the conspiracy to commit terrorist acts as aforementioned.
539. We find no evidence on record warranting interference with the judgment of the learned Designated Court. The said appeal lacks merit and is thus, accordingly dismissed.
Criminal Appeal No. 1032 of 2012
540. Though respondent has been convicted for various offences, he has been acquitted of the charge of conspiracy. Hence, the State has preferred this appeal against the order of acquittal.
541. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the evidence against the respondent (A-128) has been his own confession, and confessional statements of Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Shaikh Kasam @Babulal Ismail Shaikh (A-109), Manoj Kumar Gupta (A-24), Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137), Nasir Abdul Kader Kewal (A-64), Murad Ibrahim Khan (A-130), and further depositions of H.C. Singh (PW-474), Harish Chandra Surve (PW-108), Iftihar Ahmed Iqbal Ahmed (PW-317), Abdul Gafoor (PW-197) and Chaturbhuj R. Rode (PW-222). Thus, he ought to have been convicted for the first charge.
542. Shri Mushtaq Ahmad, learned counsel appearing for the respondent has submitted that the Designated Court has considered the entire evidence, and after appreciating the same, it came to the conclusion that the respondent was not guilty of the first charge of conspiracy. In view of the parameters laid down by this court, no interference is required against the order of acquittal. Hence, the appeal is liable to be dismissed.
543. After appreciating the entire evidence, the Designated Court came to the conclusion that the respondent (A-128) had participated in landing and transportation of arms, ammunition and explosives. It was also concluded that he (A-128) had agreed to undergo weapons training in Pakistan for committing terrorist acts. He also attended a meeting at Dubai alongwith coconspirators to plan commission of terrorist acts. Thus, the respondent (A-128) was found guilty of conspiracy only to the extent of commission of terrorist acts punishable under Section 3(3) TADA, and not of the larger conspiracy as he could not go to Pakistan for training for handling of arms and ammunition. He (A-128) had been acquitted of the charge of larger conspiracy for the reason that he did not participate in any act after his return from Dubai on 1.3.1993.
544. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
545. We do not find any cogent reason to interfere in the matter. The appeal lacks merit and is accordingly dismissed.
546. Before parting with the case, we may clarify that if the accused-appellant(s) whose appeals have been dismissed and are on bail, their bail bonds are cancelled and they are directed to surrender within four weeks from today, failing which the learned Designated Court, TADA shall take them into custody and send them to jail to serve out the remaining part of their sentences.
Annexure A
S.No. Criminal Appeal Accused Name and Number Sentence by Award by
Designated Supreme
Court Court
1. 1438 of 2007 Ahmed Shah Khan Durrani 5 years RI Dismissed
@ A.S.Mubarak S (A-20) with fine of Rs.25,000/-
2. 912 of 2007 Aziz Ahmed Md. Ahmed 5 years RI Dismissed
Shaikh (A-21) with fine of Rs.25,000/-
3. 1030 of 2012 Ahmad Shah Khan @ Acquitted Dismissed
(State appeal) Salim Durani & Anr. (A-20 and A-21)
4. 1311 of 2007 Yusuf Khan @ Kayum 5 years RI Dismissed
Kasam Khan (A-31) with fine of
AND Rs.25,000/-
417 of 2011 Acquitted Dismissed
(State appeal)
5. 1610 of 2011 Uttam Shantaram Potdar 10 years RI Dismissed;
(A-30) with fine of
AND Rs.50,000/-;
and 14 years
RI with fine
of Rs.1 lakh
398 of 2011 Acquitted Allowed &
(State appeal) awarded
life imprisonment
6. 1420 of 2007 Mohd. Rafiq @ Rafiq Madi 5 years RI Dismissed
AND Musa Biyariwala (A-46) with fine of
Rs.25,000/-;
and 7 years
RI with fine of Rs.50,000/-
1031 of 2012 Acquitted Dismissed
(State appeal)
7. 675-681 of 2008 Suleman Mohamed Kasam A-18: Dismissed
