State of Maharashtra Vs. Mohd. Shahid Nizamuddin Qureshi
EmailAppeal: Criminal Appeal No. 1025 of 2012
Petitioner: State of Maharashtra
Respondent: Mohd. Shahid Nizamuddin Qureshi
Apeal: Criminal Appeal No. 1025 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
Sections 3(3), 15 – Bombay blast case – Conviction under Section 3(3) – Acquittal of main charge of conspiracy – Allegation of participation in landing of contraband at Shekhadi – Said participation proved by confession of A64 and PW2 – PW2’s deposition that A135 attended a meeting at Hotel Big Splash where TM spoke about taking revenge on Hindus – As per material on record all went to seashore for landing where TM’s close associates were armed with ammunitions – Designated Court found close association of A135 with Tiger Memon and his involvement in Shekhadi landing but held that as he had not been aware of the articles smuggled, he cannot be held liable for conspiracy. Findings upheld.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 15 – Bombay blast case – Conviction under Section 3(3) – Acquittal of main charge of conspiracy – Allegation of participation in landing of contraband at Shekhadi – Said participation proved by confession of A64 and PW2 – PW2’s deposition that A135 attended a meeting at Hotel Big Splash where TM spoke about taking revenge on Hindus – As per material on record all went to seashore for landing where TM’s close associates were armed with ammunitions – Designated Court found close association of A135 with Tiger Memon and his involvement in Shekhadi landing but held that as he had not been aware of the articles smuggled, he cannot be held liable for conspiracy. Findings upheld.
JUDGEMENT:
214. This appeal has been preferred against the judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993, by which the said respondent has been convicted under Section 3(3) TADA, and has been awarded a sentence of 10 years rigorous imprisonment, alongwith a fine of Rs. 25,000/-, and in default of payment of fine, to further undergo RI for six months. He has been acquitted of some of the other charges including the main charge of conspiracy.
Hence, this appeal.
215. Shri Mukul Gupta, learned senior counsel appearing for the appellant, has submitted that there is enough evidence to show the deep involvement of Mohd. Shahid Nizamuddin Qureshi (A-135) in the said crime and, therefore, he ought not to have been acquitted for the charge of conspiracy.
216. Ms. Farhana Shah, learned counsel appearing for the respondent (A-135), has submitted that he has already suffered tremendously. He has served 11-1/2 years of sentence, though he was awarded only 10 years rigorous imprisonment, and has also deposited the fine. He has not filed any appeal against his conviction, as he has reconciled himself with his fate. There is nothing on record to show that the accused (A-135) had any knowledge of the contraband, or how the same was going to be used. He had no intention to harm any one. Thus, the findings recorded by the Designated Court on this issue, do not require any interference.
217. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
218. The confession of the accused (A-135) was recorded, however, the same has been discarded by the Special Judge on the ground that the police officer who had recorded the confessional statement, had not ensured compliance with Section 15 TADA and Rule 15(3) TADA Rules, 1987.
219. However, as far as the charge of conspiracy is concerned, the other evidence is of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) who has revealed, that in either at the end of January 1993 or in the beginning of February 1993, at the instance of Tiger Memon (AA), Javed Chikna, the accused (A-64) etc., had participated in the landing of contraband goods such as rifles, bullets, hand-grenades, detonators, RDX etc. at the Shekhadi coast. The said goods had been transported to the Wangni Tower, and here, the bags containing the contraband had been opened and weapons, cartridges etc., had thereafter been concealed in fake cavities of the vehicles that had been arranged for the transportation of the smuggled goods into Bombay. During the said operation, the accused (A-135) had actively participated alongwith Javed Chikna, and various other associates. He has further disclosed that 3-4 days after the first landing, a second landing had taken place, in which the contraband were smuggled in through Shekhadi coast, in which yet again, the accused (A-135) had actively participated. Usman (PW.2) has also deposed that the accused (A-135) had in fact, participated in the said landing, as well as in the transportation of the contraband material.
