Ibrahim Musa Chauhan @ Baba Chauhan Vs. State of Maharashtra [March 21, 2013]
2013 Latest Caselaw 216 SC

Ibrahim Musa Chauhan @ Baba Chauhan Vs. The State of Maharashtra

[Criminal Appeal No. 555 of 2012]

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Ibrahim Musa Chauhan @ Baba Chauhan Vs. State of Maharashtra

[Criminal Appeal No. 555 of 2012]

Dr. B.S. Chauhan, J:

1. This appeal has been preferred against the judgments and orders dated 29.11.2006 and 6.6.2007 passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the `TADA') in the Bombay Blast Case No. 1/1993, by which the appellant (A-41) has been convicted under Sections 3(3), 5 and 6 TADA, as well as under Sections 3 and 7 read Section 25(1-A) (1-B) (a) of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act'), Section 4(b) of the Explosive Substances Act, 1908 (hereinafter referred to as the 'Act 1908), and Section 9-B(1) (b) of the Explosives Act, 1884 (hereinafter referred to as the 'Act 1884').

2. Facts and circumstances giving rise to this appeal are that:

A. As all the main factual and legal issues involved in this appeal have already been discussed by us and determined in the main connected appeal i.e. Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI (Criminal Appeal No.1728 of 2007), there is thus, no occasion for us to repeat the same.

B. The Bombay Blasts occurred on 12.3.1993, in which 257 persons lost their lives and 713 were injured. In addition thereto, there was loss of property worth several crores. The Bombay police investigated the said matter at the initial stage, but subsequently the investigation of the same was entrusted to the Central Bureau of Investigation (hereinafter referred to as the 'CBI'), and then upon conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Among the accused persons against whom a chargesheet was filed, 40 accused could not be put to trial as they were absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Furthermore, the Designated Court discharged 2 accused during trial, and the remaining persons, including the appellant (A-41) stood convicted.

C. A common charge of conspiracy was framed against all the coconspirators including the appellant. The relevant portion of the said charge is reproduced hereunder: "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.), Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e.

Hindus and Muslims by using bombs, dynamites, handgrenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire- arms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts.

To harbour and conceal terrorists/coconspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that ?on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santa Cruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza

Theatre and in lobbing handgrenades at Macchimar Hindu Colony. Mahirn and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at 'Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. in Greater Bombay. And thereby committed offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC and offences under Sections 3 and 7 read Sections 25 (1-A), (I- B)(a) of the Arms Act 1959, Sections 9B (l)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and in my cognizance."

D. Additionally, he has been charged for abetting and facilitating acts that were preparatory in nature, for the terrorist acts, by acquiring and distributing AK-56 rifles in the city of Bombay and its suburbs, their magazines, ammunition and also hand grenades to co- accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the instance of Anis Ibrahim Kaskar, an Absconding Accused (hereinafter referred to as 'AA'), brother of notorious smuggler Dawood Ibrahim, and Abu Salim for committing the terrorist acts punishable under Section 3(3) TADA.

E. The appellant (A-41) was also charged , being in the unauthorised possession of one AK 56 rifle, 635 rounds of ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as the same were recovered in the notified area at his instance, and thus he has been charged under Section 5 TADA. F. The appellant was further charged under Section 6 TADA, Sections 3 & 7 read Section 25(1-A), (1-B)(a) of the Arms Act, Section 4(b) of the Act 1908 and Section 9-B(1)(b) of the Act 1884, for unauthorisedly being in possession of the aforesaid arms the intention to aid terrorist acts. G. The prosecution has examined a large number of witnesses and produced a large number of documents to prove its case, and upon conclusion of the trial, the Designated Court acquitted the appellant of the umbrella charge of conspiracy i.e. charge No. 1. However, he was convicted for the second charge i.e. smaller conspiracy under Section 3(3) TADA and was awarded a sentence of 8 years RI along a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of three years; under Section 5 TADA, he was sentenced to suffer RI for 10 years along a fine of Rs.50,000/-, and in default of payment of fine, to suffer further RI for a period of one year; under Section 6 TADA, he was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of 3 years; under Section 4(b) of the Act 1908, he was sentenced to suffer RI for four years along a fine of Rs.25,000/- and in default of payment of fine, to suffer further RI for a period of 6 months, under Section 9-B (1)(b) of the Act 1884, he was sentenced to suffer RI for one year along a fine of Rs. 2,000/- and in default of payment of fine, to suffer further RI for two months. All the sentences were directed to run concurrently. However, under Sections 3 and 7 read Section 25 (1-A)(1-B)(a) of the Arms Act, the appellant was convicted, but no separate sentence was awarded. Hence, this appeal.

