Smt. Vimal Thapa W/o Late Somnath Kakaram Thapa (A-112) Vs. The State of Maharashtra
EmailAppeal: Criminal Appeal No. 1224 of 2007
Petitioner: Smt. Vimal Thapa W/o Late Somnath Kakaram Thapa (A-112)
Respondent: The State of Maharashtra
Apeal: Criminal Appeal No. 1224 of 2007
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 S.K Thapa (A112) [Died during pendency of appeal] Conspiracy, murder, causing injury and other charges Evidence Appreciation Accused, an additional collector of customs Posted at Bombay Met with accused persons Allowed smuggling activities subject to giving some cases of seized goods of smuggling Confessional statements of Md. Kasam (A136), Md. Sultan (A90) corroborating Further corroboration by PWs Although laid in ambush for Tiger Memon at two places, same called off as none appeared No further instructions received from him Subsequently informed custom officials that Tiger would be coming with silver with body guards fully armed Watch called off at midnight Also misled the department. Held that charges against him are proved and he was rightly convicted.
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 S.K Thapa (A112) [Died during pendency of appeal] Conspiracy, murder, causing injury and other charges Evidence Appreciation Accused, an additional collector of customs Posted at Bombay Met with accused persons Allowed smuggling activities subject to giving some cases of seized goods of smuggling Confessional statements of Md. Kasam (A136), Md. Sultan (A90) corroborating Further corroboration by PWs Although laid in ambush for Tiger Memon at two places, same called off as none appeared No further instructions received from him Subsequently informed custom officials that Tiger would be coming with silver with body guards fully armed Watch called off at midnight Also misled the department. Held that charges against him are proved and he was rightly convicted.
Held:
Upon perusal of the confession of A-136 it is clear that A-112 agreed to render help to Mohd. Dossa for the smuggling activities. (Para 97)
It has been contended on behalf of A-112 that the fact that A-112 met Mohd. Dossa has been held against him by the trial court, however, merely meeting with a smuggler is not sufficient since his job was to control smuggling and Customs Officers often mix with smugglers to make seizures or increase the number of their informants. It is also contended that there is no direct evidence that A-112 aided Mohd. Dossa or other smugglers. It is further contended that the confession of A-136 makes it clear that meeting of A-112 with Mohd. Dosa took place before the conspiracy started. (Para 98)
It has been established through the confession of A-136 that there was a meeting between A-136, Mohd. Dossa and Dawood Ibrahim, where they agreed to take revenge for the atrocities committed against the Muslims. A similar meeting of Tiger Memon with Dawood Ibrahim and A-14 has also been proved through the confession of A-14. The confession of A-136 also establishes that arms and ammunitions were sent by Mustafa Dosa, who was the brother of Mohd. Dosa, for which A-134 was instructed by Mohd. Dosa to make arrangements. Apart from the confession of A-136 which indicates the link between Mohd. Dosa and A-112, it has also emerged that A-112 was acquainted with Tiger Memon. (Para 100)
A-112 had specific information that contraband was being smuggled into India by Tiger Memon and will be transported in a Truck or Tempo and that Tiger Memon will accompany the same and will be seated next to the driver and body guards will sit in the rear side armed with guns in ready to shoot position. (Para 103)
A-112 was aware of even minute details of travel of Tiger Memon with contraband. (Para 104)
The evidence of PW-99 establishes that the setting up of the ambush at the place of choice of A-112 was done deliberately by him. A-112 told his subordinates that he has specific information about the particular route and time of landing. A-112 also told them about Tiger Memon. A-112 further told them that he has specific information that they will go through Purar Phata. A-112 called off the vigil at midnight and does not organize the same after 31st. Ex-facie it appears that it could have been an error of judgment of the officer. None of the information on record shows the smuggling of arms would be conducted by Tiger Memon; the said goods would be transported through Purar Phata; and it would be done only on 30th and 31st night. (Para 108)
From the topography, it is clear that the ambush could have been kept at the junction as suggested by PW-99 which could have covered both the routes to Bombay. The materials clearly show that A-112 knowingly directed Nakabandi at Purar Phata and Behar Phata which left Sai-Morba Road route open for the smugglers to travel safely. (Para 109.1)
A-112 was duly informed by his superior that they have intelligence that ISI may send weapons along with silver or gold. (Para 111)
A perusal of deposition of PW-470 establishes that he asked A-112 to ask local officers to keep track of the said information and further he had issued a letter being Exhibit No. 1536 informing Mr. R.K. Singh (A-102) about landing of large quantity of automatic weapons in next 15-30 days. This letter was copied to A-112 also. (Para 112.1)
In spite of clear information that large quantity of automatic weapons will land in next 15 days, A-112 only kept ambush for 2 days and that too at wrong places and also spread a rumour that the place was appropriate, since he has a specific information. (Para 114)
A-112 alerted the customs officials at Bankot and Alibaug also whereas the information received was for landing at Mhasla only. (Para 115.1)
Specific information that the landing was to take place at Mhasla was distorted as well as converted into a vague message that something is happening in the Alibaug division which is a very big division. In view of the specific information given by a senior officer, the message circulated by A-112 about Bankot was completely misleading since Bankot is about 45 kms. from Mhasla. (Para 116.1)
The conduct of A-112 has to be considered in the light of the letter dated 25.01.1993 proved by PW-470. It may also be considered that the second landing could have been obstructed, if immediate action on the said letter was taken. Even the said arms and ammunitions which landed on 03.02.1993 could have been traced, if the said information was shared with the Customs Department as well as the Police. The appellant not only avoided alerting the Department, but also did not share the said piece of information till 25.03.1993 with the Department. (Para 118)
As per the letter issued by PW-470, the information was specific that automatic weapons were to land in next 15-20 days near Bombay. In spite of this clear information, A-112 only kept ambush for two days and told the officers on duty that he will issue directions, if further ambush is required. A-112 deliberately did not keep a vigil at the required place and even after the information the chemical had landed and he did not take any steps to further pass on the information until 25.03.1993. It may also be seen in the light of his conduct of diverting attention of the Department from Mhasla to Bankot despite there being specific information from a senior officer of landing on 1st/2nd of February. (Para 119)
The prosecution has established the guilt against the appellant and the Designated Court has rightly convicted him and sentenced him. (Para 123)
JUDGEMENT:
JUDGEMENT
90. Mr. Jaspal Singh, learned counsel appeared for the appellant, who is wife of A-112 and Mr. Mukul Gupta learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
91. Late Shri S.K. Thapa Accused No. 112 died during the pendency of this appeal because of lungs cancer. His widow has stepped in and is pursuing this appeal. The above said appeal is directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 20.07.2007 respectively, whereby A-112 (husband of the appellant herein) was 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.
