Suleman Mohamed Kasam Ghavte & Ors. (A-18) Vs. State of Maharashtra thr. STF, CBI Bombay
EmailAppeal: Criminal Appeal Nos. 675-681 of 2008
Petitioner: Suleman Mohamed Kasam Ghavte & Ors. (A-18)
Respondent: State of Maharashtra thr. STF, CBI Bombay
Apeal: Criminal Appeal Nos. 675-681 of 2008
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) – Bombay Blast case – Conviction under Section 3(3) of TADA – Involvement of Accused 18 – Confessional statements of Accused 18 and of other co-accused and depositions of other witnesses showing that Accused-18 was close associate of Tiger Memon (AA) – His involvement in transportation of contraband established, as he himself admitted the fact that he took tempo along with A-28, A-11 to Mhasla, loaded fifty-sixty packets which were dug out from land to vehicle – On touching contraband, came to know it was not silver – Confession corroborated by other co-accused. Held it cannot be presumed that A-18 was unaware of the nature of contraband, since he was closely associated with Tiger Memon. No reason to interfere with the sentence.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA – Involvement of Accused 18 – Confessional statements of Accused 18 and of other co-accused and depositions of other witnesses showing that Accused-18 was close associate of Tiger Memon (AA) – His involvement in transportation of contraband established, as he himself admitted the fact that he took tempo along with A-28, A-11 to Mhasla, loaded fifty-sixty packets which were dug out from land to vehicle – On touching contraband, came to know it was not silver – Confession corroborated by other co-accused. Held it cannot be presumed that A-18 was unaware of the nature of contraband, since he was closely associated with Tiger Memon. No reason to interfere with the sentence.
Held:
There is sufficient evidence to show that A-18 was involved in the transportation of contraband. From the facts and circumstances of the case, and after taking into consideration the evidence on record, it cannot be inferred that despite being a close associate of Tiger Memon (AA), he remained unaware of the nature of the contraband. Furthermore, when a person has been transporting goods for a long period of time it is difficult to believe that he would transport the said goods, without ascertaining the exact nature of goods being loaded into his vehicle, particularly, in view of the fact that the vehicle is likely to be checked at several places by the police, as well as by custom officials. Thus, we do not see any cogent reason to hold that the appellant (A-18) is not guilty of the charges for which he has been punished by the Designated Court. (Para 142)
JUDGEMENT:
Dr. B.S. Chauhan, J.
121. These appeals have been preferred against the judgments and orders dated 11th, 12th 16th, 17th October, 2006, 23rd /24th May, 2007 and 1st June, 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 appellants have been convicted. In view of the fact that each appellant being assigned different acts, has been charged differently and has been awarded a different sentence, it is desirable to deal with the case of each appellant separately to certain extent.
I. Suleman Mohammed Kasam Ghavte (A-18):
122. The appellant (A-18) has been convicted on two counts under Section 3(3) of TADA, and has been awarded 7 years rigorous imprisonment alongwith a fine of Rs. 25,000/- and in default of payment of fine, to suffer further RI for 6 months on each count.
123. In addition to the first charge of conspiracy, he has been charged for the following offences:
(i) That he has participated alongwith the other conspirators in the landing and transportation of arms, ammunition and explosives at Shekhadi, and has smuggled goods into the country to be used for the commission of terrorist acts.
(ii) That, he alongwith co-accused Abdul Rehman Shaikh (A-28) and others transported RDX explosives in Motor Tempo No. MMP-4799 from Shekhadi to Panvel, and the same contained goods that were smuggled into the country by Tiger Memon (AA) and his associates for the purpose of committing terrorist activities.
(iii) That he participated in weapons training at Sandheri/Borghat.
Thus, he has been charged under Section 3(3) TADA and has been convicted and sentenced as mentioned hereinbefore.
