Uttam Shantaram Potdar Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1610 of 2011
And
State of Maharashtra v. Uttam Shantaram Potdar
Criminal Appeal No. 398 of 2011
And
State of Maharashtra v. Uttam Shantaram Potdar
Criminal Appeal No. 398 of 2011
Petitioner: Uttam Shantaram Potdar
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1610 of 2011
And
State of Maharashtra v. Uttam Shantaram Potdar
Criminal Appeal No. 398 of 2011
And
State of Maharashtra v. Uttam Shantaram Potdar
Criminal Appeal No. 398 of 2011
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), 5, 6 – Appellant a close associate of Tiger Memon (AA) and his associates – Prime work of landing and transportation – Also involved in conspiracy – Confessional statements of appellant/co-accused and depositions of various witnesses proved that appellant knew Mohd. Dossa (AA), was involved in criminal activities and he was working for him – To facilitate the landing of arms ammunitions, he used to bribe custom/police officials – He paid bribes, made arrangements for boats and coolies for landing which was scheduled for 09.02.1993 – Participated in getting the goods cleared, when intercepted by police – A-133 in his confessional statement admitted having overheard appellant discussing contents of contraband – Designated Court convicted him under Sections 3(3) and 6 of TADA, but acquitted him of the charges of conspiracy. Held act committed by Appellant with the knowledge about arms and ammunitions and their quantity makes him liable for commission of offence under Sections 3(3) and 6 of TADA. Further, fact that he was a close associate of Tiger Memon (AA) and the manner in which he dealt with officials for facilitating the landing of arms and ammunitions, warrants his conviction for conspiracy also.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6 – Appellant a close associate of Tiger Memon (AA) and his associates – Prime work of landing and transportation – Also involved in conspiracy – Confessional statements of appellant/co-accused and depositions of various witnesses proved that appellant knew Mohd. Dossa (AA), was involved in criminal activities and he was working for him – To facilitate the landing of arms ammunitions, he used to bribe custom/police officials – He paid bribes, made arrangements for boats and coolies for landing which was scheduled for 09.02.1993 – Participated in getting the goods cleared, when intercepted by police – A-133 in his confessional statement admitted having overheard appellant discussing contents of contraband – Designated Court convicted him under Sections 3(3) and 6 of TADA, but acquitted him of the charges of conspiracy. Held act committed by Appellant with the knowledge about arms and ammunitions and their quantity makes him liable for commission of offence under Sections 3(3) and 6 of TADA. Further, fact that he was a close associate of Tiger Memon (AA) and the manner in which he dealt with officials for facilitating the landing of arms and ammunitions, warrants his conviction for conspiracy also.
Held:
A conjoint reading of the confessional statement and deposition of witnesses reveal that appellant (A-30) had been an associate of Mohd. Dossa (AA) and was aware of the fact that Mohd. Dossa (AA) was involved in criminal activities. A-30 was also associate of co-accused Mechanic Chacha, Shabbir, Salim, Feroz and Jamir Sayyed Kadri. A-30 has been working as a landing agent for Mohd. Dossa and others by arranging boats and coolies. A-30 was called to Mhasla on 4.12.1992 wherein he disclosed about the previous day landing to R.K. Singh (A-102), Custom Officer. Subsequent to the said meeting, A-30 received Rs.6.25 lacs from A-136 and paid Rs.1 lac to Mhasla Custom staff, Rs.1.5 lacs to Shrivardhan Custom staff, Rs.1.25 lac to R.K. Singh, Custom Officer. A-30 made arrangements for boats and coolies for another landing scheduled for 9.2.1993 and went to Dighi Jetty on his motorcycle on 9.2.1993. He met Custom Inspector Gurav (A-82) and started driving jeep of Gurav. When the trucks carrying contraband smuggled goods were intercepted by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that the money for earlier landing had been paid to Mali Havaldar who was also member of that police team. It was in his presence that Mechanic Chacha (A-136) offered Rs.10 lacs to PSI Patil and as they did not have money, they gave him 5 silver bricks as a security. A-30 alongwith others shifted 170 bricks in the cavity of two trucks of Bombay and 80 silver bricks were transferred from one truck to another at the residence of Shabbir (AA). He also went to the residence of Shabbir. A-30 left the message at Shrivardhan Police Station that he would come with money on the night of 10.2.1993. In his presence Rs.2 lacs were paid to Patil, PSI at Shrivardhan Naka and Rs.5 lacs were paid to Havaldars. A- 30 received Rs.3 lacs from Feroz on the same night to hand it over to Custom Officer of Alibagh and he handed it over to R.K. Singh and Sayyed. (Para 91)
Considering the event of interception of the said goods by the police and the presence and involvement of the appellant (A-30) in negotiations with the police for clearing the said smuggled goods, it is difficult to believe, that at the said time, the appellant (A-30) did not have knowledge regarding the contraband material. (Para 93)
It is difficult to accept, that in the said circumstances the appellant (A-30) was unaware of the nature of the smuggled goods. The acts that were further committed by the appellant (A- 30), were in the nature of continuing his job in effecting the landing of silver, and the same may not make him liable as a party to the conspiracy to commit terrorist acts. However, certain other acts that were committed by him (A-30), with the express knowledge that the contraband material did in fact contain arms and ammunition, would make him liable for commission of offence under Section 3(3) TADA. Furthermore, the quantity of arms and ammunition, and the further acts committed by the appellant would also make him liable for commission of offence under Section 6 TADA. (Para 93.3)
The evidence on record made it crystal clear that A-30 was not only a close associate of Tiger Memon (AA) and acting as a landing agent, but a man of confidence who could negotiate with the police and customs officials to fix the amount of bribe for facilitating the smuggling and transportation of the smuggled contraband. He was a person who had negotiated with the police at Gondghar Phata. He had been fully aware of the nature of contraband, and in spite of coming to know that the contraband contained arms, ammunition and explosives, he continued to help the smugglers. It is also evident that he had close association with Jaywant Keshav Gurav (A-82), officer of the customs department, who had been helping the smugglers by taking a bribe through A- 30. Therefore, in view of the above, we do not concur with the findings of fact recorded by the learned Designated Court that A- 30 could not be convicted for conspiracy. (Para 98)
JUDGEMENT:
Dr. B.S. Chauhan, J.
71. Criminal Appeal No.1610 of 2011 has been preferred against the judgment and order dated 23.5.2007 passed by Special Judge of the Designated Court under the TADA, for Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, by which the appellant has been convicted under Sections 3(3) and 6 TADA.
72. Criminal Appeal No.398 of 2011 has been filed by the State against the order dated 2.8.2007 by which A-30 stood acquitted of the first charge of larger conspiracy.
73. Fact and circumstances giving rise to these appeals are that :
A. In addition to the main charge of conspiracy, the appellant (A-30) was charged for overt acts by abetting and knowingly and intentionally facilitating the smuggling the landing of arms, ammunition, hand grenades and explosives in India at Dighi, Mhasla, District Raigad on 9.1.1993. This was done by providing his truck No. MH-06-5533 and mobilizing men, material and resources in connivance with the customs officers and police officials by bribing them and facilitating the safe movements of arms, ammunition and explosives by piloting the motor truck, thus the offences punishable under Section 3(3) TADA and under Section 6 TADA have been committed.