92. Late Shri S.K. Thapa belonged to the 1972 batch of Indian Custom Excise Service. In the year 1993, he was posted as Additional Collector of Marine and Preventive Wing of Customs, Collectorate at Bombay. The other wing of the Collectorate was Rummaging and Intelligence and at the relevant time, Shri M.N. Dholphode (PW-171) was the Additional Collector and the Customs (Preventive) Collectorate was headed by Shri S.K. Bhardwaj (PW- 470).
Charges:
93. A common charge of conspiracy was framed against all the co-conspirators including A-112. 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.
93.1 In addition to the above-said principal charge of conspiracy, A-112 was also charged on the following counts:
In addition, to Charge First, you accused, Somnath Kakaram Thapa is also charged for having committed the following offences in pursuance to the Criminal Conspiracy described in Charge First: –
At head Secondly; That you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period from January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and ‘knowingly facilitated the commission of terrorists’ acts and acts preparatory to terrorists’ act, i.e., bomb blast and such other acts which were committed in Bombay and its suburbs on 12.03.1993 by intentionally aiding, and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunitions and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohammed Dossa, Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non- interference in spite of the fact that you had specific information and knowledge that arms, ammunitions and explosives were being smuggled into the country by terrorists and as Additional Collector of Customs, Preventive, you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (P) Act,1987 and within my cognizance.
94. The charges mentioned above were proved against A-112 and he had been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) A-112 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. 1,00,000/-, in default, to further undergo RI for 3 years. (charge firstly)
ii) A-112 has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge secondly)
Evidence
95. The evidence against A-112 is in the form of:-
(i) confessions made by other co-conspirators; (co-accused);
(ii) testimony of prosecution witnesses; and
(iii) documentary evidence.
96. It is brought to our notice that A-112 was one of the two Additional Collectors who were posted at Bombay. He was Additional Collector (Marine and Preventive) Wing and 8 Assistant Collectors were reporting to him including Shri R.K. Singh (A-102) who was Assistant Collector for Alibaug Division.
Confessional Statements of co-accused:
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
97. Confessional statement of A-136 under Section 15 of TADA has been recorded on 09.11.1999 (15:40 hrs.) and 10.11.1999 (09:00 hrs.) by Shri O.P. Chhatwal (PW-684), the then S.P., CBI-STF, New Delhi. A-136 was working as a driver for Mohd. Dossa (AA). A brief summary of his confession with regard to A-112 is reproduced hereunder:
(i) About 6-8 months prior to the blasts, a meeting was held between Mohd. Dossa and the Collector Thapa Saheb (A-112) in President Hotel which was organized by Customs Officer Iqbal Singh.
(ii) A-112 went to the Hotel with Iqbal Singh.
(iii) A-112 told Mohd. Dossa that he can continue with his smuggling activities but for that he has to give some cases of seized goods of smuggling.
(iv) On 09.01.1993, arms were unloaded at Dighi Jetty.
97.1 Upon perusal of the confession of A-136 it is clear that A-112 agreed to render help to Mohd. Dossa for the smuggling activities.
98. It has been contended by Mr. Jaspal Singh on behalf of A-112 that the fact that A-112 met Mohd. Dossa has been held against him by the trial court, however, merely meeting with a smuggler is not sufficient since his job was to control smuggling and Customs Officers often mix with smugglers to make seizures or increase the number of their informants. It is also contended that there is no direct evidence that A-112 aided Mohd. Dosa or other smugglers. It is further contended by Mr. Jaspal Singh that the confession of A-136 makes it clear that meeting of A-112 with Mohd. Dosa took place before the conspiracy started.
99. In an answer, the counsel for the CBI submitted that although ex-facie it appears that the case against A-112 is of dereliction of duty and negligence, a closer scrutiny of the entire evidence on record would show that the appellant had a connection and understanding with the smugglers in order to facilitate a safe passage to them. It is further submitted that at the same time A-112 has created the record to show that he has done possibly everything in his official capacity to prevent the smuggling of arms and ammunitions.
100. It has been established through the confession of A-136 that there was a meeting between A-136, Mohd. Dossa and Dawood Ibrahim, where they agreed to take revenge for the atrocities committed against the Muslims. A similar meeting of Tiger Memon with Dawood Ibrahim and A-14 has also been proved through the confession of A-14. The confession of A-136 also establishes that arms and ammunitions were sent by Mustafa Dosa, who was the brother of Mohd. Dossa, for which A-134 was instructed by Mohd. Dossa to make arrangements. Apart from the confession of A-136 which indicates the link between Mohd. Dossa and A-112, it has also emerged that A-112 was acquainted with Tiger Memon.
Confessional Statement of Mohmed Sultan Sayyed (A-90)
100.1 Confessional statement of A-90 under Section 15 of TADA has been recorded on 29.04.1993 and 30.04.1993 (14:30 hrs.) by Shri C. Prabhakar (PW-186), the then Superintendent of Police, Thane Rural, Camp Alibaug (Raigad). A-90 was working as a Superintendent, Marine and Preventive Wing of Customs, Alibaug Circle. A-90 was working under the orders of Shri R.K. Singh, (A-102), Assistant Collector. In his confessional statement A-90 stated that A-102 had told him that A-112 had asked him (A-102) to meet Dawood Phanse (A-14) who was a landing agent.
101. It was contended by Mr. Jaspal Singh on behalf of A-112 that the confessional statements of the co-accused relied upon by the prosecution were recorded by a police officer and it is not safe to base the conviction on the said confessions under Section 15 of TADA. This aspect has been elaborately dealt with in the appeal of A-1. In view of our conclusion therein, there is no need to discuss the same once again.
Deposition of Prosecution Witnesses:
102. Apart from the aforesaid evidence, the involvement and the role of A-112 in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Akbarkhan Munawarkhan Pathan (PW-98)
102.1. PW-98 was an Inspector posted in the Night Mobile Patrolling Unit of Marine and Prevention Wing of Customs Department. From his deposition, the following facts emerge:
(i) He knew A-112 as he was his superior officer in the year 1993.
(ii) PW-98 identified A-112 in the court during the dock proceedings.
(iii) On 30.01.1993, A-112 gave instructions to other officers to assemble in the Thane office.
(iv) After the meeting, they all first went to Indraprastha Hotel at Nagothane and then reached Purar Phata in Raigad district by sunset following A-112.