3. Shri Shree Prakash Sinha, learned counsel for the appellant has submitted that the confessional statement of the appellant as well as those of the co-accused were recorded by the police forcibly, out meeting the requirements of Section 15 TADA and Rule 15 of the rules framed thereunder. Thus, the same cannot be relied upon. The recoveries purported to have been made were also planted by the investigating agency and cannot be relied upon. The Designated Court erred in convicting the appellant. Thus, the appeal deserves to be allowed.

4. Shri Mukul Gupta, learned Senior counsel appearing for the respondent, has opposed the appeal contending that the confessional statement of the appellant as well as those of the co-accused, were recorded in strict adherence to statutory requirements i.e. Section 15 TADA and Rule 15 of the rules framed thereunder. The appellant and co- accused have made their confessional statements voluntarily and the conviction of the appellant can be maintained on the sole basis of the confessional statement of the appellant himself. Moreover, a large number of co-accused have named him and have assigned to him overt acts. The recoveries have also been made strictly in accordance the requirements of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') and there is no reason to disbelieve the same, as the same were made at the instance of the appellant i.e. on the basis of his disclosure statement made voluntarily. Thus, the appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

6. Evidence against the appellant (A-41):

a) Confessional statement of the appellant himself.

b) Confessional statement of co-accused Samir Ahmed Hingora (A-53).

c) Confessional statement of co-accused Sanjay Dutt (A-117).

d) Confessional statement of Manzoor Ahmed Sayyed Ahmed (A- 89).

e) Deposition of Pandharinath Hanumanth Shinde (PW.218).

f) Deposition of Laxman Loku Karkare (PW.45).

g) Deposition of Hari Pawar (PW.596).

h) Deposition of Prem Kishan Jain (PW.189).

7. Confessional Statement of Baba Musa Chauhan (A-41): His confessional statement shows that he was well acquainted the co-accused Salim who used to extort money, and was working for Anis Ibrahim Kaskar (AA), brother of notorious smuggler and gangster Dawood Ibrahim. Salim told the appellant (A-41) on 15.1.1993 to arrange a garage, respect to which, the appellant (A-41) initially expressed his inability, but after receiving a phone call from Anis Ibrahim Kaskar in the evening at about 7-7.30 P.M., wherein Salim was asked to go to the Magnum Video Office, and meet Samir Ahmed Hingora (A- 53). The appellant (A-41) went there along Salim in a blue coloured Maruti 800 Car, and the help of Samir Ahmed Hingora (A-53) and his partner Haneef, they searched for an appropriate garage. At this time, Salim told the appellant (A-41) that he would keep 2-3 AK 56 rifles him (A-41) for about 2-3 days, and asked him to stay at home, so that he could bring the arms. On the subsequent morning, Salim came to the house of the appellant (A-41). Abu Salim asked the appellant (A-41) to drive a white coloured Maruti Van which was parked near the Arsha Shopping Centre and to come near the Magnum office. Salim drove ahead of him in a blue coloured Maruti, after handing over the keys of the van to the appellant (A-41). Appellant (A-41) reached close to the Magnum office in the van. Salim and Samir Ahmed Hingora (A- 53) then sat in the van driven by the appellant (A-41), and all those three persons reached the house of co-accused Sanjay Dutt (A-117).