B. Further, the provisions of the Arms Act, the Arms Rules, the Explosive Act, 1884, Explosive Substance Act, 1908 and the Explosive Rules, have also been contravened, by facilitating the smuggling, landing and transportation of arms etc.
C. After the conclusion of the trial, appellant (A-30) was acquitted of the umbrella charge of conspiracy including of the charge under Section 120B IPC etc. However, he was convicted for charges under Sections 3(3) and 6 TADA. He has been awarded a sentence to undergo R.I. for 10 years alongwith a fine of Rs.50,000/- and in default of payment of fine, to further suffer RI for one year under Section 3(3), and to undergo 14 years R.I. alongwith a fine of rupees one lakh and in default of payment of fine, to further suffer RI for three years under Section 6 TADA.
74. It is pertinent to mention that the appellant (A-30) has already served 14 years imprisonment, and has also deposited the fine. However, the appeal has been preferred by him only to get an acquittal, so as to remove the stigma attached to being convicted for offences as mentioned hereinabove. The State has also filed appeal against his acquittal of the first charge of conspiracy.
75. Shri C.U. Singh, learned counsel appearing for the appellant has submitted that the appellant has wrongly been enroped in the crime. The evidence on record falls short to prove the charges against him. The confessional statements are not admissible as had not been recorded in accordance with law. Thus, the appeal deserves to be allowed, and the stigma of the appellant is to be removed.
76. Shri Mukul Gupta, learned senior counsel appearing for the State has opposed the appeal contending that the appellant was a close associate of Tiger Memon (AA) and his associates. He was involved not only in landing and transportation, but in the larger conspiracy. Thus, the State has filed appeal against the order of his acquittal on the charge of conspiracy. Therefore, the appeal filed by the appellant is liable to be dismissed, and appeal filed by the State deserves to be allowed.
77. We have heard learned counsel for the parties and perused the record.
78. Evidence against the Appellant (A-30):
(a) Confessional statement of appellant (A-30)
(b) Confessional statement of Janardhan Pandurang Gambas (A- 81)
(c) Confessional statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Mohd. Sultan Sayyed (A-90)
(e) Confessional statement of S.S. Talwadekar (A-113)
(f) Confessional statement of Mohd. Kasam Lajpuria @Mechanic Chacha (A-136)
(g) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(h) Confessional statement of Salim Kutta (A-134)
(i) Confessional statement of Faki Ali Faki Ahmed (A-74)
(j) Deposition of Dilip Pansare (PW-97)
(k) Deposition of Vyankatesh Hirba (PW-588)
(l) Deposition of Dinesh Nakti (PW-95)
Confessional statement of appellant (A-30):
79. The evidence against the appellant (A-30) is his own confession made on 12th/15th of July, 1993. He has stated throughout that he was a landing agent and involved in smuggling. However, he had no knowledge that arms were being smuggled and he participated in the same, taking it to be smuggling of silver only. The confessional statements of co-accused do not speak of the knowledge of the appellant (A-30) regarding the smuggling of arms and they too, have only deposed about smuggling of silver.
79.1 In view of the discussion in Criminal Appeal no.1728 of 2007, the date of the recording of the confession has no bearing so long as the accused are being tried for the same crime in the same trial. After the amendment, confessional statement of co-accused Jamir Sayyed Ismail Kadri (A-133), Salim Kutta (A-134) and Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133) stated in his confession on the basis of hearsay that his brother Shabbir had told him that arms would be smuggled into the city, and that the same was also within the knowledge of the appellant (A-30).
79.2 His confessional statement was recorded by A.K. Chandgude, Deputy S.P (PW-670) wherein the appellant (A-30) has stated that he was well acquainted with other smugglers like Mohd. Dossa (AA) and Mechanic Chacha (A-136), and he had been acting as a landing agent in smuggling activities for these smugglers, for a long time. He (A-30) had also participated alongwith the other co-accused like Salim Kutta (A-134) and Mechanic Chacha (A-136) in the smuggling of contraband and in providing landing and transportation facilities on 3.12.1992.
79.3 On 4.12.1992, he was contacted by Assistant Collector (Customs) R.K. Singh (A-102) through a Customs Sepoy. On reaching there at 8.00 pm, R .K. Singh, Assistant Collector, Custom (A-102) called him in the cabin and asked about the landing that had been made on the previous day upon replying he was told to wait with Custom Inspector Gurav (A-82). He (A-30) went to Mohd. Dossa on 5.12.1992 and explained to him , and to Mechanic Chacha (A-136), the entire incident. Mechanic Chacha (A-136) gave him (A-30), some money to be paid to the Mhasla Custom Staff, the Shrivardhan Custom Staff, the Murud Custom Staff and also to R.K. Singh (A-102). On the same day he (A-30) handed over the money to some of them.
79.4 Subsequently, it was revealed that the rates that were to be paid to the police officers as well as the customs officers per landing were fixed, and were also revised from time to time, and the appellant (A-30) had been very much involved in making the payment.
79.5 Therefore, it is clear that he (A-30) enjoyed a higher status in the hierarchy of the gang of smugglers, and that he had been assigned an important role of negotiating with customs officers and police officers, to remove any hindrance in the said smuggling. It is also clear that payments were made through him (A-30).
79.6 The appellant (A-30) confessed, that on 9.1.1993 he, alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha (A-136) had participated in the landing of smuggled goods and when they were coming to Dighi Jetty, on the way he had also met Gurav (A-82), who was driving his jeep. Thereafter, their vehicles were intercepted by Patil (A-116) an Inspector, near Gondghar Phata. In order to negotiate a safe passage for the smuggled goods, Mechanic Chacha (A-136) offered him a sum of Rs.10 lakhs, and when they were asked about the contents of the wooden boxes, Mechanic Chacha (A-136) stated that the same contained watches. On the said day, they had no cash and, therefore, Mechanic Chacha (A-136) took out five silver bricks from the first truck and gave them to Shri Patil, SI of Shrivardhan. The appellant (A-30) drove Guravs jeep (A-82) and came to Kanghar. There they shifted 170 bricks in the cavities of two trucks from Bombay. After loading the smuggled goods in the truck, the appellant went to Shabbirs residence alongwith Salim Kutta (A-134), Feroz and the driver. They removed 80 bricks from the cavity of the first truck from Bombay, and placed them in this truck. The appellant (A-30) left a message at the residence of Patil (A-116), stating that he would come with money on the night of the 10th of the month. Thus, he (A-30) subsequently met the said S.I. and it was decided that he would pay a sum of Rs.5 lakhs to the Havaldars and Rs.2 lakhs to the SI separately, and the said amount was paid by the appellant (A-30).