124. Ms. Farhana Shah, learned counsel appearing for the appellant has submitted that the appellant was unaware of the fact that the items being landed were those other than silver, and that he realized this fact only later. Furthermore, his confession had not been made voluntarily, but under threat and coercion. Thus, the appeal deserves to be allowed.
125. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that the appellant has been named by several witnesses of the Shekhadi landing. Moreover, the said vehicle had been seized and the FSL report was also positive as regards the presence of RDX. Therefore, the appeal deserves to be dismissed.
126. We have heard learned counsel for the parties and perused the record.
127. Evidence against the appellant (A-18):
(a) Confessional statement of Suleman Mohd. Kasam Ghavte (A-18)
(b) Confessional statement of Abdul Gani Ismial Turk (A-11)
(c) Confessional statement of Rusi Framroze Mulla (A-125)
(d) Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)
(f) Confessional statement of Liyakat Ali Habib Khan (A-85)
(g) Confessional statement of Abdul Gafoor Parkar (A-17)
(h) Deposition of Babydas Vasu (PW-290)
(i) Deposition of Pradeep S. Dalvi (PW-293)
(j) Deposition of Abdulmunaf A. Mahimi (PW-294)
(k) Deposition of Asit Ghorai (PW-602)
(l) Deposition of Ajit Surve (PW-604)
(m) Deposition of Moreshwar Thakur (PW-469)
128. Confessional Statement of Suleman Mohd. Kasam Ghavte( A-18):
In his confessional statement recorded on 18.4.1993 and 20.4.1993, the appellant has disclosed that he had been working as a driver. He has stated that he knew of a person named Anwar, who had lived in close proximity to his house right from his childhood. A relative of the appellant (A-18) had asked him whether he would travel to Ajmer Sharif along with Anwar in a Maruti Car. He had thus gone to Ajmer driving the said vehicle with Anwar, who had been working with Tiger Memon (AA) and was also being paid by him. A tempo bearing No. MMP-4799, belonging to a decorator was given to the appellant (A-18) on 5.2.1993. The said vehicle had been driven by him to take Sayyed Abdul Rehman Shaikh (A-28) and Abdul Gani (A-11) to Mhasla. Dawood Taklya (A-14) and Dadabhai (A-17) were already present at Mhasla. Fifty- sixty packets were loaded into the said vehicle. The said packets were dug out from the land. When the appellant (A-18) touched these packets, he realised that they did not contain silver smuggled from abroad. After collecting the aforementioned goods, he left for Bombay alongwith co-accused (A-55). When they reached Panvel, he realized that Tiger Memon (AA) had also come there in a Maruti car, and as per his instructions, they had then driven to the house of Dawood Taklya (A-14) in Mhasla in order to leave the tempo there. After some time, the appellant (A-18) had returned to Bombay, alongwith Gani (A-11) and others. After 2-3 days on 9.2.1993, he had gone to Mahad driving the said vehicle and had reached there at noon. He had seen a Maruti car and two jeeps parked there, and also saw Tiger Memon (AA), Yakub Haji, Anwar, Javed Chikna, Gani, Shafi and 5-6 other boys. Shafi asked the appellant (A-18) to stop the tempo at a petrol pump situated between Goregaon and Madgaon. At about 6 O clock in the evening, two boys had come there in a tempo, and had asked the appellant (A-18) to take the said tempo to the Mhasla tower. The appellant (A-18) had then taken the vehicle to Mhasla tower and had reached there at about 9.30 pm. The accused Anwar, Tiger Memon (AA), Shafi, Gani, Dawood Taklya (A-14), Dadabhai (A- 17), Javed Chikna and a few other persons had also come there at about 3.00 A.M. Upon the instructions of Tiger Memon (AA), the appellant (A-18) had then taken the vehicle to Chilpara Kalyan, where he had arrived reached at noon. The appellant (A-18) was then asked to leave the jeep at the house of Anwar. He reached the house of Anwar at about 4.00 P.M., left the vehicle there and was paid a sum of Rs.5000/- for the two trips that had been made by the appellant (A-18). From the conversation of Anwar, Tiger Memon and his partner, the appellant (A-18) had understood that the goods which were in the said vehicle were not silver, but something else. After he learnt that the aforementioned accused had been smuggling something other than silver and gold, the appellant (A-18) had stopped working for Anwar.