(v) PW-98 deposed that A-112 gave officers their positions at the spot.
(vi) PW-98 deposed that A-112 told the officers that contraband was to be smuggled into India by Tiger Memon and he will be coming in a commander jeep and would be sitting next to the driver with his body guards sitting at the rear side, fully armed and in a ready position to fire. A-112 also told the officers that a truck or tempo will be carrying the contraband following the jeep.
(vii) PW-98 deposed that A-112 told that they have to intercept the convoy and affect the seizure.
(viii) PW-98 deposed that they took positions and waited at the spot for about 5 hours upto midnight and thereafter A-112 called them up and asked to be in touch with him in Bombay office. Thereafter, the operation was called off.
(ix) On 31.01.1993, the officers along with A-112 went to Dehan Phata where he gave the same instructions as given at Purar Phata and surveillance was kept for the same person (Tiger Memon). After waiting for six hours, A-112 called off the ambush as no convoy arrived carrying contraband.
(x) Thereafter, no instructions were received from A-112 after 31.01.1993.
(xi) PW-98 also proved Exh. Nos. 530 and 531, Reports prepared by him about the operations at Purar Phata and Dehan Phata in the night of 30/31.01.1993 respectively.
(xii) PW-98 stated that there was discussion between Mr. Madhav Sriram Agarkar (PW-99) (Senior most Inspector in the raiding party) and A-112 who made a suggestion that we should maintain the watch near the junction.
(xiii) PW-98 deposed that he does not remember the junction today but stated that A-112 told Mr. Agarkar that the said place was the best place to keep the watch and as per the information, the said place was the perfect place for interception.
(xiv) On 31st January, in the night around 10:30 p.m., A-112 had sent a party to Shekhadi to see if there was any activity there. PW-98 and Mr. Mhatre were also there in that party.
103. Upon perusal of the aforesaid deposition, it is clear that A-112 had specific information that contraband was being smuggled into India by Tiger Memon and will be transported in a Truck or Tempo and that Tiger Memon will accompany the same and will be seated next to the driver and body guards will sit in the rear side armed with guns in ready to shoot position.
104. It is also clear that the above fact shows that A-112 was aware of even minute details of travel of Tiger Memon with contraband. It is further submitted that it is also clear that A-112 also did not pay any heed to the suggestion of PW-99 who was a senior Inspector and suggested a better place for watch.
Deposition of Madhav Sriram Agarkar (PW-99)
105. PW-99 was an Inspector of Customs (Marine and Preventive) Wing. From his testimony, the following facts emerge:
(i) A-112 called him on 30.01.1993 and told him to reach Thane office.
(ii) He was further instructed to arrange for a Tempo and a Maruti Van.
(iii) A-112 told him that he had specific information about the landing of contraband silver on a particular route at a particular place.
(iv) A-112 then asked PW-99 to suggest the best place for keeping a watch. As the information had revealed that the contraband silver was to be landed somewhere at Shekhadi and Shrivardhan area and the same was to be transported via Mhasla-Goregaon road, PW-99 suggested him two spots for keeping a watch at Purar Phata and Dehan Phata
(v) A-112 asked all of them to leave the Thane Office and to proceed towards Nagothane. He also accompanied them.
(vi) All the officers including A-112 left Nagothane at about 5.00 p.m. and went to Purar Phata and reached there by sunset.
(vii) After reaching Purar Phata, A-112 called the other Inspectors who were accompanying the squad and disclosed the information that the contraband silver would be transported in transport vehicles such as Truck or Tempo and that Tiger Memon would be piloting the said transport vehicles in the open Commander Jeep and he would be sitting beside the driver with three to four bodyguards sitting behind him and all of them would be fully armed.
(viii) Before taking positions at Purar Phata, PW-99 told A-112 that junction of Mhasla- Saimorbaugh- Mangaon Road and Mhasla- Goregaon Road would be better for keeping surveillance and suggested the said spot in order to cover both the said routes coming from Mhasla to Bombay.
(ix) A-112 responded and said that his information was specific that goods will go through Purar Phata Road.
(x) At about midnight, A-112 called off the watch/operation
(xi) Again, they went to Dehan Phata where A-112 told them that the previous day information was also for Dehan Phata.
(xii) Thereafter, the operation was called off at midnight by A-112 who also told that he will give information if watch has to be continued on the next day. PW-99 deposed that no information was received from A-112.
(xiii) The witness also proved the reports regarding operation on 30th and 31st January 1993, bearing Exh. Nos. 530 and 531 which were prepared by PW-98.
(xiv) He identified A-112 before the court.
(xv) In the second week of February 1993, A-112 had asked PW-99 to find out whether any chemical in liquid form, packed in barrels, had been landed by Tiger Memon at Shekhadi.
Hence, the deposition of PW-99 corroborates and supports the deposition of PW-98.
106. Mr. Jaspal Singh, learned counsel for the defence contended that A-112 acted immediately after he received the information about landing/smuggling of arms and set up an ambush. The fact that ambush could have been set up at a better location (i.e., at the intersection of two roads going to Bombay) with benefit of hindsight cannot be held against A-112.
107. It is further contended that no evidence establishes that A-112 deliberately set up the ambush at one road so as to permit the vehicles carrying arms to take the other road to Bombay.
108. The above submissions are unacceptable. The evidence of PW-99 establishes that the setting up of the ambush at the place of choice of A-112 was done deliberately by him. A-112 told his subordinates that he has specific information about the particular route and time of landing. A-112 also told them about Tiger Memon. A-112 further told them that he has specific information that they will go through Purar Phata. A-112 called off the vigil at midnight and does not organize the same after 31st. Ex-facie it appears that it could have been an error of judgment of the officer. None of the information on record shows the smuggling of arms would be conducted by Tiger Memon; the said goods would be transported through Purar Phata; and it would be done only on 30th and 31st night.
109. From the topography of the area, it is also clear that the vigil at Purar Phata was kept deliberately to provide a safe passage to the smugglers:
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109.1 As rightly pointed out by the prosecution, from the aforesaid topography, it is clear that the ambush could have been kept at the junction as suggested by PW-99 which could have covered both the routes to Bombay. The materials clearly show that A-112 knowingly directed Nakabandi at Purar Phata and Behar Phata which left Sai-Morba Road route open for the smugglers to travel safely.
110. It is also brought to our notice that A-112 also spread rumour of a specific information when there was none. It is also not clear as to why the vigil was called off at midnight when as a matter of practice smuggling takes place after midnight. It is also not clear why no vigil was kept after 31st night of January, 1993. All the aforesaid was justified on the basis of non-existence of specific information.