79.7 Further, in his confessional statement he has revealed that the truck bearing No. MH-06-5533 which was used on 9.1.1993 did not belong to him. One Dilip Hegiste was the registered owner of the said vehicle.
79.8 Thus, it is clear that in his confessional statement, the appellant (A-30) does not say anything to the effect that he had no knowledge with respect to the smuggled arms.
Confessional statement of Janardhan Pandurang Gambas (A- 81):
80. In his confessional statement he has revealed the presence of the appellant (A-30) and also has deposed about his (A-30) participation in the landing and transportation of the smuggled goods. However, the goods were silver and gold, and it was the appellant (A-30) who had taken the said witness for the landing. He has stated that in addition to the silver and gold and rods kept in the gunny bags, there were 30 black military coloured boxes which were unloaded from the trawler and Mechanic Chacha (A-136) cautioned the labourer to handle the same with care, as the goods were made of glass.
Confessional statement of Jaywant Keshav Gurav (A-82):
81. He was working in the Customs Department at Mahad, and it was his job to prevent illegal smuggling along the sea coast and to nab the smugglers by gathering secret information against them, and further, to register cases against the smugglers. He (A-82) has stated that he had been helping smugglers by taking bribes and facilitating their landing and also the transportation of the smuggled goods. He had a settlement with Rahim Laundriwala that he would be paid Rs.1,60,000/- for silver landing and that the witness would be informed of such landings in advance. The appellant (A-30) had met him in June 1992 and told the witness that he was a landing agent working at Dighi Jetty and that he had informed him (A-82) that there would be landing at Dighi Jetty of silver, by Mohd. Dossa. The smuggled goods would come from Dubai and he (A-82) would be paid Rs.65,000/- for the said landing and appellant (A-30) had paid him this money after passing the said smuggled goods. This witness has corroborated the confessional statement of the appellant (A-30).
81.1 In respect of the incident dated 3.12.1992, i.e. his meeting with R.K. Singh, Assistant Collector, Customs (A-102) where he had bargained for a higher amount, as R.K. Singh (A-102) had told him (A-82) that he must go to the appellant (A-30) and bring back a sum of Rs.2.5 lakhs. After discussing the same with the appellant, he (A-82) went to Bombay and here he was paid Rs.2.5 lakhs which was to be paid to R.K. Singh (A-102) and Rs.1.5 lakhs was to be paid to the Superintendent. He collected this money and paid the same to the said officers.
81.2 In respect of the incident dated 9.1.1993 the witness revealed that he had been informed by R.K. Singh (A-102) that on the said day, Mohd. Dossa would smuggle the goods and that the landing would take place at Dighi Jetty and that he (A-82) must assist him. On that day, the appellant met this witness and informed him regarding the landing that would take place at the night at Dighi Jetty and has thus corroborated the confessional statement of the appellant (A-30) to the extent that they had in fact met in the said manner and that it was the appellant (A-30) who had negotiated with Patil (A-116). It has further been revealed that the appellant (A-30) had driven the car of A-82.
Confessional Statement of Mohd. Sultan Sayyed (A-90):
82. He is S.P. Raigad. In his confessional statement he has corroborated the version of events provided by the appellant, regarding the association of the smugglers with R.K. Singh, Assistant Collector (A-102) and making regular payments of illegal gratification. He has also stated that it was the appellant (A-30) who had been negotiating with the customs and police officers to revise the rates per landing. He (A-90) had accepted a bribe from the appellant (A-30) of Rs.1 lakh out of the total amount of Rs.3.5 lakhs that was paid by the appellant to R.K. Singh (A-102).
Confessional Statement of SS Talwadekar (A-113):
83. He has also corroborated the confessional statement of the appellant regarding silver at Shekhadi sea-coast, in collusion with the customs and police officers including J.K. Gurav (A-82). He has revealed that he had been facilitating the smugglers in their landings and transportation, and he has also accepted that he had received Rs.1.6 lakhs as was decided earlier for the first landing, for the second and also third landing. He has also admitted to accepting the said amount.
83.1 So far as the incident dated 9.1.1993 is concerned, he has named the appellant (A-30) who met him (A-113) and paid him a sum of Rs.40,000/- out of the settled amount of Rs.1.25 lakhs.
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136):
84. His statement corroborates the statement of Salim Kutta (A- 134) to the extent that Uttam Potdar (A-30) was the landing agent, and that the accused had (A-136) met Uttam Potdar (A-30) at Mhasla. He (A-136) further corroborated the version of events which included the interception of contraband by the Shrivardhan police; the negotiation of the bribe by Uttam Potdar (A-30); and further the giving of five silver bricks to the police as security.
Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
85. He has stated that he is the elder brother of Shabbir. He knew the appellant (A-30) who was at that time, working for Mohd. Dossa. During a marriage in his family on 10.1.1993 when a large number of his relatives were visiting, Salim Kutta (A-134) and his friends Feroz and his brother Shabbir had come to his house on a Yamaha Motor Cycle alongwith the appellant (A-30). The appellant (A-30) left after having a discussion with his brother, Shabbir. Shabbir told him (A-133) that silver and weapons would arrive at Dighi Jetty on that day, and this landing was to be supervised by the appellant (A-30). After some time, Shabbir and the other co-accused Salim (A-134), Feroz and the appellant (A- 30) started talking about the unloading of the goods to be brought, and after discussing the same for a while, the appellant (A-30) went out to make arrangements for the unloading of the concerned goods. It was on that day that he learnt that the goods were being sent by Mohd. Dossa.
85.1 On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz left for Dighi Jetty to unload the smuggled goods. He (A-133) stayed at home. They returned at 5 a.m. with three wooden boxes, which were kept by them in the hall of the house, and he then slept there. From their conversation, the witness learnt that there were 300 ingots of silver in total, each of them weighing 30 Kgs. and 19 ingots which could not be loaded in the truck, and the same were then hidden in the open land of one Subedar who was at the said time, living in Nairobi.
85.2 On 10.1.1993, the appellant (A-30) came to his house during the night and spoke to Salim (A-134) and Shabbir and went away. From their discussion he (A-133) understood that silver and weapons had been smuggled at Dighi Jetty on the previous night.
85.3 He (A-133), alongwith others, brought 19 silver ingots and 15/20 green coloured bags containing tin boxes in a bullock cart, and kept them in their house and then fell asleep. After about two days, Afzal Gadbad, who works in the office of Mohd. Dossa in Bombay, came there and took away the said silver ingots in a jeep. However, the tin boxes remained there. After about a month, upon being asked by Shabbir, the said tin boxes and bags were taken to the first floor of the house of Ali Mian Faki, which was in close proximity to their house. Janardhan Pandurang Gambas (A-81) who is a resident of that area, and a fisherman who had participated in the smuggling with Shabbir, the appellant (A-30) and Abdulla Surati told the witness that the smuggled goods also contained weapons alongwith silver ingots.
