The State of Maharashtra Vs. Sharif Khan Abbas Adhikari
EmailAppeal: Criminal Appeal No. 393 of 2011
Petitioner: The State of Maharashtra
Respondent: Sharif Khan Abbas Adhikari
Apeal: Criminal Appeal No. 393 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Customs Act, 1962,Section 111 read with Section 135 – Appeal against acquittal – Smuggling of contraband – Allegation of landing and transportation of arms and ammunition and explosives at Shekhadi and shifting of contrabands from motor trucks into tempos and motor jeeps at Wangni – As per A42’s confession, respondent A60 was also sitting in the truck carrying contraband – As per A62’s evidence , employee at Wangni, respondent had come to the tower at midnight with contraband and goods were loaded in the tempo from truck – Further stated that A62 was informed by respondent about landing and bringing of goods by Dawood Phanse (A-14) for which all arrangements were made – His evidence corroborated by PW 108 and PW 137 who even identified respondent in court – Conviction under Sections 111 and 135 of 1962 by Designated Court – Acquittal of charge of conspiracy and under Section 3(3) TADA – Whether justified – Whether he could be said to have had no knowledge about the nature of goods smuggled. Held, acquittal needs no interference in absence of evidence establishing knowledge.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Customs Act, 1962,Section 111 read with Section 135 – Appeal against acquittal – Smuggling of contraband – Allegation of landing and transportation of arms and ammunition and explosives at Shekhadi and shifting of contrabands from motor trucks into tempos and motor jeeps at Wangni – As per A42’s confession, respondent A60 was also sitting in the truck carrying contraband – As per A62’s evidence , employee at Wangni, respondent had come to the tower at midnight with contraband and goods were loaded in the tempo from truck – Further stated that A62 was informed by respondent about landing and bringing of goods by Dawood Phanse (A-14) for which all arrangements were made – His evidence corroborated by PW 108 and PW 137 who even identified respondent in court – Conviction under Sections 111 and 135 of 1962 by Designated Court – Acquittal of charge of conspiracy and under Section 3(3) TADA – Whether justified – Whether he could be said to have had no knowledge about the nature of goods smuggled. Held, acquittal needs no interference in absence of evidence establishing knowledge.
JUDGEMENT:
126. This criminal appeal has been preferred against the impugned 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. 1/93, by which the respondent had been convicted under Section 111 read with Section 135 of the Customs Act, 1962, and awarded the sentence of 3 years, alongwith a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for a period of 6 months. However, he had been acquitted of the charge of conspiracy and charge under Section 3(3) TADA.
127. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent was also charged for participating in the landing and transportation of the arms, ammunition and explosives at Shekhadi, Dist. Raigad, for committing terrorist acts and also by shifting the said contrabands from motor truck bearing registration No. MWT-6683 on 3.2.1993 into tempos and motor jeeps at Wangni Micro Tower Mhasla.
B. After holding the trial, the respondent has been acquitted of the aforesaid charges, however, convicted for the other charges as mentioned hereinabove.
Hence, this appeal.
128. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there is sufficient evidence against the respondent so far as his participation in landing and transportation of the arms, ammunition, explosives etc. Therefore, the acquittal under Section 3(3) TADA, and of the charge of conspiracy is unwarranted. The evidence on record makes it evident that he had knowledge that contraband were not silver, but arms and ammunition. Therefore, appeal deserves to be allowed, and the respondent should be convicted for the aforesaid offences.
129. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that after appreciating the evidence on record, the Designated Court reached the conclusion that even if the respondent had participated in landing and transportation of contraband, he had no knowledge about the nature of those articles. In the absence of any knowledge that those smuggled goods contained arms and ammunition, conviction under the provisions of TADA is not permissible. The respondent had already served 3 years imprisonment and paid a fine of Rs.25,000/-. Thus, no further consideration of the appeal is required. Thus, the appeal is liable to be dismissed.
130. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against the respondent:
Confession of Khalil Ahmed Sayed Ali Nasir (A-42):
131. He disclosed about the incident of landing and transportation on 3.2.1993 that the goods were brought by the truck by Rashid Umar Alware (A-27) who was driving the truck himself. In the said truck other persons namely Abdul Salam Hishamuddin Nazir, Bashir Fakji, Sharif Khan Abbas Adhikari (A-60), Muzammil Umar Kadri and Azimbhai Pardesi were sitting.
Confession of Tulsi Ram Dhondu Surve (A-62):
132. He was the employee at the Wangni Tower. He disclosed that he knew respondent Sharif Khan Abbas Adhikari (A-60), resident of Mhasla and he was the person who brought Dawood @ Dawood Taklya Mohammed Phanse (A-14) to him 1 years ago. They had persuaded him (A-62) to help in loading and unloading the smuggled silver and other goods in the tower for a handsome consideration. So far as the relevant incident is concerned, he disclosed that some of the persons including Sharif Khan Abbas Adhikari (A-60) came there with contraband at about midnight and thereafter the goods were loaded in the tempo from the truck. They paid Rs.1,000/- each to the said accused, Harishchandra Surve (PW-108), and Vijay Govind More (PW-137), the other employees at the Wangni Tower. He had been informed by Sharif Khan Abbas Adhikari (A-60) regarding the landing and bringing the goods by Dawood Phanse (A-14) and that is why the accused made all the arrangements.