Sanjay Dutt (A-117) embraced Salim and Samir Ahmed Hingora (A-53). Salim introduced Sanjay Dutt (A-117) to the appellant (A-41). Sanjay Dutt cleared the passage leading to the garage, shifting the vehicles parked therein to the other side. The van which the appellant (A-41) had driven was taken to the garage in reverse gear. Salim opened the cavity of the car which was under its back seats the aid of a 'panna', and from in, removed 9 AK 56 rifles one by one, and then opened the inside lining of the front door of the car and removed from there 80 hand grenades out pins, then he removed 1500/2000 bullets from the back door. These bullets were packed in brown coloured paper, in packets of 25-30 bullets, which were held together by rubber bands.

The hand grenades were also packed in brown coloured paper. There were 56 magazines in the lining of the back door of the car. Sanjay Dutt (A- 117) asked Salim why the hand grenades had been brought there, as it might create a problem in case the same blew up. Salim explained to Sanjay Dutt (A-117) that as the hand grenades did not have pins nothing would happen. Salim made a list of all the articles and asked the appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets and 20 hand grenades in Sanjay Dutt's Fiat car (A-117) . The appellant (A-41) kept the said arms and ammunition as directed by Salim in the dickey of Sanjay Dutt's car (A-117), locked the dickey and put the key in his pocket. Samir Ahmed Hingora (A-53) kept 20 hand grenades in his car after packing the same into a bag and the appellant (A-41) kept 3 rifles, 16 magazines, 25 hand grenades and 750 bullets and came out Samir Ahmed Hingora (A-53). The appellant (A-41) left the remaining arms and ammunition kept in a bag, which he laid under his bed. Next day, the appellant (A-41) loaded all the bullets in the magazines of the rifles.

He could not contact Salim to take away the said arms as no one picked up Salim's telephone. Subsequently, the appellant (A-41) was told by Salim's wife that Salim had gone out of India and that she would talk to him after 2-3 days. The appellant (A- 41) told her that Salim had kept some computer parts him (A-41) and that the same were to be returned to him at the earliest. A-41 went to the house of Salim and told his wife that he wanted to return the said goods at the earliest. On the same night, A-41 received a telephone call from Dubai from Salim informing him that he was coming back to Bombay in 1-2 days, and that after coming back he would collect all the goods. However, Salim did not return from Dubai. So the appellant (A-41) called up his brother-in-law in Dubai and asked him to talk to Salim, and request him to collect his goods, who subsequently informed the appellant (A-41) that Salim was likely to come to Bombay in a day or two and that he would contact him.

Immediately thereafter, riots took place in Bombay. On 16.1.1993 the appellant (A-41) received a telephone call from Salim, who asked him to talk to Anis Ibrahim Kaskar (AA). A-41 contacted Anis Ibrahim, who told the appellant (A-41) to give two guitars and six 'tars' (cord) to Salim Kurla and also, to give him some 'Kadis' and on being told that the 'Kadis' had already been attached to the broom (Jaadu), Anis Ibrahim asked the appellant to give only 6 'tars'. The appellant (A-41) told Anis Ibrahim Kaskar that he did not know Salim Kurla. Then Anis Ibrahim Kaskar told him that Salim Kurla knew the appellant (A-41), and that he would come to the Andheri Post Office in the front of his house. Thus, on his instructions, the appellant (A-41) handed over two rifles and 6 loaded magazines to Salim Kurla. Salim Kurla had told the appellant that these arms were to be given to some one in Beharam Pada. After 2-3 days, Salim returned to Bombay and came to the appellant (A-41) his brother Kalam.