Confessional Statement of Salim Kutta (A-134):
86. He has corroborated the confessional statement of the appellant (A-30). However, he (A-134) did not say anything to show that the appellant (A-30) had knowledge regarding the contents of the boxes, particularly as regards the weapons. He stated that the appellant (A-30) was present during the landing at Dighi Jetty and had made arrangements for labour and a boat. After the loading of the landed goods on vehicles, the appellant (A- 30) had also participated in negotiations with the police upon being interception by them.
Confessional Statement of Faki Ali Faki Ahmed (A-74):
87. He (A-74) corroborated the fact that the appellant (A-30) was a landing agent and a resident of Mhasla, and that the appellant (A-30) was well acquainted with Shabbir and Jamir (A-133) who were involved in smuggling activities.
88. Deposition of Dilip Pansare (PW.97) – In his deposition, he reveals that he was a childhood friend of the appellant (A-30) and had been working in a government department. However, he had driven the truck containing smuggled goods. He has also deposed that upon interception by Inspector Patil (A-116), a discussion ensued for half an hour, amongst the appellant (A-30), Gurav (A-82), Shabbir Kadri and Inspector Patil (A-116). He identified the truck, though the owner and the driver of the truck were neither made accused, nor witnesses in this case.
89. Deposition of Vyankatesh Hirba (PW.588)- He was the officer who had effected the seizure of the Tempo bearing number MH-06-5533 on 12.4.93. The appellant (A-30) in his confession has stated that the said tempo was used to transport contraband items which were landed at Dighi Jetty.
90. Deposition of Dinesh Nakti (PW.95) speaks of silver ingots and wooden boxes. He identified the appellant in court
91. A conjoint reading of the confessional statement and deposition of witnesses reveal that appellant (A-30) had been an associate of Mohd. Dossa (AA) and was aware of the fact that Mohd. Dossa (AA) was involved in criminal activities. A-30 was also associate of co-accused Mechanic Chacha, Shabbir, Salim, Feroz and Jamir Sayyed Kadri. A-30 has been working as a landing agent for Mohd. Dossa and others by arranging boats and coolies. A-30 was called to Mhasla on 4.12.1992 wherein he disclosed about the previous day landing to R.K. Singh (A-102), Custom Officer. Subsequent to the said meeting, A-30 received Rs.6.25 lacs from A-136 and paid Rs.1 lac to Mhasla Custom staff, Rs.1.5 lacs to Shrivardhan Custom staff, Rs.1.25 lac to R.K. Singh, Custom Officer. A-30 made arrangements for boats and coolies for another landing scheduled for 9.2.1993 and went to Dighi Jetty on his motorcycle on 9.2.1993. He met Custom Inspector Gurav (A-82) and started driving jeep of Gurav. When the trucks carrying contraband smuggled goods were intercepted by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that the money for earlier landing had been paid to Mali Havaldar who was also member of that police team. It was in his presence that Mechanic Chacha (A-136) offered Rs.10 lacs to PSI Patil and as they did not have money, they gave him 5 silver bricks as a security. A-30 alongwith others shifted 170 bricks in the cavity of two trucks of Bombay and 80 silver bricks were transferred from one truck to another at the residence of Shabbir (AA). He also went to the residence of Shabbir. A-30 left the message at Shrivardhan Police Station that he would come with money on the night of 10.2.1993. In his presence Rs.2 lacs were paid to Patil, PSI at Shrivardhan Naka and Rs.5 lacs were paid to Havaldars. A- 30 received Rs.3 lacs from Feroz on the same night to hand it over to Custom Officer of Alibagh and he handed it over to R.K. Singh and Sayyed.
92. After appreciating the evidence on record, the learned Designated Court reached the following conclusions:
………However considering further events which had occurred at Gondghar Patta i.e. interception of goods by police, allowing the same to be further proceeded after negotiations with smugglers, presence of A-30 who was one of the main person, or effecting landing, his role in the said episode, it is difficult to perceive that at the said juncture A- 30 would not have gathered the knowledge of contraband material. Needless to add that in cases of conspiracy it is difficult to except to have direct evidence and the inference about certain aspects is required to be drawn from established facts & circumstances.
Thus having regard to all the aforesaid facets it is difficult to accept that at least at the said place A-30 would not have gathered the nature of contraband goods also sent along with smugglers. It is true that the said further acts committed by A- 30 being in the nature of continuing job for which he had agreed i.e. effecting the silver landing the same may not make him liable for being party to the conspiracy to commit the terrorist act or the larger conspiracy for which the charge at head 1st ly is framed. Such a conclusion is obvious as hardly there exists any other material denoting that alter completion of job of landing & transportation, A-30 having committed any act furthering object of ally conspiracy. However, still now the further act being committed by A-30 being with an expressed knowledge that the contraband material was containing arms & ammunitions he will be squarely liable for commission of offence u/s 3 (3) of TADA. Similarly the quantity of the said arms & ammunition and the further acts actually committed by A-30 would also make him liable for commission of offence u/s.6 TADA.
……..Thus considering the said aspect it will be extremely difficult to accept that policemen would not have been aware about the nature of said goods in trucks which were in the said trucks i.e. silver and arms & ammunitions as established by evidence. Such an inference is inevitable as such evidence pertaining to landing clearly denotes of the material being of two different categories i.e. boxes and bachkies i.e. bundles. Having regard to the same it is difficult to perceive that during inspection of trucks at least parcels from each category would not have been inspected by policemen.
……..Having regard to aforesaid even assuming that police party had permitted the said trucks to proceed away without inspection then also they cannot escape the liability arising out of said illegal omission committed by them. In view of the same the knowledge of the nature of contraband goods will be required to be presumed for them.
Now considering the liability of A-136 as revealed from the earlier discussion but without once again repeating the dilation made earlier it can be said that the same having revealed that A- 136 had become aware about the nature of goods after he was told regarding the same and the direction of accused Mustafa Dossa by A-134. As dilated earlier, it is clear that though A-136 had continued with the said operation i.e. the operation of smuggling for which he had agreed earlier and in the process having committed the offence u/s.3 (3) of TADA still he cannot be said to be guilty for the offence of conspiracy to which A-134 was said to be party. Needless to add that considering the acts committed by A-136, his liability remained confined to having committed the offence u/s.3(3) and Section 6 of TADA.
The case of A-30 also appears to be similar to that of A-136 i.e. himself being not aware since the beginning of the goods to be smuggled being arms & ammunitions and having acquired the knowledge about same during the midst of operation but in spite of the said knowledge having continued the said operation giving rise to the liability for commission of offence u/s. 3(3) & Section 6 of TADA. At the cost of repetition it will be required to be added that A-136 and A-30 having committed the relevant acts in the month of Jan., 1993 on the dates on which even Tiger Memon had not disclosed his intent regarding the places at which the explosions were to be committed in Bombay and themselves having not committed any act other than completing the smuggling operation for which they had agreed they cannot he held guilty for any offence of conspiracy though would he liable for commission of offences as stated aforesaid.