129. Confessional Statement of Abdul Gani Ismail Turk (A-11):
Abdul Gani Ismail Turk (A-11), in his confessional statement has stated that the appellant (A-18) had been participating in smuggling activities with his consent, and that he had known what was being smuggled. On 7 th /8th February, 1993, he (A-11) had gone to the house of Tiger Memon at the Al- Husseini building in Mahim. Tiger Memon had then taken him to the house of Anwar (AA), where they had met two other persons and he had learnt that the said people were Sayyed Abdul Rehman Shaikh (A-28) and the appellant (A-18), and that the two had a tempo with them. Tiger Memon had given him one lakh rupees and had asked him to go with the appellant (A-18) and to pay the said amount to Dawood Taklya (A-14) and to return with a chemical i.e. black soap. The said black soap was the same chemical that had been brought to the tower on the night of 3 rd February, 1993. He (A-11) alongwith the appellant (A-18) and Sayyed Abdul Rehman Shaikh (A-28) had left Mahim at midnight, and had reached the tower the next day at about 11 A.M. An amount of rupees one lakh that had been given by Tiger Memon (AA), was handed over to Dawood Taklya (A-14). The appellant (A-18) along with Abdul Gani Ismial Turk (A-11), and Sayyed Abdul Rehman Shaikh (A-28) had then loaded about 59 bags of the said chemical into the tempo that evening, and had thereafter, left for Bombay. They reached the Welcome Hotel at Panvel at about 11-12 o Clock at night. They had met Tiger Memon (AA) there and he (A-11) and the appellant (A-18) were directed to instruct Dawood Taklya (A-14) to keep some persons ready for work. They had conveyed the said message to Dawood Taklya (A-14). Dawood Taklya (A-14) had sent his son Sarfaraz (A-55) alongwith the appellant (A-18), Abdul Gani Ismail Turk (A-11) and Sayyed Abdul Rehman Shaikh (A-28) to Bombay.
130. Confessional Statement of Rusi Framroze Mulla (A-125):
He has corroborated the prosecutions version of events regarding the transportation of smuggled goods from Shekhadi to Panvel.
130.1 Thus, in their confessional statements the aforesaid accused persons have revealed that the appellant (A-18) had fully participated in the landing and transportation of smuggled goods, which included weapons and not just silver and gold.
131. Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12):
He (A-12) in his confessional statement has revealed that he had been working with Tiger Memon (AA) in the execution of hawala transactions and that he had been paying money to persons as was directed by Tiger Memon (AA) from time to time. After the Bombay riots he could not attend the office of Tiger Memon (AA) as the same had been closed. During this period he (A-12), has stated that he, alongwith Asgar were staying in Shafis house and that he would call the house of Tiger Memons at the Al Husseini building intermittently, but upon his doing so, he was always told that there was no work. Upon the instruction of Tiger Memon (AA) in January, 1993 he had gone to Mhasla and had met Dawood Taklya (A-14) and had also participated in the landing. The smuggled goods were brought from the jetty to the Wangni tower. The men employed by Javed and Yakub who had come from Bombay had then opened the boxes which contained bullets, revolvers, pistols etc. All the contraband were shifted into false cavities in the jeeps and tempos that had been organized, and which thereafter, departed for Bombay. One such jeep had been entrusted to him (A-12). He along with Nasir had been told by Tiger Memon (AA) to wait at Khandala, and one contact number had been given to them. At Khandala, they had gone to Hotel New Taj. A-12 had then tried to contact Tiger Memon (AA) over the telephone, using the said contact number at Hotel Big Splash, Alibagh. However, he was only able to speak to Mohd. Hussain who had advised A-12 to wait there, and had stated that A-18 would come there in the morning. Consequently, the appellant (A- 18) had come there with Imtiyaz in the afternoon. With them, A-12 had gone to Bombay, and had been dropped off at Bandra Talab and the appellant (A-18) and Imtiyaz had also left from there.
132. Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28):
His confessional statement reveals that on 5th February, 1993 at about midnight, when he (A-28) was returning from shooting, the appellant (A-18) had met him on the road itself and had told him (A-28) that Tiger Memon (AA) was calling for him. Tiger Memon (AA) was standing nearby, and hence he met Tiger Memon who had told him to go to Mahim. Yeda Yakub had also been standing there alongwith Tiger Memon. Thus, he has corroborated the statement of Abdul Gani Ismail Turk (A-11).
133. Confessional Statement of Liyakat Ali Habib Khan (A-85):
His confessional statement reveals that in the second week of February 1993, his uncle Yakub Khan had asked his father to allow him to keep a few bags, for the period of a few months in their godown at Thane and thus, he had been allowed to do so. After a while, his uncle Yakub Khan, Tiger Memon (AA) and Nisar had come to his house in a jeep and had taken him along with them. After opening the godown of the factory, two tempos had been taken inside, and it was then that the goods were unloaded. There were 80 packets in gunny bags, and each bag weighed about 30 to 35 Kgs. Tiger Memon had given Liyakat Ali Habib Khan (A- 85) a sum of Rs.600/- out of which he had given Rs.200/- to Nisar and thereafter, Liyakat Ali Habib Khan (A-85), Nisar and the appellant (A-18) had gone to the said factory and had then left for Bombay. On the way, the appellant (A-18) had told him that the goods that had kept in their factory were actually explosives.
134. Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in his confessional statement has disclosed that the appellant (A-18) had in fact been present when 59 packets had been brought into Bombay.
135. Deposition of Babydas Vasu (PW-290):
He had been working in a hotel in Indraprastha at Nage Thana, District Raigad. He has deposed that the appellant (A-18) alongwith others, had come there and had stayed in the said hotel for some time. There are entries to this effect in the hand writing of the appellant (A-18). Room No. 106 had been booked for them in the said hotel. He has produced the register to prove the same, but the said entries are of the year 1992, and not of 1993.
136. Deposition of Pradeep S. Dalvi (PW-293):
He has deposed that he was the registered owner of the vehicle Matador Tempo bearing registration No. MMP-4799 which had been sold to a decorator in 1988. The said tempo, bearing this registration number had been used for the smuggling of various types of contraband, including weapons, from Shekhadi to Panvel by the appellant (A-18).
137. Deposition of Abdulmunaf A. Mahimi (PW-294):
He has deposed that he was the brother of Abdul Samad who had been carrying on the business of electrical and mandap decoration, and that the said vehicle had been purchased by his brother Abdul Samad (not examined) between 5.2.1993 and 9.2.1993. The tempo was not found in the campus. The said vehicle had been seized on 30.11.1993, but no samples etc. were taken from the vehicle to determine whether it contained RDX explosives etc. or not.
138. Deposition of Asit Ghorai (PW-602):
He has deposed as a panch witness and has stated that 13 samples were in fact taken after the seizure of the vehicle on 30.11.1993. The samples were then sent for chemical analysis.
139. Deposition of Ajit Surve (PW-604):
He has proved the seizure of the vehicle and the sending of the RDX samples for chemical analysis and also the receipt of the report stating that RDX had been found therein.
140. Deposition of Moreshwar Thakur (PW-469):
He has deposed that the Test Identification Parade had been held in accordance with law, and has further stated that some witnesses had identified the appellant (A-18), as the person who was had been involved in the landing at Shekhadi.