The appellant (A-41) told him that he had 1 rifle, 25 hand grenades, the remaining bullets and 10 magazines etc. The appellant (A-41) asked Salim to take these remaining articles from him. However, he promised to take them back in the evening, but then did not come for two days. During this period, the appellant (A-41) learnt from the newspapers that Salim had been arrested by the police while trying to extort money from a Gujarati person. Salim himself came to see the appellant (A-41), and told him (A-41) that Salim Kurla could disclose the name of the appellant (A-41) to the police, and hence, he advised the appellant (A-41) not to disclose Salim's name. The appellant (A- 41) became frightened, as he was in the possession of arms. Thus, he immediately shifted the arms to Iqbal Tunda and informed Salim to keep the remaining goods someone out disclosing his (A-41) name. Salim came to see the appellant (A-41), and he had him 30 loaded magazines which were wrapped in a plastic/polythene bag and then kept in a cloth bag.

He left these magazines the appellant (A-41) and said that he would send Ayub to collect this ammunition from him. Accordingly, the next night at 9-9.30 p.m. Ayub came arms including one AK 56 rifle. He kept the magazine and bag in one place. Though, he returned a part of the arms and ammunition, some material still remained the appellant (A-41), which was kept in another place. He returned 30 loaded magazines to Salim and Ayub which they kept inside the dickey of their scooter and left. Salim Kurla was arrested after the Bombay blast and upon his disclosure, the appellant (A-41) was arrested on 28.3.1993. Later on, his father obtained the bag which he had kept Iqbal Tunda through Hazi Ismail, and the same was produced before the police. He (A-41) further stated that he was not interested in using any arms or keeping the same him, rather he had been forced to keep the same by the other co-accused, on the pretext that the weapons and ammunition would be collected from him in 2-3 days. The appellant (A-41) made a retraction statement on 21.12.1993.

8. The Confessional Statement of Samir Ahmed Hingora (A- 53): He made a confession that on 15.1.1993, Anis Ibrahim Kaskar had telephoned him stating that the appellant (A-41) and Salim would bring one vehicle loaded weapons, and that he was to make arrangements for the off-loading and handing over of some weapons to Sanjay Dutt (A- 117), and that thereafter, some weapons would be taken back by them for distribution to other persons. Since his partner Haneef was not in office, he took them to his house. Haneef talked to Anis Ibrahim Kaskar (AA) in Dubai over the telephone, and expressed his unwillingness to carry out his instructions. However, upon the request of Salim, he (A-53) agreed to take him to Sanjay Dutt's house while he was talking to Anis Ibrahim Kaskar over the telephone about the said weapons. Sanjay Dutt hugged Salim and asked him to come the next day the weapons. The next day, he (A-53) went to his office and met Salim and the appellant (A-41) and then reached the house of Sanjay Dutt (A-117). Sanjay Dutt asked his driver Mohd. to remove all the vehicles from the garage, and the appellant (A-41) then parked his Maruti van there and asked for a spanner and screw driver. Sanjay Dutt (A-117) asked Mohd. to bring the tool kit from his car and give it to the appellant (A-41). Salim wrapped three AK 56 rifles and some magazines in a bed sheet as per the request of Sanjay Dutt (A-117), and Salim also gave Sanjay Dutt 20-25 hand grenades which were put in a black coloured bag along other ammunition.

9. Confessional statement of Sanjay Dutt (A-117): He admitted that one day in the month of January around 9-9.30 p.m., Haneef and Samir Kurla had come to his house along Salim. He had met Salim once or twice earlier also. They told him (A-117) that they would be coming the next day the weapons that were to be delivered to him and then went away. The next morning, Samir, Haneef and Salim came to his house along one other person, whom he did not know. They had come in a Maruti Van and parked the same in the tin shed which was used by him for parking his own vehicles. One person was sitting inside the Maruti Van. After about 15-20 minutes, he took out three rifles, and they told him that the same were AK-56 rifles. He then brought some cloth from his house and gave it to them. Salim and the person who had come him, wrapped the rifles in the cloth, and thereafter, gave the same to him. He stated that he could identify, the person sitting in the car and also the hand grenades. He kept these rifles and the ammunition in the dickey of his Fiat Car No.MMU 4372.

10. Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89): He confessed that he had a blue coloured Maruti 800 bearing No. M.P.23 B-9264. On 22nd/23rd January, 1993, in the evening, Salim contacted him over the telephone and called him to his office at Santacruz. After reaching there he took him (A-89), to the office of the appellant (A-41) at Monaz Builders and Builders, S.V. Road, Andheri, Opposite the Post Office. He introduced (A-89) to the appellant (A-41), and gave the key of his car to the appellant (A-41) and after about half an hour the appellant (A-41) came back and parked the said car outside the office, and gave the key to Salim and told him that he had kept the bag of weapons in the car. When Salim and (A- 89) entered the car, he (A-41) saw that a black bag containing weapons, was kept on the rear seat of the car.

11. Deposition of Pandharinath Hanumanth Shinde (PW.218) : He was the constable posted at the house of Sanjay Dutt (A-117) for security. His statement was recorded in court on 6.11.1997, wherein he deposed about the visit of the appellant (A-41) along Salim and others, to the house of Sanjay Dutt (A-117). He identified the appellant in a TI Parade held after 57 days, as well as in court. He also identified the two persons along Sanjay Dutt. He supported the prosecution's case by saying that Sanjay Dutt had instructed the witness to go to Gate no. 1 for duty, which he had followed. The happenings at Gate No.2 would not be visible to him, while he was standing near the main Gate No.1. It was for this reason that he had been shifted to a place from where he could not possibly see what was happening.

12. Deposition of Laxman Loku Karkare (PW.45) - He was a panch witness in the recovery made on 1.4.1993. When he reached the police station and had agreed to become a panch witness, there were some constables and one more person, who had disclosed that his name was Ibrahim Musa Chauhan @ Baba Chauhan (A-41). He had given the address of his residence. The appellant (A-41) had disclosed to the police in his presence, that he had AK 56 rifles, magazines, grenades and cartridges which he had been concealed, and that he would show them the place of concealment and also produce the weapons. The panchanama was signed by this witness. They reached the place as was explained to them by the appellant (A-41) by police jeep, which was near Andheri Bus Terminus. Subsequently, they found themselves in front of a chawl owned by the appellant (A-41).

Then the appellant took them to a lane which was being used as a dumping ground for waste material, and removed a bag from underneath a heap of waste. He removed an AK 56 rifle, 635 cartridges and 25 hand grenades, and handed over the same to P.I. Pawar who examined all the articles. The seizure panchanama was prepared by P.I. Pawar. In his cross-examination he deposed that he did not remember that there was a street light at a distance of 20 feet on the northern side of the open space used as a dustbin. The space was full of waste material when he had gone along the police party and the accused. There were no left over eatables dumped at the place and it was thus, not smelling. P.I. Pawar along the accused had entered the open space. The open space being used as a dustbin was 4 ft. x 4 ft. The accused brought a bag out to the lane from the dustbin. The bag was not in the hands of P.I. Pawar. The accused (A-41) had removed the bag from the dustbin in their presence. He was standing in the lane watching the accused removing the bag from the dustbin.

13. Deposition of Hari Pawar (PW.596) - He is the Police officer who made the recovery at the instance of the appellant (A-41), in the presence of Panch witnesses. He has corroborated the version of recovery as stated by PW.45.

14. Deposition of Prem Kishan Jain (PW.189)- He had recorded the confessional statement of the appellant. He deposed that the appellant (A-41) had been brought from police custody and sent back to police custody. The witness explained that he was fully aware of the requirement of recording a confession and that he had complied all the said requirements while recording the confession of the appellant.

15. In State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 this court dealt the issue of recovery from the public place and held: "21. The conduct of the accused has some relevance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh's house at 6.15 a.m. on hearing the news of that tragedy and then accused Jeet Singh told him that Sudarshana complained of pain in the liver during the early morning hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure , he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room but they slept in two different rooms. Such a conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminating circumstance spoken to by PW 10 that they were in the same room on the fateful night. We too give accord to the aforesaid approach made by the trial court.

" 16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, this Court held: "22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also."

17. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.