111. The above said conduct of A-112 has to be considered in the light of the fact that A-112 was duly informed by his superior that they have intelligence that ISI may send weapons along with silver or gold. The said information requested the Officer to be alert. It is also to be seen that the information of the above said landing was the first such information after the alert notice of 25.01.1993. The said information, amongst others, has been proved by PW-470.
Deposition of SR Bharadwaj (PW-470)
112. PW-470 was working as Collector of Customs (Preventive) at Bombay. From his testimony, the following facts emerge:
(i) He was the senior officer and A-112 was working under him.
(ii) On 24/25.01.1993, he received information from DRI that some ISI syndicate located in Middle-East may try to smuggle contraband items into India. He told A-112 and A-102 about this information.
(iii) A-112 told him in the end of January that there was no landing of contraband since either the information was leaked or the movement of customs officials was known. PW-470 told A-112 to ask the local officers to keep the track of the said information.
112.1 A perusal of deposition of PW-470 establishes that he asked A-112 to ask local officers to keep track of the said information and further he had issued a letter being Exhibit No. 1536 informing Mr. R.K. Singh (A-102) about landing of large quantity of automatic weapons in next 15-30 days. This letter was copied to A-112 also. The evidence of PW-470 has to be considered in the light of the conduct of A-112, emerging from the evidence of PW-98 and PW-99.
Deposition of Bhaskar Krishanji Naik (PW-168)
112.2 PW-168 was working as a Superintendent, Customs (Marine and Preventive) Wing since 28.12.1992, in Central Intelligence Unit (C.I.U.) at Everest House, Bombay. He identified in the Court the entry in the Inward Register marked as X-181 pertaining to the confidential letter written by PW-470 to R.K. Singh and which was also forwarded to A-112 stating that large quantity of automatic weapons along with contraband items like gold and silver were likely to land around Bombay in the next 15-20 days, and therefore, necessary action should be taken.
113. The deposition of this witness proves that A-112 had been informed well in advance that landing of arms was going to take place and it could happen anytime within 15-20 days from the time the letter was written, i.e., 25.01.1993.
114. In spite of clear information that large quantity of automatic weapons will land in next 15 days, A-112 only kept ambush for 2 days and that too at wrong places and also spread a rumour that the place was appropriate, since he has a specific information.
Deposition of Vishwambhal M. Doiphode (PW-171)
115. PW-171 was Additional Collector of Customs (Rummaging and Intelligence) Bombay. From his testimony, the following facts emerge:
(i) He knew A-112 as he was also working under the Collector of Custom (Preventive), Shri S.K. Bharadwaj (PW-470).
(ii) The word Panther is used to denote Additional Collector.
(iii) On the night of 01.02.1993, he received a call at about 2 a.m. from his sources informing him that landing of contraband was taking place at Mhasala. PW-171 immediately told the same to A-112.
(iv) A-112, thereafter, gave an alert message to Mhasla, Bankot and Alibaug divisions.
115.1 It is pointed out by the prosecution that deposition of PW-171 clearly establishes that A-112 alerted the customs officials at Bankot and Alibaug also whereas the information received was for landing at Mhasla only.
116. It is argued on the side of the CBI that the paper work of giving alert was done by A-112 since the message was given by an Additional Collector and something was to be shown to have been done. Exhibit 2594 – X-711 is the VHF Radio logbook. The relevant extract of message reads as under:
‘Something has happened at Bankot therefore maximum alert to be kept at D-31 division starting immediately’
116.1 It shows that A-112 had asked to keep a strict vigil at Bankot in the face of clear and specific information that the landing was to take place at Mhasla. The said specific information was distorted as well as converted into a vague message that something is happening in the Alibaug division which is a very big division. In view of the specific information given by a senior officer, the message circulated by A-112 about Bankot was completely misleading since Bankot is about 45 kms. from Mhasla.
Deposition of Liladhar Dattaray Mhatre (PW-172)
117. PW-172 was an Officer in Central Excise Department in Bombay. From his testimony, the following facts emerge:
(i) He received information on 29.01.1993 from his sources that landing of silver was to take place at Shekhadi on 29/31.01.1993.
(ii) He immediately told A-112 about this information.
(iii) PW-172 received information after about 7-8 days (around 5th or 6th February) that instead of silver, landing of some chemical had taken place on 03.02.1993 at Shekhadi. He told A-112 about this information and A-112 said kya ho sakta hai? (what can be done) and in cross PW-172 says Acha thik hai, main dekhta huin kya hoga (let me see what can be done).
118. The conduct of A-112 has to be considered in the light of the letter dated 25.01.1993 proved by PW-470. It may also be considered that the second landing could have been obstructed, if immediate action on the said letter was taken. Even the said arms and ammunitions which landed on 03.02.1993 could have been traced, if the said information was shared with the Customs Department as well as the Police. The appellant not only avoided alerting the Department, but also did not share the said piece of information till 25.03.1993 with the Department.
119. It has been contended by learned senior counsel for A-112 that he was surprised to hear about the landing of chemicals instead of silver and thus it can be inferred that A-112 was not aware of the landing of RDX at Shekhadi. As per the letter issued by PW-470, the information was specific that automatic weapons were to land in next 15-20 days near Bombay. In spite of this clear information, A-112 only kept ambush for two days and told the officers on duty that he will issue directions, if further ambush is required. We are also satisfied that A-112 deliberately did not keep a vigil at the required place and even after the information the chemical had landed and he did not take any steps to further pass on the information until 25.03.1993. It may also be seen in the light of his conduct of diverting attention of the Department from Mhasla to Bankot despite there being specific information from a senior officer of landing on 1st/2nd of February.
Deposition of Vivek Vishwanath Kadam (PW-163)
120. PW-163 was Inspector of Customs, Marine Preventive. From his testimony, the following fact emerges:
(i) A-112, in a meeting of Customs officials told S.K. Bharadwaj (PW-470) and other officers present that 60 drums of liquid chemicals had landed somewhere at the coast. The meeting took place on 25.03.1993.
(i) A-112 did not tell in the meeting that he had received the information of landing that took place on 03.02.1993 on the next day itself.
(ii) A-112 did not disclose that he had information about the landing any time before 25.03.1993.
120.1 The above evidence proves that A-112 had information about the landing that took place on 03.02.1993; however, he chose not to share it with the other officers.