141. After due consideration of the entire evidence on record, the Designated Court came to the conclusion that as the appellant (A- 18) was involved in the Shekhadi landings operation, he has committed the offence under section 3(3) TADA. The evidence has also established his involvement in commission of the offence of conspiracy with the object of committing terrorist acts, as the appellant (A-18) had been made aware of the nature of the smuggled goods and had still transported the same. The said act amounts to furthering the object of conspiracy to commit terrorist acts. However it has been held that the appellant (A-18) himself has not committed any act and that he himself has not participated in any conspiratorial meetings, to denote that he was actually a party to the conspiracy to commit serial bomb Blast or a party to the larger conspiracy i.e. the first charge.
142. So far as the appellant (A-18) is concerned, undoubtedly, there is sufficient evidence to show that he was involved in the transportation of contraband. From the facts and circumstances of the case, and after taking into consideration the evidence on record, it cannot be inferred that despite being a close associate of Tiger Memon (AA), he remained unaware of the nature of the contraband. Furthermore, when a person has been transporting goods for a long period of time it is difficult to believe that he would transport the said goods, without ascertaining the exact nature of goods being loaded into his vehicle, particularly, in view of the fact that the vehicle is likely to be checked at several places by the police, as well as by custom officials. Thus, we do not see any cogent reason to hold that the appellant (A-18) is not guilty of the charges for which he has been punished by the Designated Court.
***************
121. These appeals have been preferred against the judgments and orders dated 11th, 12th 16th, 17th October, 2006, 23rd /24th May, 2007 and 1st June, 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 appellants have been convicted. In view of the fact that each appellant being assigned different acts, has been charged differently and has been awarded a different sentence, it is desirable to deal with the case of each appellant separately to certain extent.
I. Suleman Mohammed Kasam Ghavte (A-18):
122. The appellant (A-18) has been convicted on two counts under Section 3(3) of TADA, and has been awarded 7 years rigorous imprisonment alongwith a fine of Rs. 25,000/- and in default of payment of fine, to suffer further RI for 6 months on each count.
123. In addition to the first charge of conspiracy, he has been charged for the following offences:
(i) That he has participated alongwith the other conspirators in the landing and transportation of arms, ammunition and explosives at Shekhadi, and has smuggled goods into the country to be used for the commission of terrorist acts.
(ii) That, he alongwith co-accused Abdul Rehman Shaikh (A-28) and others transported RDX explosives in Motor Tempo No. MMP-4799 from Shekhadi to Panvel, and the same contained goods that were smuggled into the country by Tiger Memon (AA) and his associates for the purpose of committing terrorist activities.
(iii) That he participated in weapons training at Sandheri/Borghat.
Thus, he has been charged under Section 3(3) TADA and has been convicted and sentenced as mentioned hereinbefore.
124. Ms. Farhana Shah, learned counsel appearing for the appellant has submitted that the appellant was unaware of the fact that the items being landed were those other than silver, and that he realized this fact only later. Furthermore, his confession had not been made voluntarily, but under threat and coercion. Thus, the appeal deserves to be allowed.
125. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that the appellant has been named by several witnesses of the Shekhadi landing. Moreover, the said vehicle had been seized and the FSL report was also positive as regards the presence of RDX. Therefore, the appeal deserves to be dismissed.