Deposition of Harish Chandra Surve (PW-108):
133. He corroborated the version given by Tulsi Ram Dhondu Surve (A- 62) and regarding the said incident he disclosed that he knew all the co-accused/conspirators. The truck loaded with silver bricks came there and the bricks were shifted in the tempo and jeep. Thereafter all the vehicles left the tower. The deal was arranged by Tulsi Ram Dhondu Surve (A-62) on consideration fixed by Dawood Phanse (A-14). The truck of Rashid Umar Alware (A-27) was carrying silver bricks and wooden boxes of square shape. Silver bricks were wrapped in a gunny cloth. Persons in Maruti car were having small size guns. He had not seen the weapons with the persons who had accompanied the jeep and tempo. He further identified Sharif Khan Abbas Adhikari (A-60) in court to be the person who was in the jeep.
Deposition of Vijay Govind More (PW-137):
134. In respect of the incident dated 3.2.1993, he deposed that Tiger Memon (AA), Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A- 60), Abdul Gharatkar, Dadamiya Parkar (A-17), Sarfaraz Phanse (A-55) were amongst the said persons. He further deposed that Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A-60) and others were the occupants of one of the jeep and he also identified Sharif Khan Abbas Adhikari (A-60) in court.
135. The Designated court after appreciating the entire evidence on record came to the following conclusion:
Now carefully considering relevant material from confession of A-42 and A-62 about which excerpts are recited hereinabove it must be said that though same reveals involvement of A-60 in relevant landing operation still close look at the same and so also other evidence does not reveal any material indicating that A-60 was aware of nature of material which were smuggled during said operation. The same is obvious as hardly there is any material revealing that A-60 was present alongwith Tiger Memon when packets of goods were opened by Tiger Memon on coast. Similarly, evidence is contrary regarding presence of A-60 at Wangni Tower when goods were exchanged. Having regard to same it will be extremely difficult to hold A-60 guilty for offence under Section 3(3) TADA.
Having regard to fact that prosecution evidence about which detail dilation is made while recording the reasoning regarding the conclusion arrived about guilt of aforesaid accused and the same amongst other having denoted that A-33 and A-56 were owners of the boat which was used in contraband operation, both of them being involved twice in such operation, and even prior to same themselves and so also A-19 being engaged in such activities, the quantity of goods which was transported by A-19 being 48 cartons i.e. approximately 960 Kg. allegedly being silver as told to them, confession of A-14 revealing amount of Rs.24,000/- being paid to boatmen, A-27 having received an amount of Rs.20,000/- for transportation effected by him. A-60 also being involved twice in transportation operation as disclosed from the confession of A-62 and A-42 and even prior to same himself being involved in smuggling operations are the factors for not accepting submissions advanced for showing leniency on the count of financial condition etc. Needless to add that in the event of crimes being committed for earning handsome profits then hardly there would be any scope to show leniency on said count as the same will have an effect of causing erroneous impression of culprits being permitted to acquire the profits by commission of crimes. Needless to add that the same would warrant of levying a sentence of an appropriate amount of fine in addition to the sentence of rigorous imprisonment.
(Emphasis added)
136. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
137. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we agree with the reasoning given by the Special Judge. No interference is warranted on the facts of the case. The appeal is accordingly dismissed.
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127. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent was also charged for participating in the landing and transportation of the arms, ammunition and explosives at Shekhadi, Dist. Raigad, for committing terrorist acts and also by shifting the said contrabands from motor truck bearing registration No. MWT-6683 on 3.2.1993 into tempos and motor jeeps at Wangni Micro Tower Mhasla.
B. After holding the trial, the respondent has been acquitted of the aforesaid charges, however, convicted for the other charges as mentioned hereinabove.
Hence, this appeal.
128. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there is sufficient evidence against the respondent so far as his participation in landing and transportation of the arms, ammunition, explosives etc. Therefore, the acquittal under Section 3(3) TADA, and of the charge of conspiracy is unwarranted. The evidence on record makes it evident that he had knowledge that contraband were not silver, but arms and ammunition. Therefore, appeal deserves to be allowed, and the respondent should be convicted for the aforesaid offences.
129. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that after appreciating the evidence on record, the Designated Court reached the conclusion that even if the respondent had participated in landing and transportation of contraband, he had no knowledge about the nature of those articles. In the absence of any knowledge that those smuggled goods contained arms and ammunition, conviction under the provisions of TADA is not permissible. The respondent had already served 3 years imprisonment and paid a fine of Rs.25,000/-. Thus, no further consideration of the appeal is required. Thus, the appeal is liable to be dismissed.
130. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Evidence against the respondent:
Confession of Khalil Ahmed Sayed Ali Nasir (A-42):
131. He disclosed about the incident of landing and transportation on 3.2.1993 that the goods were brought by the truck by Rashid Umar Alware (A-27) who was driving the truck himself. In the said truck other persons namely Abdul Salam Hishamuddin Nazir, Bashir Fakji, Sharif Khan Abbas Adhikari (A-60), Muzammil Umar Kadri and Azimbhai Pardesi were sitting.
Confession of Tulsi Ram Dhondu Surve (A-62):
132. He was the employee at the Wangni Tower. He disclosed that he knew respondent Sharif Khan Abbas Adhikari (A-60), resident of Mhasla and he was the person who brought Dawood @ Dawood Taklya Mohammed Phanse (A-14) to him 1 years ago. They had persuaded him (A-62) to help in loading and unloading the smuggled silver and other goods in the tower for a handsome consideration. So far as the relevant incident is concerned, he disclosed that some of the persons including Sharif Khan Abbas Adhikari (A-60) came there with contraband at about midnight and thereafter the goods were loaded in the tempo from the truck. They paid Rs.1,000/- each to the said accused, Harishchandra Surve (PW-108), and Vijay Govind More (PW-137), the other employees at the Wangni Tower. He had been informed by Sharif Khan Abbas Adhikari (A-60) regarding the landing and bringing the goods by Dawood Phanse (A-14) and that is why the accused made all the arrangements.
Deposition of Harish Chandra Surve (PW-108):
133. He corroborated the version given by Tulsi Ram Dhondu Surve (A- 62) and regarding the said incident he disclosed that he knew all the co-accused/conspirators. The truck loaded with silver bricks came there and the bricks were shifted in the tempo and jeep. Thereafter all the vehicles left the tower. The deal was arranged by Tulsi Ram Dhondu Surve (A-62) on consideration fixed by Dawood Phanse (A-14). The truck of Rashid Umar Alware (A-27) was carrying silver bricks and wooden boxes of square shape. Silver bricks were wrapped in a gunny cloth. Persons in Maruti car were having small size guns. He had not seen the weapons with the persons who had accompanied the jeep and tempo. He further identified Sharif Khan Abbas Adhikari (A-60) in court to be the person who was in the jeep.
Deposition of Vijay Govind More (PW-137):
134. In respect of the incident dated 3.2.1993, he deposed that Tiger Memon (AA), Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A- 60), Abdul Gharatkar, Dadamiya Parkar (A-17), Sarfaraz Phanse (A-55) were amongst the said persons. He further deposed that Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A-60) and others were the occupants of one of the jeep and he also identified Sharif Khan Abbas Adhikari (A-60) in court.
135. The Designated court after appreciating the entire evidence on record came to the following conclusion:
Now carefully considering relevant material from confession of A-42 and A-62 about which excerpts are recited hereinabove it must be said that though same reveals involvement of A-60 in relevant landing operation still close look at the same and so also other evidence does not reveal any material indicating that A-60 was aware of nature of material which were smuggled during said operation. The same is obvious as hardly there is any material revealing that A-60 was present alongwith Tiger Memon when packets of goods were opened by Tiger Memon on coast. Similarly, evidence is contrary regarding presence of A-60 at Wangni Tower when goods were exchanged. Having regard to same it will be extremely difficult to hold A-60 guilty for offence under Section 3(3) TADA.
Having regard to fact that prosecution evidence about which detail dilation is made while recording the reasoning regarding the conclusion arrived about guilt of aforesaid accused and the same amongst other having denoted that A-33 and A-56 were owners of the boat which was used in contraband operation, both of them being involved twice in such operation, and even prior to same themselves and so also A-19 being engaged in such activities, the quantity of goods which was transported by A-19 being 48 cartons i.e. approximately 960 Kg. allegedly being silver as told to them, confession of A-14 revealing amount of Rs.24,000/- being paid to boatmen, A-27 having received an amount of Rs.20,000/- for transportation effected by him. A-60 also being involved twice in transportation operation as disclosed from the confession of A-62 and A-42 and even prior to same himself being involved in smuggling operations are the factors for not accepting submissions advanced for showing leniency on the count of financial condition etc. Needless to add that in the event of crimes being committed for earning handsome profits then hardly there would be any scope to show leniency on said count as the same will have an effect of causing erroneous impression of culprits being permitted to acquire the profits by commission of crimes. Needless to add that the same would warrant of levying a sentence of an appropriate amount of fine in addition to the sentence of rigorous imprisonment.
(Emphasis added)
136. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.
137. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we agree with the reasoning given by the Special Judge. No interference is warranted on the facts of the case. The appeal is accordingly dismissed.
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