Deposition of Prabhakar Natarajan (PW-152)
120.2 PW-152 was an Inspector of Customs at Shrivardhan Post. From his testimony, the following facts emerge:
(i) On 25.03.1993, a meeting was called by the Collector of Customs at the Customs Office at Murud where A-112 remarked that a landing of chemicals might have taken place at Shekhadi during the first week of February.
(ii) Until the said date, i.e. 25.03.1993, S.N. Thapa had not taken any action regarding any landing of RDX which was said to have taken place at Shekhadi on 03.02.1993.
(iii) A-112 did not tell the other officers in the meeting that he had information about the landing.
Deposition of Saryuprasad Ramnivaj Maurya (PW-100)
120.3 PW-100 was working in the Customs Office, Shrivardhan as an O.T.C. (Operator Tele Communication). His duty was to send and receive wireless messages. He deposed as under:-
(i) He deposed that the record of message received and sent on wireless is maintained by recording the same in VHF/Wireless log book.
(ii) He was shown the VHF radio log book for a period from 11.11.1992 to 06.04.1993;
(iii) He proved Exh. No. 534 (Box No. 17) in court which is the VHF Radio log for 02.02.1993. This message was received from Bombay by Additional Collector of Customs. A-112 was the then Additional Collector of Customs in Bombay. The entry of 02.02.1993 was marked as Exh. No. 534A.
(iv) Panther word is wireless code for Additional Collector (i.e. A-112).
121. In view of the above, the following facts emerge:
(i) A-112 was fully aware of the information that the weapons of mass destruction may be smuggled to India along with silver and gold;
(ii) He kept vigil at a place which leaves room for the smugglers to escape from another route to Bombay under the guise of specific information;
(iii) He failed to produce any such specific information ever;
(iv) A-112 told that he has specific information that Tiger Memon is going to come through that route in a particular manner;
(v) Actually, there was no specific information that the smuggler was Tiger Memon and that he was to pass through a particular route;
(vi) The onus was on the accused to prove his specific information for a particular course of conduct undertaken by him;
(vii) He also spread rumour of specific information to mislead and misguide the Department so as to help the smugglers;
(viii) He mis-directed the Department by distorting a specific message of landing at Mhasla to be something happening at Bankot about 45 kilometers away from Mahsala, particularly, when the said information came from a senior officer of the Department;
(ix) He failed to explain as to why he did that;
(x) He further failed to take account of what was done pursuant to the said information;
(xi) He did not do anything on specific information that along with Silver some chemicals have arrived at Shekhadi on 03.02.1993; and
(xii) Any timely action on the part of A-112 could have traced the smuggled goods. The said action could have prevented second landing that took place subsequently.
122. All the above said circumstances cumulatively establish the charges framed against A-112 at the trial. The said circumstances leave no room for any alternative hypothesis. We are also satisfied that pursuant to a conspiracy with Tiger Memon and his other co-conspirators, A-112 misused his official position in order to knowingly facilitate the terrorist act.
123. Under these circumstances, we are satisfied that the prosecution has established the guilt against the appellant and the Designated Court has rightly convicted him and sentenced him. Since he died during the pendency of this appeal, there cannot be any direction except confirming the decision of the Designated Court and clarifying the position. The appeal is disposed of accordingly.
90. Mr. Jaspal Singh, learned counsel appeared for the appellant, who is wife of A-112 and Mr. Mukul Gupta learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
91. Late Shri S.K. Thapa Accused No. 112 died during the pendency of this appeal because of lungs cancer. His widow has stepped in and is pursuing this appeal. The above said appeal is directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 20.07.2007 respectively, whereby A-112 (husband of the appellant herein) was 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.
92. Late Shri S.K. Thapa belonged to the 1972 batch of Indian Custom Excise Service. In the year 1993, he was posted as Additional Collector of Marine and Preventive Wing of Customs, Collectorate at Bombay. The other wing of the Collectorate was Rummaging and Intelligence and at the relevant time, Shri M.N. Dholphode (PW-171) was the Additional Collector and the Customs (Preventive) Collectorate was headed by Shri S.K. Bhardwaj (PW- 470).
Charges:
93. A common charge of conspiracy was framed against all the co-conspirators including A-112. 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.
93.1 In addition to the above-said principal charge of conspiracy, A-112 was also charged on the following counts:
In addition, to Charge First, you accused, Somnath Kakaram Thapa is also charged for having committed the following offences in pursuance to the Criminal Conspiracy described in Charge First: –
At head Secondly; That you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period from January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and ‘knowingly facilitated the commission of terrorists’ acts and acts preparatory to terrorists’ act, i.e., bomb blast and such other acts which were committed in Bombay and its suburbs on 12.03.1993 by intentionally aiding, and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunitions and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohammed Dossa, Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non- interference in spite of the fact that you had specific information and knowledge that arms, ammunitions and explosives were being smuggled into the country by terrorists and as Additional Collector of Customs, Preventive, you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (P) Act,1987 and within my cognizance.
94. The charges mentioned above were proved against A-112 and he had been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) A-112 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. 1,00,000/-, in default, to further undergo RI for 3 years. (charge firstly)
ii) A-112 has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 1,00,000/-, in default, to further undergo RI for 3 years. (charge secondly)
Evidence
95. The evidence against A-112 is in the form of:-
(i) confessions made by other co-conspirators; (co-accused);
(ii) testimony of prosecution witnesses; and
(iii) documentary evidence.
96. It is brought to our notice that A-112 was one of the two Additional Collectors who were posted at Bombay. He was Additional Collector (Marine and Preventive) Wing and 8 Assistant Collectors were reporting to him including Shri R.K. Singh (A-102) who was Assistant Collector for Alibaug Division.
Confessional Statements of co-accused:
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136)
97. Confessional statement of A-136 under Section 15 of TADA has been recorded on 09.11.1999 (15:40 hrs.) and 10.11.1999 (09:00 hrs.) by Shri O.P. Chhatwal (PW-684), the then S.P., CBI-STF, New Delhi. A-136 was working as a driver for Mohd. Dossa (AA). A brief summary of his confession with regard to A-112 is reproduced hereunder:
(i) About 6-8 months prior to the blasts, a meeting was held between Mohd. Dossa and the Collector Thapa Saheb (A-112) in President Hotel which was organized by Customs Officer Iqbal Singh.
(ii) A-112 went to the Hotel with Iqbal Singh.
(iii) A-112 told Mohd. Dossa that he can continue with his smuggling activities but for that he has to give some cases of seized goods of smuggling.
(iv) On 09.01.1993, arms were unloaded at Dighi Jetty.