126. We have heard learned counsel for the parties and perused the record.
127. Evidence against the appellant (A-18):
(a) Confessional statement of Suleman Mohd. Kasam Ghavte (A-18)
(b) Confessional statement of Abdul Gani Ismial Turk (A-11)
(c) Confessional statement of Rusi Framroze Mulla (A-125)
(d) Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)
(f) Confessional statement of Liyakat Ali Habib Khan (A-85)
(g) Confessional statement of Abdul Gafoor Parkar (A-17)
(h) Deposition of Babydas Vasu (PW-290)
(i) Deposition of Pradeep S. Dalvi (PW-293)
(j) Deposition of Abdulmunaf A. Mahimi (PW-294)
(k) Deposition of Asit Ghorai (PW-602)
(l) Deposition of Ajit Surve (PW-604)
(m) Deposition of Moreshwar Thakur (PW-469)
128. Confessional Statement of Suleman Mohd. Kasam Ghavte( A-18):
In his confessional statement recorded on 18.4.1993 and 20.4.1993, the appellant has disclosed that he had been working as a driver. He has stated that he knew of a person named Anwar, who had lived in close proximity to his house right from his childhood. A relative of the appellant (A-18) had asked him whether he would travel to Ajmer Sharif along with Anwar in a Maruti Car. He had thus gone to Ajmer driving the said vehicle with Anwar, who had been working with Tiger Memon (AA) and was also being paid by him. A tempo bearing No. MMP-4799, belonging to a decorator was given to the appellant (A-18) on 5.2.1993. The said vehicle had been driven by him to take Sayyed Abdul Rehman Shaikh (A-28) and Abdul Gani (A-11) to Mhasla. Dawood Taklya (A-14) and Dadabhai (A-17) were already present at Mhasla. Fifty- sixty packets were loaded into the said vehicle. The said packets were dug out from the land. When the appellant (A-18) touched these packets, he realised that they did not contain silver smuggled from abroad. After collecting the aforementioned goods, he left for Bombay alongwith co-accused (A-55). When they reached Panvel, he realized that Tiger Memon (AA) had also come there in a Maruti car, and as per his instructions, they had then driven to the house of Dawood Taklya (A-14) in Mhasla in order to leave the tempo there. After some time, the appellant (A-18) had returned to Bombay, alongwith Gani (A-11) and others. After 2-3 days on 9.2.1993, he had gone to Mahad driving the said vehicle and had reached there at noon. He had seen a Maruti car and two jeeps parked there, and also saw Tiger Memon (AA), Yakub Haji, Anwar, Javed Chikna, Gani, Shafi and 5-6 other boys. Shafi asked the appellant (A-18) to stop the tempo at a petrol pump situated between Goregaon and Madgaon. At about 6 O clock in the evening, two boys had come there in a tempo, and had asked the appellant (A-18) to take the said tempo to the Mhasla tower. The appellant (A-18) had then taken the vehicle to Mhasla tower and had reached there at about 9.30 pm. The accused Anwar, Tiger Memon (AA), Shafi, Gani, Dawood Taklya (A-14), Dadabhai (A- 17), Javed Chikna and a few other persons had also come there at about 3.00 A.M. Upon the instructions of Tiger Memon (AA), the appellant (A-18) had then taken the vehicle to Chilpara Kalyan, where he had arrived reached at noon. The appellant (A-18) was then asked to leave the jeep at the house of Anwar. He reached the house of Anwar at about 4.00 P.M., left the vehicle there and was paid a sum of Rs.5000/- for the two trips that had been made by the appellant (A-18). From the conversation of Anwar, Tiger Memon and his partner, the appellant (A-18) had understood that the goods which were in the said vehicle were not silver, but something else. After he learnt that the aforementioned accused had been smuggling something other than silver and gold, the appellant (A-18) had stopped working for Anwar.