220. However, a question does arise with respect to whether the accused (A-135) had been aware of the contents of the contraband, and whether he had known the purpose for which the weapons etc., had been smuggled into India. As per the material on record, it becomes evident that Tiger Memon (AA) and his close associates, including the accused (A-135), had first gone to Hotel Big Splash at Alibagh, and from there they had gone to the seashore to participate in the said landing. At this time, the close associates of Tiger Memon (AA), had been fully armed with AK-47/56 rifles, revolvers, magazines and cartridges. They had taken up positions near the seashore to prevent any kind of interference. The goods had then arrived in large packets, which had been unloaded with the help of some villagers who were already present there, as the same had been deployed by Dawood @ Dawood Taklya Mohammed Phanse (A-14). After the loading of the goods into a truck, the contraband had been brought to Wangni Tower. All the packets had been taken inside the tower, and when the same had been opened, it had become evident that the packets contained explosives, cartridges and arms. These arms had then subsequently, been filled into secret cavities that had been created in the jeeps, and were then taken away. After 2-3 days, Yeda Yakub, Riaz Khatri, Munna Jadia, Ethesham (A- 58), Akbar and Karimullah had gone in a Maruti van and had picked up Nasir (A-64). Yeda Yakub had told them that more arms were scheduled to arrive for Tiger Memon (AA) at the Shekhadi coast, for the purpose of which, they would have to go there. They had thus, participated in the second landing as well, and had brought in the said goods. At such time, the associates of Tiger Memon (AA) had also been present there, alongwith Shahid Qureshi (A-135). Following the orders of Tiger Memon (AA), the packets of arms and explosives had been loaded into a jeep and a tempo, and had been taken to Bombay.
221. The deposition of Usman Ahmed Jan Khan (PW-2) has revealed that Tiger Memon (AA) had convened a meeting at the hotel Big Splash, and had expressed his desire to take revenge for the demolition of the Babri Masjid. Shahid (A-135) had also been present at the said meeting. From the hotel, they had left for Shekhadi Coast in jeeps. At about 11 p.m., Tiger Memon (AA) and his associates, including the accused (A- 135) had gone to high sea, in a boat. The said boat had taken them to a big red speed boat. Tiger Memon (AA) had gone over to the other boat, and had brought out seven bags of military colour from the said speed boat. The bags had contained guns, pistols and hand-grenades, and also AK-56 rifles.
222. The Designated Court, after appreciating the entire evidence on record with respect to Nizammudin Qureshi, has recorded the following conclusion:
All said evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.
Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1stly.
223. Undoubtedly, the respondent had participated in the landing at Shekhadi when the contraband were smuggled into India. However, as the evidence on record as well as the findings recorded by the Designated Court remain to the effect that he had not been aware of the articles smuggled, he cannot be held liable for punishment for conspiracy.
224. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
225. We concur with the finding recorded by the learned Designated Court, and find no reason to interfere with the order passed by the Special Judge. The appeal lacks merit, and is accordingly dismissed.
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Hence, this appeal.
215. Shri Mukul Gupta, learned senior counsel appearing for the appellant, has submitted that there is enough evidence to show the deep involvement of Mohd. Shahid Nizamuddin Qureshi (A-135) in the said crime and, therefore, he ought not to have been acquitted for the charge of conspiracy.
216. Ms. Farhana Shah, learned counsel appearing for the respondent (A-135), has submitted that he has already suffered tremendously. He has served 11-1/2 years of sentence, though he was awarded only 10 years rigorous imprisonment, and has also deposited the fine. He has not filed any appeal against his conviction, as he has reconciled himself with his fate. There is nothing on record to show that the accused (A-135) had any knowledge of the contraband, or how the same was going to be used. He had no intention to harm any one. Thus, the findings recorded by the Designated Court on this issue, do not require any interference.
217. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
218. The confession of the accused (A-135) was recorded, however, the same has been discarded by the Special Judge on the ground that the police officer who had recorded the confessional statement, had not ensured compliance with Section 15 TADA and Rule 15(3) TADA Rules, 1987.