93. The confession of A-134 does not show that the appellant (A-30) was aware of the contents of the contraband goods were arms and ammunition, either prior to the landing or thereafter. However, considering the event of interception of the said goods by the police and the presence and involvement of the appellant (A-30) in negotiations with the police for clearing the said smuggled goods, it is difficult to believe, that at the said time, the appellant (A-30) did not have knowledge regarding the contraband material.
93.1 The confession of A-133 however reveals that he (A-133) had overheard the appellant (A-30) discussing the contents of the contraband after the items had landed.
93.2 In case of conspiracy, it is difficult to find direct evidence and thus, inference is required to be drawn from established facts and circumstances.
93.3 Hence, it is difficult to accept, that in the said circumstances the appellant (A-30) was unaware of the nature of the smuggled goods. The acts that were further committed by the appellant (A- 30), were in the nature of continuing his job in effecting the landing of silver, and the same may not make him liable as a party to the conspiracy to commit terrorist acts. However, certain other acts that were committed by him (A-30), with the express knowledge that the contraband material did in fact contain arms and ammunition, would make him liable for commission of offence under Section 3(3) TADA. Furthermore, the quantity of arms and ammunition, and the further acts committed by the appellant would also make him liable for commission of offence under Section 6 TADA.
94. The examination of the appellant (A-30) under Section 313 of Cr.P.C. reveals that he had assisted in the landing of goods at Dighi Jetty on 9.1.1993, and that he had taken the stand of being involved in the landings of silver even prior to the said event, and that he did not know the nature of the goods that were landed in the said landing. The evidence of PWs 95 and 97 corroborates the fact that landing had occurred at the said time and place. Their evidence reveals that the goods were packed in boxes, or in green coloured cloth bag that had been tied at the mouth, and that thus, they were not aware of the contents. They had acted at the behest of the appellant (A-30) for which they had received payment.
95. The appellant (A-30) was aware that the smuggled goods were arms and ammunition, and even after acquiring such knowledge, he had continued the landing of the said smuggled goods. This makes him liable for commission of offences under Section 3(3) and 6 TADA.
96. His (A-30) role is akin to that of Mechanic Chacha (A-136). Thus, we do not find any force in the appeal and it is accordingly dismissed.
97. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
98. The evidence on record made it crystal clear that A-30 was not only a close associate of Tiger Memon (AA) and acting as a landing agent, but a man of confidence who could negotiate with the police and customs officials to fix the amount of bribe for facilitating the smuggling and transportation of the smuggled contraband. He was a person who had negotiated with the police at Gondghar Phata. He had been fully aware of the nature of contraband, and in spite of coming to know that the contraband contained arms, ammunition and explosives, he continued to help the smugglers. It is also evident that he had close association with Jaywant Keshav Gurav (A-82), officer of the customs department, who had been helping the smugglers by taking a bribe through A- 30. Therefore, in view of the above, we do not concur with the findings of fact recorded by the learned Designated Court that A- 30 could not be convicted for conspiracy.
99. In the facts and circumstances, the appeal filed by the appellant (A-30) is dismissed, and appeal filed by the State through CBI is allowed. Appellant (A-30) is convicted for the offence under Charge I, and awarded the life imprisonment. The Designated Court is directed to take him into custody and send him to Jail to serve out the remaining sentence, if any.
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71. Criminal Appeal No.1610 of 2011 has been preferred against the judgment and order dated 23.5.2007 passed by Special Judge of the Designated Court under the TADA, for Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, by which the appellant has been convicted under Sections 3(3) and 6 TADA.
72. Criminal Appeal No.398 of 2011 has been filed by the State against the order dated 2.8.2007 by which A-30 stood acquitted of the first charge of larger conspiracy.
73. Fact and circumstances giving rise to these appeals are that :
A. In addition to the main charge of conspiracy, the appellant (A-30) was charged for overt acts by abetting and knowingly and intentionally facilitating the smuggling the landing of arms, ammunition, hand grenades and explosives in India at Dighi, Mhasla, District Raigad on 9.1.1993. This was done by providing his truck No. MH-06-5533 and mobilizing men, material and resources in connivance with the customs officers and police officials by bribing them and facilitating the safe movements of arms, ammunition and explosives by piloting the motor truck, thus the offences punishable under Section 3(3) TADA and under Section 6 TADA have been committed.
B. Further, the provisions of the Arms Act, the Arms Rules, the Explosive Act, 1884, Explosive Substance Act, 1908 and the Explosive Rules, have also been contravened, by facilitating the smuggling, landing and transportation of arms etc.
C. After the conclusion of the trial, appellant (A-30) was acquitted of the umbrella charge of conspiracy including of the charge under Section 120B IPC etc. However, he was convicted for charges under Sections 3(3) and 6 TADA. He has been awarded a sentence to undergo R.I. for 10 years alongwith a fine of Rs.50,000/- and in default of payment of fine, to further suffer RI for one year under Section 3(3), and to undergo 14 years R.I. alongwith a fine of rupees one lakh and in default of payment of fine, to further suffer RI for three years under Section 6 TADA.
74. It is pertinent to mention that the appellant (A-30) has already served 14 years imprisonment, and has also deposited the fine. However, the appeal has been preferred by him only to get an acquittal, so as to remove the stigma attached to being convicted for offences as mentioned hereinabove. The State has also filed appeal against his acquittal of the first charge of conspiracy.
75. Shri C.U. Singh, learned counsel appearing for the appellant has submitted that the appellant has wrongly been enroped in the crime. The evidence on record falls short to prove the charges against him. The confessional statements are not admissible as had not been recorded in accordance with law. Thus, the appeal deserves to be allowed, and the stigma of the appellant is to be removed.
76. Shri Mukul Gupta, learned senior counsel appearing for the State has opposed the appeal contending that the appellant was a close associate of Tiger Memon (AA) and his associates. He was involved not only in landing and transportation, but in the larger conspiracy. Thus, the State has filed appeal against the order of his acquittal on the charge of conspiracy. Therefore, the appeal filed by the appellant is liable to be dismissed, and appeal filed by the State deserves to be allowed.
77. We have heard learned counsel for the parties and perused the record.
78. Evidence against the Appellant (A-30):
(a) Confessional statement of appellant (A-30)
(b) Confessional statement of Janardhan Pandurang Gambas (A- 81)
(c) Confessional statement of Jaywant Keshav Gurav (A-82)
(d) Confessional statement of Mohd. Sultan Sayyed (A-90)
(e) Confessional statement of S.S. Talwadekar (A-113)
(f) Confessional statement of Mohd. Kasam Lajpuria @Mechanic Chacha (A-136)
(g) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(h) Confessional statement of Salim Kutta (A-134)
(i) Confessional statement of Faki Ali Faki Ahmed (A-74)
(j) Deposition of Dilip Pansare (PW-97)
(k) Deposition of Vyankatesh Hirba (PW-588)
(l) Deposition of Dinesh Nakti (PW-95)
Confessional statement of appellant (A-30):
79. The evidence against the appellant (A-30) is his own confession made on 12th/15th of July, 1993. He has stated throughout that he was a landing agent and involved in smuggling. However, he had no knowledge that arms were being smuggled and he participated in the same, taking it to be smuggling of silver only. The confessional statements of co-accused do not speak of the knowledge of the appellant (A-30) regarding the smuggling of arms and they too, have only deposed about smuggling of silver.