18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI (2003) 12 SCC 257, this Court explained the meaning of possession as: "The word "possession" means the legal right to possession (See Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness, (1976) 1 All ER 844.) Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is in his special knowledge."

19. In Sanjay Dutt v. State thr. CBI, Bombay (II), (1994) 5 SCC 410 this Court considered the statutory provisions of Section 5 TADA and in this regard held: "19. The meaning of the first ingredient of 'possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession the requisite mental element, that is, conscious possession and not mere custody out the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. xxxxxx 25. The significance of unauthorised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act.

This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession this awareness, in a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption. xxxxxxx 27. There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non- existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and its availability in a "notified area" was innocuous.

Whatever be the extent of burden on the accused to prove the non-existence of the third ingredient, as a matter of law he has such a right which flows from the basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving non- existence of the facts necessary to constitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc. in a notified area is proved by the prosecution, then he cannot be convicted under Section 5 of the TADA Act and would be dealt and punished under the general law. It is obviously to meet situations of this kind that Section 12 was incorporated in the TADA Act."

20. Therefore, the only requirements under the statutory provisions are, that

(1) a person must be in possession of some contraband material;

(2) the person must have knowledge of his possession i.e. conscious possession;

(3) it should be in the notified area. Once possession is established, the burden is on the accused to show that he was not in conscious possession.

21. After considering the entire evidence on record, the learned Designated Court came to the conclusion that the appellant (A-41) was aware that the arms and ammunition which were handled by him were to be used during riots against Hindus. The father of the appellant (A-41), had collected a bag of contraband kept Iqbal Tunda through Haji Ismail, and handed over the same to the police. The Designated Court held that the confessions of the co-accused established the role played by the appellant (A-41) in supplying weapons to A-117. The confession of A-117 does not reveal the name of the appellant (A-41), but the same is obvious as A-117 did not know the appellant prior to the said meeting.

Thus, it is clear that the fourth person referred to in the confession of A-117 is none other than the appellant (A-41). The Court held that a consideration of the entire evidence leads to the inescapable conclusion that the appellant (A-41) was in unauthorised possession of AK-56 rifles, magazines, ammunition and hand granades, and that he had distributed a part of the material to A-117, kept the hand grenades himself, and had handed over an AK-56 rifle to Salim Kurla (dead). All the said acts were committed by him at the behest of Salim (AA) and Anees Ibrahim, and thus he has committed an offence punishable under Sections 3(3) and 5 TADA. Being in the unauthorised possession of weapons in a notified area, and having failed to rebut the presumption i.e. that the same were being for the purpose of the commission of a terrorist act, he is liable to be convicted under Section 5 TADA.

However, considering that no nexus was established between the material possessed and distributed by the appellant (A-41), and the material smuggled into the country by the main conspirators, and there being absolutely no other material on record to reveal the nexus between the appellant (A-41) and any other co-accused involved in the said conspiracy, it was held that he could not be held guilty for the offence of conspiracy i.e. for the first charge. The acts committed by the appellant (A-41) do not reveal that the same were being done for the purpose of furthering the object of the conspiracy.

22. We have considered the entire evidence on record and come to the following conclusions: i. The appellant (A-41) was well acquainted Abu Salim (AA) who was working Anis Ibrahim Kaskar (AA). ii. The appellant (A-41) was asked to arrange a garage, and hence searched for an appropriate garage co-accused Salim, Hingora (A-53) and his partner Haneef. iii. The appellant was introduced to co-accused Sanjay Dutt (A-117) at the residence of the latter. iv. The appellant witnessed the handing over of contraband to the co-accused (A-117). v. The appellant was in conscious possession of certain contraband items. vi. The recovery of the contraband material which was effected upon the making of a disclosure statement by the appellant, took place at a dumping ground for waste.

23. The Designated Court convicted the appellant (A-41) on the basis of the evidence as has been hereinabove stated. We find no cogent reason to interfere the decision of the Designated Court. The appeal is hereby, accordingly dismissed.