97.1 Upon perusal of the confession of A-136 it is clear that A-112 agreed to render help to Mohd. Dossa for the smuggling activities.
98. It has been contended by Mr. Jaspal Singh on behalf of A-112 that the fact that A-112 met Mohd. Dossa has been held against him by the trial court, however, merely meeting with a smuggler is not sufficient since his job was to control smuggling and Customs Officers often mix with smugglers to make seizures or increase the number of their informants. It is also contended that there is no direct evidence that A-112 aided Mohd. Dosa or other smugglers. It is further contended by Mr. Jaspal Singh that the confession of A-136 makes it clear that meeting of A-112 with Mohd. Dosa took place before the conspiracy started.
99. In an answer, the counsel for the CBI submitted that although ex-facie it appears that the case against A-112 is of dereliction of duty and negligence, a closer scrutiny of the entire evidence on record would show that the appellant had a connection and understanding with the smugglers in order to facilitate a safe passage to them. It is further submitted that at the same time A-112 has created the record to show that he has done possibly everything in his official capacity to prevent the smuggling of arms and ammunitions.
100. It has been established through the confession of A-136 that there was a meeting between A-136, Mohd. Dossa and Dawood Ibrahim, where they agreed to take revenge for the atrocities committed against the Muslims. A similar meeting of Tiger Memon with Dawood Ibrahim and A-14 has also been proved through the confession of A-14. The confession of A-136 also establishes that arms and ammunitions were sent by Mustafa Dosa, who was the brother of Mohd. Dossa, for which A-134 was instructed by Mohd. Dossa to make arrangements. Apart from the confession of A-136 which indicates the link between Mohd. Dossa and A-112, it has also emerged that A-112 was acquainted with Tiger Memon.
Confessional Statement of Mohmed Sultan Sayyed (A-90)
100.1 Confessional statement of A-90 under Section 15 of TADA has been recorded on 29.04.1993 and 30.04.1993 (14:30 hrs.) by Shri C. Prabhakar (PW-186), the then Superintendent of Police, Thane Rural, Camp Alibaug (Raigad). A-90 was working as a Superintendent, Marine and Preventive Wing of Customs, Alibaug Circle. A-90 was working under the orders of Shri R.K. Singh, (A-102), Assistant Collector. In his confessional statement A-90 stated that A-102 had told him that A-112 had asked him (A-102) to meet Dawood Phanse (A-14) who was a landing agent.
101. It was contended by Mr. Jaspal Singh on behalf of A-112 that the confessional statements of the co-accused relied upon by the prosecution were recorded by a police officer and it is not safe to base the conviction on the said confessions under Section 15 of TADA. This aspect has been elaborately dealt with in the appeal of A-1. In view of our conclusion therein, there is no need to discuss the same once again.
Deposition of Prosecution Witnesses:
102. Apart from the aforesaid evidence, the involvement and the role of A-112 in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Akbarkhan Munawarkhan Pathan (PW-98)
102.1. PW-98 was an Inspector posted in the Night Mobile Patrolling Unit of Marine and Prevention Wing of Customs Department. From his deposition, the following facts emerge:
(i) He knew A-112 as he was his superior officer in the year 1993.
(ii) PW-98 identified A-112 in the court during the dock proceedings.
(iii) On 30.01.1993, A-112 gave instructions to other officers to assemble in the Thane office.
(iv) After the meeting, they all first went to Indraprastha Hotel at Nagothane and then reached Purar Phata in Raigad district by sunset following A-112.
(v) PW-98 deposed that A-112 gave officers their positions at the spot.
(vi) PW-98 deposed that A-112 told the officers that contraband was to be smuggled into India by Tiger Memon and he will be coming in a commander jeep and would be sitting next to the driver with his body guards sitting at the rear side, fully armed and in a ready position to fire. A-112 also told the officers that a truck or tempo will be carrying the contraband following the jeep.
(vii) PW-98 deposed that A-112 told that they have to intercept the convoy and affect the seizure.
(viii) PW-98 deposed that they took positions and waited at the spot for about 5 hours upto midnight and thereafter A-112 called them up and asked to be in touch with him in Bombay office. Thereafter, the operation was called off.
(ix) On 31.01.1993, the officers along with A-112 went to Dehan Phata where he gave the same instructions as given at Purar Phata and surveillance was kept for the same person (Tiger Memon). After waiting for six hours, A-112 called off the ambush as no convoy arrived carrying contraband.
(x) Thereafter, no instructions were received from A-112 after 31.01.1993.
(xi) PW-98 also proved Exh. Nos. 530 and 531, Reports prepared by him about the operations at Purar Phata and Dehan Phata in the night of 30/31.01.1993 respectively.
(xii) PW-98 stated that there was discussion between Mr. Madhav Sriram Agarkar (PW-99) (Senior most Inspector in the raiding party) and A-112 who made a suggestion that we should maintain the watch near the junction.
(xiii) PW-98 deposed that he does not remember the junction today but stated that A-112 told Mr. Agarkar that the said place was the best place to keep the watch and as per the information, the said place was the perfect place for interception.
(xiv) On 31st January, in the night around 10:30 p.m., A-112 had sent a party to Shekhadi to see if there was any activity there. PW-98 and Mr. Mhatre were also there in that party.
103. Upon perusal of the aforesaid deposition, it is clear that A-112 had specific information that contraband was being smuggled into India by Tiger Memon and will be transported in a Truck or Tempo and that Tiger Memon will accompany the same and will be seated next to the driver and body guards will sit in the rear side armed with guns in ready to shoot position.
104. It is also clear that the above fact shows that A-112 was aware of even minute details of travel of Tiger Memon with contraband. It is further submitted that it is also clear that A-112 also did not pay any heed to the suggestion of PW-99 who was a senior Inspector and suggested a better place for watch.
Deposition of Madhav Sriram Agarkar (PW-99)
105. PW-99 was an Inspector of Customs (Marine and Preventive) Wing. From his testimony, the following facts emerge:
(i) A-112 called him on 30.01.1993 and told him to reach Thane office.
(ii) He was further instructed to arrange for a Tempo and a Maruti Van.
(iii) A-112 told him that he had specific information about the landing of contraband silver on a particular route at a particular place.
(iv) A-112 then asked PW-99 to suggest the best place for keeping a watch. As the information had revealed that the contraband silver was to be landed somewhere at Shekhadi and Shrivardhan area and the same was to be transported via Mhasla-Goregaon road, PW-99 suggested him two spots for keeping a watch at Purar Phata and Dehan Phata
(v) A-112 asked all of them to leave the Thane Office and to proceed towards Nagothane. He also accompanied them.