79.1 In view of the discussion in Criminal Appeal no.1728 of 2007, the date of the recording of the confession has no bearing so long as the accused are being tried for the same crime in the same trial. After the amendment, confessional statement of co-accused Jamir Sayyed Ismail Kadri (A-133), Salim Kutta (A-134) and Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133) stated in his confession on the basis of hearsay that his brother Shabbir had told him that arms would be smuggled into the city, and that the same was also within the knowledge of the appellant (A-30).
79.2 His confessional statement was recorded by A.K. Chandgude, Deputy S.P (PW-670) wherein the appellant (A-30) has stated that he was well acquainted with other smugglers like Mohd. Dossa (AA) and Mechanic Chacha (A-136), and he had been acting as a landing agent in smuggling activities for these smugglers, for a long time. He (A-30) had also participated alongwith the other co-accused like Salim Kutta (A-134) and Mechanic Chacha (A-136) in the smuggling of contraband and in providing landing and transportation facilities on 3.12.1992.
79.3 On 4.12.1992, he was contacted by Assistant Collector (Customs) R.K. Singh (A-102) through a Customs Sepoy. On reaching there at 8.00 pm, R .K. Singh, Assistant Collector, Custom (A-102) called him in the cabin and asked about the landing that had been made on the previous day upon replying he was told to wait with Custom Inspector Gurav (A-82). He (A-30) went to Mohd. Dossa on 5.12.1992 and explained to him , and to Mechanic Chacha (A-136), the entire incident. Mechanic Chacha (A-136) gave him (A-30), some money to be paid to the Mhasla Custom Staff, the Shrivardhan Custom Staff, the Murud Custom Staff and also to R.K. Singh (A-102). On the same day he (A-30) handed over the money to some of them.
79.4 Subsequently, it was revealed that the rates that were to be paid to the police officers as well as the customs officers per landing were fixed, and were also revised from time to time, and the appellant (A-30) had been very much involved in making the payment.
79.5 Therefore, it is clear that he (A-30) enjoyed a higher status in the hierarchy of the gang of smugglers, and that he had been assigned an important role of negotiating with customs officers and police officers, to remove any hindrance in the said smuggling. It is also clear that payments were made through him (A-30).
79.6 The appellant (A-30) confessed, that on 9.1.1993 he, alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha (A-136) had participated in the landing of smuggled goods and when they were coming to Dighi Jetty, on the way he had also met Gurav (A-82), who was driving his jeep. Thereafter, their vehicles were intercepted by Patil (A-116) an Inspector, near Gondghar Phata. In order to negotiate a safe passage for the smuggled goods, Mechanic Chacha (A-136) offered him a sum of Rs.10 lakhs, and when they were asked about the contents of the wooden boxes, Mechanic Chacha (A-136) stated that the same contained watches. On the said day, they had no cash and, therefore, Mechanic Chacha (A-136) took out five silver bricks from the first truck and gave them to Shri Patil, SI of Shrivardhan. The appellant (A-30) drove Guravs jeep (A-82) and came to Kanghar. There they shifted 170 bricks in the cavities of two trucks from Bombay. After loading the smuggled goods in the truck, the appellant went to Shabbirs residence alongwith Salim Kutta (A-134), Feroz and the driver. They removed 80 bricks from the cavity of the first truck from Bombay, and placed them in this truck. The appellant (A-30) left a message at the residence of Patil (A-116), stating that he would come with money on the night of the 10th of the month. Thus, he (A-30) subsequently met the said S.I. and it was decided that he would pay a sum of Rs.5 lakhs to the Havaldars and Rs.2 lakhs to the SI separately, and the said amount was paid by the appellant (A-30).
79.7 Further, in his confessional statement he has revealed that the truck bearing No. MH-06-5533 which was used on 9.1.1993 did not belong to him. One Dilip Hegiste was the registered owner of the said vehicle.
79.8 Thus, it is clear that in his confessional statement, the appellant (A-30) does not say anything to the effect that he had no knowledge with respect to the smuggled arms.
Confessional statement of Janardhan Pandurang Gambas (A- 81):
80. In his confessional statement he has revealed the presence of the appellant (A-30) and also has deposed about his (A-30) participation in the landing and transportation of the smuggled goods. However, the goods were silver and gold, and it was the appellant (A-30) who had taken the said witness for the landing. He has stated that in addition to the silver and gold and rods kept in the gunny bags, there were 30 black military coloured boxes which were unloaded from the trawler and Mechanic Chacha (A-136) cautioned the labourer to handle the same with care, as the goods were made of glass.
Confessional statement of Jaywant Keshav Gurav (A-82):
81. He was working in the Customs Department at Mahad, and it was his job to prevent illegal smuggling along the sea coast and to nab the smugglers by gathering secret information against them, and further, to register cases against the smugglers. He (A-82) has stated that he had been helping smugglers by taking bribes and facilitating their landing and also the transportation of the smuggled goods. He had a settlement with Rahim Laundriwala that he would be paid Rs.1,60,000/- for silver landing and that the witness would be informed of such landings in advance. The appellant (A-30) had met him in June 1992 and told the witness that he was a landing agent working at Dighi Jetty and that he had informed him (A-82) that there would be landing at Dighi Jetty of silver, by Mohd. Dossa. The smuggled goods would come from Dubai and he (A-82) would be paid Rs.65,000/- for the said landing and appellant (A-30) had paid him this money after passing the said smuggled goods. This witness has corroborated the confessional statement of the appellant (A-30).
81.1 In respect of the incident dated 3.12.1992, i.e. his meeting with R.K. Singh, Assistant Collector, Customs (A-102) where he had bargained for a higher amount, as R.K. Singh (A-102) had told him (A-82) that he must go to the appellant (A-30) and bring back a sum of Rs.2.5 lakhs. After discussing the same with the appellant, he (A-82) went to Bombay and here he was paid Rs.2.5 lakhs which was to be paid to R.K. Singh (A-102) and Rs.1.5 lakhs was to be paid to the Superintendent. He collected this money and paid the same to the said officers.
81.2 In respect of the incident dated 9.1.1993 the witness revealed that he had been informed by R.K. Singh (A-102) that on the said day, Mohd. Dossa would smuggle the goods and that the landing would take place at Dighi Jetty and that he (A-82) must assist him. On that day, the appellant met this witness and informed him regarding the landing that would take place at the night at Dighi Jetty and has thus corroborated the confessional statement of the appellant (A-30) to the extent that they had in fact met in the said manner and that it was the appellant (A-30) who had negotiated with Patil (A-116). It has further been revealed that the appellant (A-30) had driven the car of A-82.