129. Confessional Statement of Abdul Gani Ismail Turk (A-11):
Abdul Gani Ismail Turk (A-11), in his confessional statement has stated that the appellant (A-18) had been participating in smuggling activities with his consent, and that he had known what was being smuggled. On 7 th /8th February, 1993, he (A-11) had gone to the house of Tiger Memon at the Al- Husseini building in Mahim. Tiger Memon had then taken him to the house of Anwar (AA), where they had met two other persons and he had learnt that the said people were Sayyed Abdul Rehman Shaikh (A-28) and the appellant (A-18), and that the two had a tempo with them. Tiger Memon had given him one lakh rupees and had asked him to go with the appellant (A-18) and to pay the said amount to Dawood Taklya (A-14) and to return with a chemical i.e. black soap. The said black soap was the same chemical that had been brought to the tower on the night of 3 rd February, 1993. He (A-11) alongwith the appellant (A-18) and Sayyed Abdul Rehman Shaikh (A-28) had left Mahim at midnight, and had reached the tower the next day at about 11 A.M. An amount of rupees one lakh that had been given by Tiger Memon (AA), was handed over to Dawood Taklya (A-14). The appellant (A-18) along with Abdul Gani Ismial Turk (A-11), and Sayyed Abdul Rehman Shaikh (A-28) had then loaded about 59 bags of the said chemical into the tempo that evening, and had thereafter, left for Bombay. They reached the Welcome Hotel at Panvel at about 11-12 o Clock at night. They had met Tiger Memon (AA) there and he (A-11) and the appellant (A-18) were directed to instruct Dawood Taklya (A-14) to keep some persons ready for work. They had conveyed the said message to Dawood Taklya (A-14). Dawood Taklya (A-14) had sent his son Sarfaraz (A-55) alongwith the appellant (A-18), Abdul Gani Ismail Turk (A-11) and Sayyed Abdul Rehman Shaikh (A-28) to Bombay.
130. Confessional Statement of Rusi Framroze Mulla (A-125):
He has corroborated the prosecutions version of events regarding the transportation of smuggled goods from Shekhadi to Panvel.
130.1 Thus, in their confessional statements the aforesaid accused persons have revealed that the appellant (A-18) had fully participated in the landing and transportation of smuggled goods, which included weapons and not just silver and gold.
131. Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12):
He (A-12) in his confessional statement has revealed that he had been working with Tiger Memon (AA) in the execution of hawala transactions and that he had been paying money to persons as was directed by Tiger Memon (AA) from time to time. After the Bombay riots he could not attend the office of Tiger Memon (AA) as the same had been closed. During this period he (A-12), has stated that he, alongwith Asgar were staying in Shafis house and that he would call the house of Tiger Memons at the Al Husseini building intermittently, but upon his doing so, he was always told that there was no work. Upon the instruction of Tiger Memon (AA) in January, 1993 he had gone to Mhasla and had met Dawood Taklya (A-14) and had also participated in the landing. The smuggled goods were brought from the jetty to the Wangni tower. The men employed by Javed and Yakub who had come from Bombay had then opened the boxes which contained bullets, revolvers, pistols etc. All the contraband were shifted into false cavities in the jeeps and tempos that had been organized, and which thereafter, departed for Bombay. One such jeep had been entrusted to him (A-12). He along with Nasir had been told by Tiger Memon (AA) to wait at Khandala, and one contact number had been given to them. At Khandala, they had gone to Hotel New Taj. A-12 had then tried to contact Tiger Memon (AA) over the telephone, using the said contact number at Hotel Big Splash, Alibagh. However, he was only able to speak to Mohd. Hussain who had advised A-12 to wait there, and had stated that A-18 would come there in the morning. Consequently, the appellant (A- 18) had come there with Imtiyaz in the afternoon. With them, A-12 had gone to Bombay, and had been dropped off at Bandra Talab and the appellant (A-18) and Imtiyaz had also left from there.
132. Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28):
His confessional statement reveals that on 5th February, 1993 at about midnight, when he (A-28) was returning from shooting, the appellant (A-18) had met him on the road itself and had told him (A-28) that Tiger Memon (AA) was calling for him. Tiger Memon (AA) was standing nearby, and hence he met Tiger Memon who had told him to go to Mahim. Yeda Yakub had also been standing there alongwith Tiger Memon. Thus, he has corroborated the statement of Abdul Gani Ismail Turk (A-11).