(vi) All the officers including A-112 left Nagothane at about 5.00 p.m. and went to Purar Phata and reached there by sunset.
(vii) After reaching Purar Phata, A-112 called the other Inspectors who were accompanying the squad and disclosed the information that the contraband silver would be transported in transport vehicles such as Truck or Tempo and that Tiger Memon would be piloting the said transport vehicles in the open Commander Jeep and he would be sitting beside the driver with three to four bodyguards sitting behind him and all of them would be fully armed.
(viii) Before taking positions at Purar Phata, PW-99 told A-112 that junction of Mhasla- Saimorbaugh- Mangaon Road and Mhasla- Goregaon Road would be better for keeping surveillance and suggested the said spot in order to cover both the said routes coming from Mhasla to Bombay.
(ix) A-112 responded and said that his information was specific that goods will go through Purar Phata Road.
(x) At about midnight, A-112 called off the watch/operation
(xi) Again, they went to Dehan Phata where A-112 told them that the previous day information was also for Dehan Phata.
(xii) Thereafter, the operation was called off at midnight by A-112 who also told that he will give information if watch has to be continued on the next day. PW-99 deposed that no information was received from A-112.
(xiii) The witness also proved the reports regarding operation on 30th and 31st January 1993, bearing Exh. Nos. 530 and 531 which were prepared by PW-98.
(xiv) He identified A-112 before the court.
(xv) In the second week of February 1993, A-112 had asked PW-99 to find out whether any chemical in liquid form, packed in barrels, had been landed by Tiger Memon at Shekhadi.
Hence, the deposition of PW-99 corroborates and supports the deposition of PW-98.
106. Mr. Jaspal Singh, learned counsel for the defence contended that A-112 acted immediately after he received the information about landing/smuggling of arms and set up an ambush. The fact that ambush could have been set up at a better location (i.e., at the intersection of two roads going to Bombay) with benefit of hindsight cannot be held against A-112.
107. It is further contended that no evidence establishes that A-112 deliberately set up the ambush at one road so as to permit the vehicles carrying arms to take the other road to Bombay.
108. The above submissions are unacceptable. The evidence of PW-99 establishes that the setting up of the ambush at the place of choice of A-112 was done deliberately by him. A-112 told his subordinates that he has specific information about the particular route and time of landing. A-112 also told them about Tiger Memon. A-112 further told them that he has specific information that they will go through Purar Phata. A-112 called off the vigil at midnight and does not organize the same after 31st. Ex-facie it appears that it could have been an error of judgment of the officer. None of the information on record shows the smuggling of arms would be conducted by Tiger Memon; the said goods would be transported through Purar Phata; and it would be done only on 30th and 31st night.
109. From the topography of the area, it is also clear that the vigil at Purar Phata was kept deliberately to provide a safe passage to the smugglers:
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109.1 As rightly pointed out by the prosecution, from the aforesaid topography, it is clear that the ambush could have been kept at the junction as suggested by PW-99 which could have covered both the routes to Bombay. The materials clearly show that A-112 knowingly directed Nakabandi at Purar Phata and Behar Phata which left Sai-Morba Road route open for the smugglers to travel safely.
110. It is also brought to our notice that A-112 also spread rumour of a specific information when there was none. It is also not clear as to why the vigil was called off at midnight when as a matter of practice smuggling takes place after midnight. It is also not clear why no vigil was kept after 31st night of January, 1993. All the aforesaid was justified on the basis of non-existence of specific information.
111. The above said conduct of A-112 has to be considered in the light of the fact that A-112 was duly informed by his superior that they have intelligence that ISI may send weapons along with silver or gold. The said information requested the Officer to be alert. It is also to be seen that the information of the above said landing was the first such information after the alert notice of 25.01.1993. The said information, amongst others, has been proved by PW-470.
Deposition of SR Bharadwaj (PW-470)
112. PW-470 was working as Collector of Customs (Preventive) at Bombay. From his testimony, the following facts emerge:
(i) He was the senior officer and A-112 was working under him.
(ii) On 24/25.01.1993, he received information from DRI that some ISI syndicate located in Middle-East may try to smuggle contraband items into India. He told A-112 and A-102 about this information.
(iii) A-112 told him in the end of January that there was no landing of contraband since either the information was leaked or the movement of customs officials was known. PW-470 told A-112 to ask the local officers to keep the track of the said information.
112.1 A perusal of deposition of PW-470 establishes that he asked A-112 to ask local officers to keep track of the said information and further he had issued a letter being Exhibit No. 1536 informing Mr. R.K. Singh (A-102) about landing of large quantity of automatic weapons in next 15-30 days. This letter was copied to A-112 also. The evidence of PW-470 has to be considered in the light of the conduct of A-112, emerging from the evidence of PW-98 and PW-99.
Deposition of Bhaskar Krishanji Naik (PW-168)
112.2 PW-168 was working as a Superintendent, Customs (Marine and Preventive) Wing since 28.12.1992, in Central Intelligence Unit (C.I.U.) at Everest House, Bombay. He identified in the Court the entry in the Inward Register marked as X-181 pertaining to the confidential letter written by PW-470 to R.K. Singh and which was also forwarded to A-112 stating that large quantity of automatic weapons along with contraband items like gold and silver were likely to land around Bombay in the next 15-20 days, and therefore, necessary action should be taken.
113. The deposition of this witness proves that A-112 had been informed well in advance that landing of arms was going to take place and it could happen anytime within 15-20 days from the time the letter was written, i.e., 25.01.1993.
114. In spite of clear information that large quantity of automatic weapons will land in next 15 days, A-112 only kept ambush for 2 days and that too at wrong places and also spread a rumour that the place was appropriate, since he has a specific information.
Deposition of Vishwambhal M. Doiphode (PW-171)
115. PW-171 was Additional Collector of Customs (Rummaging and Intelligence) Bombay. From his testimony, the following facts emerge:
(i) He knew A-112 as he was also working under the Collector of Custom (Preventive), Shri S.K. Bharadwaj (PW-470).
(ii) The word Panther is used to denote Additional Collector.
(iii) On the night of 01.02.1993, he received a call at about 2 a.m. from his sources informing him that landing of contraband was taking place at Mhasala. PW-171 immediately told the same to A-112.
(iv) A-112, thereafter, gave an alert message to Mhasla, Bankot and Alibaug divisions.
115.1 It is pointed out by the prosecution that deposition of PW-171 clearly establishes that A-112 alerted the customs officials at Bankot and Alibaug also whereas the information received was for landing at Mhasla only.