Confessional Statement of Mohd. Sultan Sayyed (A-90):
82. He is S.P. Raigad. In his confessional statement he has corroborated the version of events provided by the appellant, regarding the association of the smugglers with R.K. Singh, Assistant Collector (A-102) and making regular payments of illegal gratification. He has also stated that it was the appellant (A-30) who had been negotiating with the customs and police officers to revise the rates per landing. He (A-90) had accepted a bribe from the appellant (A-30) of Rs.1 lakh out of the total amount of Rs.3.5 lakhs that was paid by the appellant to R.K. Singh (A-102).
Confessional Statement of SS Talwadekar (A-113):
83. He has also corroborated the confessional statement of the appellant regarding silver at Shekhadi sea-coast, in collusion with the customs and police officers including J.K. Gurav (A-82). He has revealed that he had been facilitating the smugglers in their landings and transportation, and he has also accepted that he had received Rs.1.6 lakhs as was decided earlier for the first landing, for the second and also third landing. He has also admitted to accepting the said amount.
83.1 So far as the incident dated 9.1.1993 is concerned, he has named the appellant (A-30) who met him (A-113) and paid him a sum of Rs.40,000/- out of the settled amount of Rs.1.25 lakhs.
Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136):
84. His statement corroborates the statement of Salim Kutta (A- 134) to the extent that Uttam Potdar (A-30) was the landing agent, and that the accused had (A-136) met Uttam Potdar (A-30) at Mhasla. He (A-136) further corroborated the version of events which included the interception of contraband by the Shrivardhan police; the negotiation of the bribe by Uttam Potdar (A-30); and further the giving of five silver bricks to the police as security.
Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):
85. He has stated that he is the elder brother of Shabbir. He knew the appellant (A-30) who was at that time, working for Mohd. Dossa. During a marriage in his family on 10.1.1993 when a large number of his relatives were visiting, Salim Kutta (A-134) and his friends Feroz and his brother Shabbir had come to his house on a Yamaha Motor Cycle alongwith the appellant (A-30). The appellant (A-30) left after having a discussion with his brother, Shabbir. Shabbir told him (A-133) that silver and weapons would arrive at Dighi Jetty on that day, and this landing was to be supervised by the appellant (A-30). After some time, Shabbir and the other co-accused Salim (A-134), Feroz and the appellant (A- 30) started talking about the unloading of the goods to be brought, and after discussing the same for a while, the appellant (A-30) went out to make arrangements for the unloading of the concerned goods. It was on that day that he learnt that the goods were being sent by Mohd. Dossa.
85.1 On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz left for Dighi Jetty to unload the smuggled goods. He (A-133) stayed at home. They returned at 5 a.m. with three wooden boxes, which were kept by them in the hall of the house, and he then slept there. From their conversation, the witness learnt that there were 300 ingots of silver in total, each of them weighing 30 Kgs. and 19 ingots which could not be loaded in the truck, and the same were then hidden in the open land of one Subedar who was at the said time, living in Nairobi.
85.2 On 10.1.1993, the appellant (A-30) came to his house during the night and spoke to Salim (A-134) and Shabbir and went away. From their discussion he (A-133) understood that silver and weapons had been smuggled at Dighi Jetty on the previous night.
85.3 He (A-133), alongwith others, brought 19 silver ingots and 15/20 green coloured bags containing tin boxes in a bullock cart, and kept them in their house and then fell asleep. After about two days, Afzal Gadbad, who works in the office of Mohd. Dossa in Bombay, came there and took away the said silver ingots in a jeep. However, the tin boxes remained there. After about a month, upon being asked by Shabbir, the said tin boxes and bags were taken to the first floor of the house of Ali Mian Faki, which was in close proximity to their house. Janardhan Pandurang Gambas (A-81) who is a resident of that area, and a fisherman who had participated in the smuggling with Shabbir, the appellant (A-30) and Abdulla Surati told the witness that the smuggled goods also contained weapons alongwith silver ingots.
Confessional Statement of Salim Kutta (A-134):
86. He has corroborated the confessional statement of the appellant (A-30). However, he (A-134) did not say anything to show that the appellant (A-30) had knowledge regarding the contents of the boxes, particularly as regards the weapons. He stated that the appellant (A-30) was present during the landing at Dighi Jetty and had made arrangements for labour and a boat. After the loading of the landed goods on vehicles, the appellant (A- 30) had also participated in negotiations with the police upon being interception by them.
Confessional Statement of Faki Ali Faki Ahmed (A-74):
87. He (A-74) corroborated the fact that the appellant (A-30) was a landing agent and a resident of Mhasla, and that the appellant (A-30) was well acquainted with Shabbir and Jamir (A-133) who were involved in smuggling activities.
88. Deposition of Dilip Pansare (PW.97) – In his deposition, he reveals that he was a childhood friend of the appellant (A-30) and had been working in a government department. However, he had driven the truck containing smuggled goods. He has also deposed that upon interception by Inspector Patil (A-116), a discussion ensued for half an hour, amongst the appellant (A-30), Gurav (A-82), Shabbir Kadri and Inspector Patil (A-116). He identified the truck, though the owner and the driver of the truck were neither made accused, nor witnesses in this case.
89. Deposition of Vyankatesh Hirba (PW.588)- He was the officer who had effected the seizure of the Tempo bearing number MH-06-5533 on 12.4.93. The appellant (A-30) in his confession has stated that the said tempo was used to transport contraband items which were landed at Dighi Jetty.
90. Deposition of Dinesh Nakti (PW.95) speaks of silver ingots and wooden boxes. He identified the appellant in court
91. A conjoint reading of the confessional statement and deposition of witnesses reveal that appellant (A-30) had been an associate of Mohd. Dossa (AA) and was aware of the fact that Mohd. Dossa (AA) was involved in criminal activities. A-30 was also associate of co-accused Mechanic Chacha, Shabbir, Salim, Feroz and Jamir Sayyed Kadri. A-30 has been working as a landing agent for Mohd. Dossa and others by arranging boats and coolies. A-30 was called to Mhasla on 4.12.1992 wherein he disclosed about the previous day landing to R.K. Singh (A-102), Custom Officer. Subsequent to the said meeting, A-30 received Rs.6.25 lacs from A-136 and paid Rs.1 lac to Mhasla Custom staff, Rs.1.5 lacs to Shrivardhan Custom staff, Rs.1.25 lac to R.K. Singh, Custom Officer. A-30 made arrangements for boats and coolies for another landing scheduled for 9.2.1993 and went to Dighi Jetty on his motorcycle on 9.2.1993. He met Custom Inspector Gurav (A-82) and started driving jeep of Gurav. When the trucks carrying contraband smuggled goods were intercepted by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that the money for earlier landing had been paid to Mali Havaldar who was also member of that police team. It was in his presence that Mechanic Chacha (A-136) offered Rs.10 lacs to PSI Patil and as they did not have money, they gave him 5 silver bricks as a security. A-30 alongwith others shifted 170 bricks in the cavity of two trucks of Bombay and 80 silver bricks were transferred from one truck to another at the residence of Shabbir (AA). He also went to the residence of Shabbir. A-30 left the message at Shrivardhan Police Station that he would come with money on the night of 10.2.1993. In his presence Rs.2 lacs were paid to Patil, PSI at Shrivardhan Naka and Rs.5 lacs were paid to Havaldars. A- 30 received Rs.3 lacs from Feroz on the same night to hand it over to Custom Officer of Alibagh and he handed it over to R.K. Singh and Sayyed.