219. However, as far as the charge of conspiracy is concerned, the other evidence is of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) who has revealed, that in either at the end of January 1993 or in the beginning of February 1993, at the instance of Tiger Memon (AA), Javed Chikna, the accused (A-64) etc., had participated in the landing of contraband goods such as rifles, bullets, hand-grenades, detonators, RDX etc. at the Shekhadi coast. The said goods had been transported to the Wangni Tower, and here, the bags containing the contraband had been opened and weapons, cartridges etc., had thereafter been concealed in fake cavities of the vehicles that had been arranged for the transportation of the smuggled goods into Bombay. During the said operation, the accused (A-135) had actively participated alongwith Javed Chikna, and various other associates. He has further disclosed that 3-4 days after the first landing, a second landing had taken place, in which the contraband were smuggled in through Shekhadi coast, in which yet again, the accused (A-135) had actively participated. Usman (PW.2) has also deposed that the accused (A-135) had in fact, participated in the said landing, as well as in the transportation of the contraband material.
220. However, a question does arise with respect to whether the accused (A-135) had been aware of the contents of the contraband, and whether he had known the purpose for which the weapons etc., had been smuggled into India. As per the material on record, it becomes evident that Tiger Memon (AA) and his close associates, including the accused (A-135), had first gone to Hotel Big Splash at Alibagh, and from there they had gone to the seashore to participate in the said landing. At this time, the close associates of Tiger Memon (AA), had been fully armed with AK-47/56 rifles, revolvers, magazines and cartridges. They had taken up positions near the seashore to prevent any kind of interference. The goods had then arrived in large packets, which had been unloaded with the help of some villagers who were already present there, as the same had been deployed by Dawood @ Dawood Taklya Mohammed Phanse (A-14). After the loading of the goods into a truck, the contraband had been brought to Wangni Tower. All the packets had been taken inside the tower, and when the same had been opened, it had become evident that the packets contained explosives, cartridges and arms. These arms had then subsequently, been filled into secret cavities that had been created in the jeeps, and were then taken away. After 2-3 days, Yeda Yakub, Riaz Khatri, Munna Jadia, Ethesham (A- 58), Akbar and Karimullah had gone in a Maruti van and had picked up Nasir (A-64). Yeda Yakub had told them that more arms were scheduled to arrive for Tiger Memon (AA) at the Shekhadi coast, for the purpose of which, they would have to go there. They had thus, participated in the second landing as well, and had brought in the said goods. At such time, the associates of Tiger Memon (AA) had also been present there, alongwith Shahid Qureshi (A-135). Following the orders of Tiger Memon (AA), the packets of arms and explosives had been loaded into a jeep and a tempo, and had been taken to Bombay.
221. The deposition of Usman Ahmed Jan Khan (PW-2) has revealed that Tiger Memon (AA) had convened a meeting at the hotel Big Splash, and had expressed his desire to take revenge for the demolition of the Babri Masjid. Shahid (A-135) had also been present at the said meeting. From the hotel, they had left for Shekhadi Coast in jeeps. At about 11 p.m., Tiger Memon (AA) and his associates, including the accused (A- 135) had gone to high sea, in a boat. The said boat had taken them to a big red speed boat. Tiger Memon (AA) had gone over to the other boat, and had brought out seven bags of military colour from the said speed boat. The bags had contained guns, pistols and hand-grenades, and also AK-56 rifles.
222. The Designated Court, after appreciating the entire evidence on record with respect to Nizammudin Qureshi, has recorded the following conclusion:
All said evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.
Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1stly.
223. Undoubtedly, the respondent had participated in the landing at Shekhadi when the contraband were smuggled into India. However, as the evidence on record as well as the findings recorded by the Designated Court remain to the effect that he had not been aware of the articles smuggled, he cannot be held liable for punishment for conspiracy.
224. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
225. We concur with the finding recorded by the learned Designated Court, and find no reason to interfere with the order passed by the Special Judge. The appeal lacks merit, and is accordingly dismissed.
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