116. It is argued on the side of the CBI that the paper work of giving alert was done by A-112 since the message was given by an Additional Collector and something was to be shown to have been done. Exhibit 2594 – X-711 is the VHF Radio logbook. The relevant extract of message reads as under:
‘Something has happened at Bankot therefore maximum alert to be kept at D-31 division starting immediately’
116.1 It shows that A-112 had asked to keep a strict vigil at Bankot in the face of clear and specific information that the landing was to take place at Mhasla. The said specific information was distorted as well as converted into a vague message that something is happening in the Alibaug division which is a very big division. In view of the specific information given by a senior officer, the message circulated by A-112 about Bankot was completely misleading since Bankot is about 45 kms. from Mhasla.
Deposition of Liladhar Dattaray Mhatre (PW-172)
117. PW-172 was an Officer in Central Excise Department in Bombay. From his testimony, the following facts emerge:
(i) He received information on 29.01.1993 from his sources that landing of silver was to take place at Shekhadi on 29/31.01.1993.
(ii) He immediately told A-112 about this information.
(iii) PW-172 received information after about 7-8 days (around 5th or 6th February) that instead of silver, landing of some chemical had taken place on 03.02.1993 at Shekhadi. He told A-112 about this information and A-112 said kya ho sakta hai? (what can be done) and in cross PW-172 says Acha thik hai, main dekhta huin kya hoga (let me see what can be done).
118. The conduct of A-112 has to be considered in the light of the letter dated 25.01.1993 proved by PW-470. It may also be considered that the second landing could have been obstructed, if immediate action on the said letter was taken. Even the said arms and ammunitions which landed on 03.02.1993 could have been traced, if the said information was shared with the Customs Department as well as the Police. The appellant not only avoided alerting the Department, but also did not share the said piece of information till 25.03.1993 with the Department.
119. It has been contended by learned senior counsel for A-112 that he was surprised to hear about the landing of chemicals instead of silver and thus it can be inferred that A-112 was not aware of the landing of RDX at Shekhadi. As per the letter issued by PW-470, the information was specific that automatic weapons were to land in next 15-20 days near Bombay. In spite of this clear information, A-112 only kept ambush for two days and told the officers on duty that he will issue directions, if further ambush is required. We are also satisfied that A-112 deliberately did not keep a vigil at the required place and even after the information the chemical had landed and he did not take any steps to further pass on the information until 25.03.1993. It may also be seen in the light of his conduct of diverting attention of the Department from Mhasla to Bankot despite there being specific information from a senior officer of landing on 1st/2nd of February.
Deposition of Vivek Vishwanath Kadam (PW-163)
120. PW-163 was Inspector of Customs, Marine Preventive. From his testimony, the following fact emerges:
(i) A-112, in a meeting of Customs officials told S.K. Bharadwaj (PW-470) and other officers present that 60 drums of liquid chemicals had landed somewhere at the coast. The meeting took place on 25.03.1993.
(i) A-112 did not tell in the meeting that he had received the information of landing that took place on 03.02.1993 on the next day itself.
(ii) A-112 did not disclose that he had information about the landing any time before 25.03.1993.
120.1 The above evidence proves that A-112 had information about the landing that took place on 03.02.1993; however, he chose not to share it with the other officers.
Deposition of Prabhakar Natarajan (PW-152)
120.2 PW-152 was an Inspector of Customs at Shrivardhan Post. From his testimony, the following facts emerge:
(i) On 25.03.1993, a meeting was called by the Collector of Customs at the Customs Office at Murud where A-112 remarked that a landing of chemicals might have taken place at Shekhadi during the first week of February.
(ii) Until the said date, i.e. 25.03.1993, S.N. Thapa had not taken any action regarding any landing of RDX which was said to have taken place at Shekhadi on 03.02.1993.
(iii) A-112 did not tell the other officers in the meeting that he had information about the landing.
Deposition of Saryuprasad Ramnivaj Maurya (PW-100)
120.3 PW-100 was working in the Customs Office, Shrivardhan as an O.T.C. (Operator Tele Communication). His duty was to send and receive wireless messages. He deposed as under:-
(i) He deposed that the record of message received and sent on wireless is maintained by recording the same in VHF/Wireless log book.
(ii) He was shown the VHF radio log book for a period from 11.11.1992 to 06.04.1993;
(iii) He proved Exh. No. 534 (Box No. 17) in court which is the VHF Radio log for 02.02.1993. This message was received from Bombay by Additional Collector of Customs. A-112 was the then Additional Collector of Customs in Bombay. The entry of 02.02.1993 was marked as Exh. No. 534A.
(iv) Panther word is wireless code for Additional Collector (i.e. A-112).
121. In view of the above, the following facts emerge:
(i) A-112 was fully aware of the information that the weapons of mass destruction may be smuggled to India along with silver and gold;
(ii) He kept vigil at a place which leaves room for the smugglers to escape from another route to Bombay under the guise of specific information;
(iii) He failed to produce any such specific information ever;
(iv) A-112 told that he has specific information that Tiger Memon is going to come through that route in a particular manner;
(v) Actually, there was no specific information that the smuggler was Tiger Memon and that he was to pass through a particular route;
(vi) The onus was on the accused to prove his specific information for a particular course of conduct undertaken by him;
(vii) He also spread rumour of specific information to mislead and misguide the Department so as to help the smugglers;
(viii) He mis-directed the Department by distorting a specific message of landing at Mhasla to be something happening at Bankot about 45 kilometers away from Mahsala, particularly, when the said information came from a senior officer of the Department;
(ix) He failed to explain as to why he did that;
(x) He further failed to take account of what was done pursuant to the said information;
(xi) He did not do anything on specific information that along with Silver some chemicals have arrived at Shekhadi on 03.02.1993; and
(xii) Any timely action on the part of A-112 could have traced the smuggled goods. The said action could have prevented second landing that took place subsequently.
122. All the above said circumstances cumulatively establish the charges framed against A-112 at the trial. The said circumstances leave no room for any alternative hypothesis. We are also satisfied that pursuant to a conspiracy with Tiger Memon and his other co-conspirators, A-112 misused his official position in order to knowingly facilitate the terrorist act.
123. Under these circumstances, we are satisfied that the prosecution has established the guilt against the appellant and the Designated Court has rightly convicted him and sentenced him. Since he died during the pendency of this appeal, there cannot be any direction except confirming the decision of the Designated Court and clarifying the position. The appeal is disposed of accordingly.