92. After appreciating the evidence on record, the learned Designated Court reached the following conclusions:
………However considering further events which had occurred at Gondghar Patta i.e. interception of goods by police, allowing the same to be further proceeded after negotiations with smugglers, presence of A-30 who was one of the main person, or effecting landing, his role in the said episode, it is difficult to perceive that at the said juncture A- 30 would not have gathered the knowledge of contraband material. Needless to add that in cases of conspiracy it is difficult to except to have direct evidence and the inference about certain aspects is required to be drawn from established facts & circumstances.
Thus having regard to all the aforesaid facets it is difficult to accept that at least at the said place A-30 would not have gathered the nature of contraband goods also sent along with smugglers. It is true that the said further acts committed by A- 30 being in the nature of continuing job for which he had agreed i.e. effecting the silver landing the same may not make him liable for being party to the conspiracy to commit the terrorist act or the larger conspiracy for which the charge at head 1st ly is framed. Such a conclusion is obvious as hardly there exists any other material denoting that alter completion of job of landing & transportation, A-30 having committed any act furthering object of ally conspiracy. However, still now the further act being committed by A-30 being with an expressed knowledge that the contraband material was containing arms & ammunitions he will be squarely liable for commission of offence u/s 3 (3) of TADA. Similarly the quantity of the said arms & ammunition and the further acts actually committed by A-30 would also make him liable for commission of offence u/s.6 TADA.
……..Thus considering the said aspect it will be extremely difficult to accept that policemen would not have been aware about the nature of said goods in trucks which were in the said trucks i.e. silver and arms & ammunitions as established by evidence. Such an inference is inevitable as such evidence pertaining to landing clearly denotes of the material being of two different categories i.e. boxes and bachkies i.e. bundles. Having regard to the same it is difficult to perceive that during inspection of trucks at least parcels from each category would not have been inspected by policemen.
……..Having regard to aforesaid even assuming that police party had permitted the said trucks to proceed away without inspection then also they cannot escape the liability arising out of said illegal omission committed by them. In view of the same the knowledge of the nature of contraband goods will be required to be presumed for them.
Now considering the liability of A-136 as revealed from the earlier discussion but without once again repeating the dilation made earlier it can be said that the same having revealed that A- 136 had become aware about the nature of goods after he was told regarding the same and the direction of accused Mustafa Dossa by A-134. As dilated earlier, it is clear that though A-136 had continued with the said operation i.e. the operation of smuggling for which he had agreed earlier and in the process having committed the offence u/s.3 (3) of TADA still he cannot be said to be guilty for the offence of conspiracy to which A-134 was said to be party. Needless to add that considering the acts committed by A-136, his liability remained confined to having committed the offence u/s.3(3) and Section 6 of TADA.
The case of A-30 also appears to be similar to that of A-136 i.e. himself being not aware since the beginning of the goods to be smuggled being arms & ammunitions and having acquired the knowledge about same during the midst of operation but in spite of the said knowledge having continued the said operation giving rise to the liability for commission of offence u/s. 3(3) & Section 6 of TADA. At the cost of repetition it will be required to be added that A-136 and A-30 having committed the relevant acts in the month of Jan., 1993 on the dates on which even Tiger Memon had not disclosed his intent regarding the places at which the explosions were to be committed in Bombay and themselves having not committed any act other than completing the smuggling operation for which they had agreed they cannot he held guilty for any offence of conspiracy though would he liable for commission of offences as stated aforesaid.
93. The confession of A-134 does not show that the appellant (A-30) was aware of the contents of the contraband goods were arms and ammunition, either prior to the landing or thereafter. However, considering the event of interception of the said goods by the police and the presence and involvement of the appellant (A-30) in negotiations with the police for clearing the said smuggled goods, it is difficult to believe, that at the said time, the appellant (A-30) did not have knowledge regarding the contraband material.
93.1 The confession of A-133 however reveals that he (A-133) had overheard the appellant (A-30) discussing the contents of the contraband after the items had landed.
93.2 In case of conspiracy, it is difficult to find direct evidence and thus, inference is required to be drawn from established facts and circumstances.
93.3 Hence, it is difficult to accept, that in the said circumstances the appellant (A-30) was unaware of the nature of the smuggled goods. The acts that were further committed by the appellant (A- 30), were in the nature of continuing his job in effecting the landing of silver, and the same may not make him liable as a party to the conspiracy to commit terrorist acts. However, certain other acts that were committed by him (A-30), with the express knowledge that the contraband material did in fact contain arms and ammunition, would make him liable for commission of offence under Section 3(3) TADA. Furthermore, the quantity of arms and ammunition, and the further acts committed by the appellant would also make him liable for commission of offence under Section 6 TADA.
94. The examination of the appellant (A-30) under Section 313 of Cr.P.C. reveals that he had assisted in the landing of goods at Dighi Jetty on 9.1.1993, and that he had taken the stand of being involved in the landings of silver even prior to the said event, and that he did not know the nature of the goods that were landed in the said landing. The evidence of PWs 95 and 97 corroborates the fact that landing had occurred at the said time and place. Their evidence reveals that the goods were packed in boxes, or in green coloured cloth bag that had been tied at the mouth, and that thus, they were not aware of the contents. They had acted at the behest of the appellant (A-30) for which they had received payment.
95. The appellant (A-30) was aware that the smuggled goods were arms and ammunition, and even after acquiring such knowledge, he had continued the landing of the said smuggled goods. This makes him liable for commission of offences under Section 3(3) and 6 TADA.
96. His (A-30) role is akin to that of Mechanic Chacha (A-136). Thus, we do not find any force in the appeal and it is accordingly dismissed.
97. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
98. The evidence on record made it crystal clear that A-30 was not only a close associate of Tiger Memon (AA) and acting as a landing agent, but a man of confidence who could negotiate with the police and customs officials to fix the amount of bribe for facilitating the smuggling and transportation of the smuggled contraband. He was a person who had negotiated with the police at Gondghar Phata. He had been fully aware of the nature of contraband, and in spite of coming to know that the contraband contained arms, ammunition and explosives, he continued to help the smugglers. It is also evident that he had close association with Jaywant Keshav Gurav (A-82), officer of the customs department, who had been helping the smugglers by taking a bribe through A- 30. Therefore, in view of the above, we do not concur with the findings of fact recorded by the learned Designated Court that A- 30 could not be convicted for conspiracy.
99. In the facts and circumstances, the appeal filed by the appellant (A-30) is dismissed, and appeal filed by the State through CBI is allowed. Appellant (A-30) is convicted for the offence under Charge I, and awarded the life imprisonment. The Designated Court is directed to take him into custody and send him to Jail to serve out the remaining sentence, if any.
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