133. Confessional Statement of Liyakat Ali Habib Khan (A-85):
His confessional statement reveals that in the second week of February 1993, his uncle Yakub Khan had asked his father to allow him to keep a few bags, for the period of a few months in their godown at Thane and thus, he had been allowed to do so. After a while, his uncle Yakub Khan, Tiger Memon (AA) and Nisar had come to his house in a jeep and had taken him along with them. After opening the godown of the factory, two tempos had been taken inside, and it was then that the goods were unloaded. There were 80 packets in gunny bags, and each bag weighed about 30 to 35 Kgs. Tiger Memon had given Liyakat Ali Habib Khan (A- 85) a sum of Rs.600/- out of which he had given Rs.200/- to Nisar and thereafter, Liyakat Ali Habib Khan (A-85), Nisar and the appellant (A-18) had gone to the said factory and had then left for Bombay. On the way, the appellant (A-18) had told him that the goods that had kept in their factory were actually explosives.
134. Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in his confessional statement has disclosed that the appellant (A-18) had in fact been present when 59 packets had been brought into Bombay.
135. Deposition of Babydas Vasu (PW-290):
He had been working in a hotel in Indraprastha at Nage Thana, District Raigad. He has deposed that the appellant (A-18) alongwith others, had come there and had stayed in the said hotel for some time. There are entries to this effect in the hand writing of the appellant (A-18). Room No. 106 had been booked for them in the said hotel. He has produced the register to prove the same, but the said entries are of the year 1992, and not of 1993.
136. Deposition of Pradeep S. Dalvi (PW-293):
He has deposed that he was the registered owner of the vehicle Matador Tempo bearing registration No. MMP-4799 which had been sold to a decorator in 1988. The said tempo, bearing this registration number had been used for the smuggling of various types of contraband, including weapons, from Shekhadi to Panvel by the appellant (A-18).
137. Deposition of Abdulmunaf A. Mahimi (PW-294):
He has deposed that he was the brother of Abdul Samad who had been carrying on the business of electrical and mandap decoration, and that the said vehicle had been purchased by his brother Abdul Samad (not examined) between 5.2.1993 and 9.2.1993. The tempo was not found in the campus. The said vehicle had been seized on 30.11.1993, but no samples etc. were taken from the vehicle to determine whether it contained RDX explosives etc. or not.
138. Deposition of Asit Ghorai (PW-602):
He has deposed as a panch witness and has stated that 13 samples were in fact taken after the seizure of the vehicle on 30.11.1993. The samples were then sent for chemical analysis.
139. Deposition of Ajit Surve (PW-604):
He has proved the seizure of the vehicle and the sending of the RDX samples for chemical analysis and also the receipt of the report stating that RDX had been found therein.
140. Deposition of Moreshwar Thakur (PW-469):
He has deposed that the Test Identification Parade had been held in accordance with law, and has further stated that some witnesses had identified the appellant (A-18), as the person who was had been involved in the landing at Shekhadi.
141. After due consideration of the entire evidence on record, the Designated Court came to the conclusion that as the appellant (A- 18) was involved in the Shekhadi landings operation, he has committed the offence under section 3(3) TADA. The evidence has also established his involvement in commission of the offence of conspiracy with the object of committing terrorist acts, as the appellant (A-18) had been made aware of the nature of the smuggled goods and had still transported the same. The said act amounts to furthering the object of conspiracy to commit terrorist acts. However it has been held that the appellant (A-18) himself has not committed any act and that he himself has not participated in any conspiratorial meetings, to denote that he was actually a party to the conspiracy to commit serial bomb Blast or a party to the larger conspiracy i.e. the first charge.
142. So far as the appellant (A-18) is concerned, undoubtedly, there is sufficient evidence to show that he was involved in the transportation of contraband. From the facts and circumstances of the case, and after taking into consideration the evidence on record, it cannot be inferred that despite being a close associate of Tiger Memon (AA), he remained unaware of the nature of the contraband. Furthermore, when a person has been transporting goods for a long period of time it is difficult to believe that he would transport the said goods, without ascertaining the exact nature of goods being loaded into his vehicle, particularly, in view of the fact that the vehicle is likely to be checked at several places by the police, as well as by custom officials. Thus, we do not see any cogent reason to hold that the appellant (A-18) is not guilty of the charges for which he has been punished by the Designated Court.
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