Ghavte & Ors. (A-18, A-28, 7 years RI
A-61, A-62 and A-73) with fine of
Rs.25,000/-
A-28 Dismissed
7 years RI
with fine of
Rs.25,000/-
A-61 Dismissed
7 years RI
with fine of
Rs.50,000/-
A-62 Dismissed
9 years RI
with fine of
Rs.50,000/-
A-73 Dismissed
8 years RI
with fine of
Rs.10,000/-
8. 600 of 2011 Sayed Abdul Rehman Acquitted Dismissed (State appeal) Shaikh (A-28)
9. 406 of 2011 Gulam Hafiz @ Baba (A-73) Acquitted Dismissed (State appeal)
10 408 of 2011 Suleman Kasam Ghavate Acquitted Dismissed (State appeal) (A-18)
11. 1034 of 2012 Tulsi Ram Dondu Surve (A-62) Acquitted Dismissed (State appeal)
12. 416 of 2011 Sujjad Alam (A-61) Acquitted Dismissed (State appeal)
13. 512 of 2008 Abdulla Ibrahim Surti 5 years RI Dismissed
& Ors. (A-66) with fine of
Rs. 25,000;
and 6 years
RI with fine
of Rs. 25000/-
Faki Ali Faki Ahmed 5 years RI Dismissed
Subedar (A-74) with fine of
Rs. 25,000;
and 6 years
RI with fine
of Rs.25,000/-
Janardhan Pandurang 6 years RI Dismissed
Gambas (A-81) with fine of
Rs.50,000;
and 3 years
RI with fine
of Rs.25,000/-
Sayed @ Mujju Ismail Ibrahim 5 years RI Dismissed
Kadri (A-104) with fine of
Rs.10,000/-
Srikrishna Yeshwant 6 years RI
Pashilkar (A-110) with fine of
Rs. 25,000/-
401 of 2011 Acquitted from Dismissed
(State appeal) the charge of
(A-74) larger
conspiracy
595 of 2011 Acquitted from Dismissed
(State appeals) the charge of
(A-66) larger cons- piracy
14. 171 of 2008 Ashok Narayan Muneshwar Both – 6 years Dismissed
and 172 of 2008 (A-70) Arun Pandari Nath RI with fine of
Madhukar Mahadik (A- 99) Rs.25,000;
403 of 2011 Acquitted for larger conspiracy Dismissed (State appeal)
15. 1630 of 2007 and Liyakat Ali Habib Khan (A-85) 5 years RI Dismissed with fine of Rs. 25,000/-;
1029 of 2012 Acquitted for Dismissed (State appeal) larger conspiracy
16. 207 of 2008 Mujib Sharif Parkar (A-131) 5 years RI Dismissed with fine of AND Rs. 25,000/-
415 of 2011 Acquitted for Dismissed (State appeal) larger conspiracy
17. 2173 of 2010 Mohammed Sultan Sayyed 7 years RI Dismissed
(A-90) with fine
of Rs. 1 lakh
18. 1632 of 2007 Ranjit Kumar Singh (A-102) 9 years RI Dismissed
with fine of
Rs. 3 lakhs
19. 271 of 2008 Sudhanwa Sadashiv 8 years RI Dismissed
Talavdekar (A-113) with fine of
Rs. 2 lakhs
20. 598 of 2011 Jayawant Keshav Acquitted for Dismissed
(State appeal) Gaurav (A-82) larger
conspiracy
Mohd. Sultan Sayyad
(A-90)
Ranjitkumar Singh
Baleshwar Prasad
(A-102)
Sudhanwa Sadashiv
Talwadekar (A-113)
21. 1439 of 2007 Khalil Ahmed Sayed Ali 10 years RI Dismissed
Nazir (A-42) with fine of
Rs.50,000/-;
10 years RI
with fine of
Rs.25,000/-;
AND and 10 years
RI with fine
of Rs. 50,000/-
1035 of 2012 Acquitted for Dismissed
(State appeal) larger
conspiracy
22. 203 of 2008 Shahnawaz Hajwani (A-106) and Dismissed
(A-106), Sikkandar Issaq (A-111) –
AND Hajwani (A-111) and 5 years RI
Issaq Mohammed with fine of
Hajwane (A-79) Rs. 10,000/-
(A-79) –
7 years RI
with fine of Rs. 25,000/-
396 of 2011 Acquitted for Dismissed
(State appeal) larger
(A-106 & conspiracy
A-111)
414 of 2011 Issaq Mohd. Hajwane Acquitted for Allowed
(State appeal) larger and
(A-79) conspiracy awarded life impriso- nment
23. 1423 of 2007 AND Shah Nawaz Khan (A-128) 10 years RI Dismissed with fine of
Rs. 25,000/-
1032 of 2012 Acquitted for Dismissed (State appeal) larger conspiracy
These are cross appeals filed by the accused as well as by the State. Appeals filed by the accused are dismissed, while the appeals filed by the State being Criminal Appeal Nos. 398 of 2011 against Uttam Shantaram Potdar (A-30), and Criminal Appeal No. 414 of 2011 against Issaq Mohd. Hajwane (A-79) are allowed. A-30 and A-79 are awarded life imprisonment. They are directed to surrender within four weeks from today, failing which the learned Designated Court, TADA shall take them into custody and send them to jail to serve out the remaining part of their sentences, as have been awarded by the Designated Court.
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