Altaf Ali Sayed Vs. State of Maharashtra through CBI

[Criminal Appeal Nos.1129-1130 of 2007]

24. These appeals have been preferred against the judgments and orders dated 24.11.2006 and 5.6.2007 passed by a Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, in Bombay Blast Case No. 1/1993 by which the appellant has been convicted under Section 3(3) TADA and sentenced for 10 years rigorous imprisonment and a fine of Rs.50,000/- and in default of payment of fine to further suffer rigorous imprisonment of one year. He has further been convicted for the offence under Section 5 TADA and sentenced to 10 years rigorous imprisonment a fine of Rs.2,00,000/- and in default of payment of fine to suffer further rigorous imprisonment for 3-1/2 years. Both the sentences were directed to run concurrently.

25. Facts and circumstances giving rise to these appeals are that: A. In addition to the main charge of conspiracy, the appellant (A- 67) was charged for arranging 13 air tickets in order to facilitate the traveling of the accused persons for training of handling arms, ammunition and explosives. He has also been charged for knowingly and intentionally storing 2 suit cases containing arms and ammunition, thereby committing the offence punishable under Section 3(3) TADA. The appellant was further charged for possessing arms and ammunition in the notified area of Greater Bombay which were recovered at the instance of Mohd. Hanif Usman Shaikh, thereby committing the offence under Section 5 TADA. And lastly, he was charged an intent to aid terrorist acts thereby committing an offence under Section 6 TADA. B. After conclusion of the trial, the learned Designated Court under TADA convicted and sentenced the appellant as referred to hereinabove. Hence, these appeals.

26. Shri Mukul Rohtagi, learned senior counsel appearing on behalf of the appellant, has submitted that the appellant had not been found guilty of first charge i.e. larger conspiracy and the allegations against him had been regarding keeping possession of handgrenades, detonators and storing the suitcases which had been recovered on his discovery statement. The recovery memo of the alleged articles had not been signed by the appellant and even the story of handing over the two bags to the appellant is false for the reason that it has been alleged that Amzad Ali Aziz Meharbaksh had given four bags which were returned to Yakub Memon (A-1) as Amzad Ali Aziz Meharbaksh had been discharged by this Court. Thus, the evidence of Mohd. Hanit Usman Shaikh (PW.282) in this regard cannot be relied upon.

More so, the prosecution could not produce all 105 handgrenades, alleged to have been recovered from the possession of the appellant as there had been shortage of 20 handgrenades. More so, no explanation had been made by the prosecution as how the key-maker was present on the scene and who had brought him. More so, the panch witness could not be relied upon because his brother is an employee in arms department in police and thus, he could not termed to be an independent witness. The alleged recovery of articles 42 and 43 had not properly been sealed, therefore, there was a possibility of tampering the contents of the suitcases. Thus, the learned Designated Court erred in convicting and sentencing the appellant. Thus, the appeal deserves to be allowed.

27. Per contra, Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, has submitted that there is sufficient material on record that in the presence of Yakub Memon (A-1), Amzad Ali Aziz Meharbaksh had told the appellant (A-67) that goods belonging to Yakub Memon (A-1) were to be shifted to some other place and, subsequently, Yakub Memon (A-1) asked appellant (A-67) as to whether the bags had been delivered to him by Amzad Ali Aziz Meharbaksh. The tickets for the co-accused were arranged by Yakub Memon (A-1) through the appellant by sending money and passports to him through Rafiq Madi (A-46). It was Yakub Memon (A-1) who sent three bags to Rafiq Madi (A-46) through appellant (A-67). Yakub Memon (A-1) had instructed on telephone to the appellant for sending the bags to Al-Husseini Building i.e., residence of Yakub Memon (A-1) and his family. The recovery has been made in accordance law and there is sufficient material against the appellant to convict him for the aforesaid offences, hence, no interference is required.

28. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

29. Evidence against the appellant:

(a) Confessional statement of the appellant (A-67)

(b) Confessional statement of Mohd.Rafiq Madi Biyariwala(A- 46)

(c) Deposition of Mohd. Hanit Usman Shaikh (PW-282)

(d) Deposition of Prem Kishan Jain (PW-189)

(e) Deposition of Shri K.L. Bishnoi (PW-193)

(f) Deposition of S.J. Satam, Panch witness (PW-37) (

(g) Deposition of Waman Kulkarni (PW-662)

(h) Deposition of Woman Dotlkar (PW-420)

(i) Deposition of Asit Devji (PW-341)

(j) Deposition of Anil Prabhakar (PW-506)

(k) Memo Panch Ex. 108

(l) Discovery Panch. Ex. 109

30. Confessional statement of the appellant (A-67): His confessional statement was recorded on 16.4.1993 by Prem Kishan Jain (PW-189), D.C.P. Commandant SRP(F) Group-VI Dhule. The appellant (A-67) deposed that he was a recruiting agent under the name of Altaf Enterprises. He knew Amzad Ali Aziz Meherbux (Discharged accused) and Yakub Memon (A-1). Amzad sent 4 bags of Yakub to be kept him as per their earlier meeting. He asked them as to what was in the bag and Amzad told him that it contained weapons etc.

He also booked tickets for 15-16 persons at the instance of Yakub for which passports and payments were received through Rafiq Madi (A-46). After 10-12 days, Rafiq (A-46) sent him 3 bags of Yakub to be kept him. When he asked, Rafiq told him that they contained bullets, grenade etc. On 10.3.1993 he returned 5 bags at Al-Husseini Building at instance of Yakub Memon. He kept the remaining two bags containing weapons and explosives Mohd. Hanif. The said two bags were recovered by police on 26.3.1993 at his instance from Mohd. Hanif.

31. Confessional statement of Mohd. Rafiq Madi Biyariwala (A-46): The said accused stated that on one occasion the appellant (A- 67) was delivered Rs.50,000/- and on another occasion Rs.62,000-63,000/- at the instance of Yakub Abdul Razak Memon (A-1). On 14-15 February, he saw the appellant (A-67) taking away 3 suit-cases in his Maruti Van from nearby garage below the building of Tiger Memon (AA). Thus, it came in evidence through the confessional statements of A-67 and A-46 that four suitcases were kept in the jeep, which was parked in the residential premises of Amjad Abdul Aziz Meherbux (A-68), (discharged accused) by Abdul Gani Ismail Turk (A-11) and Anwar Theba (AA) at the instance of Yakub Abdul Razak Memon (A-1).

Subsequently, the appellant (A-67) took away the four suit cases and kept them in his office, at the instance of Yakub Abdul Razak Memon (A-1). Later, Rafiq Madi Musa Biyariwala (A-46) brought three more suit cases and kept them at the office of the appellant (A-67). Out of the total seven suit cases, appellant (A-67) delivered five suit cases to Yakub Abdul Razak Memon (A-1) at Al Husseini building. Thus, two suit cases remained in his possession. It has further been disclosed by the appellant that due to the involvement of Yakub Abdul Razak Memon (A-1) in the case, he kept the said suit cases at the residence of Mohd. Hanit Usman Shaikh (PW.282). After the arrest of the appellant, he made a disclosure under Section 27 of Evidence Act (Exh. 108 dt. 26.3.1993) and led Anil Prabhakar (PW-506) and Suresh Satam (PW-37) to the residence of Mohd. Hanit Usman Shaikh (PW-282) from where the following articles were recovered and taken into possession vide Panchnama Ext. 109. The suitcases contained arms and ammunition in large quantities.

32. Deposition of Mohd. Hanit Usman Shaikh (PW-282): Mohammed Hanif Usman Shaikh (PW-282) in his statement disclosed that the appellant (A-67) had given him two suitcases in his office on 22.3.1993 at 9.00 P.M. in closed condition and the appellant (A-67) had asked the witness to keep the said two suitcases and also told that the suitcases were containing Fax machines. He has further revealed that after making the recovery of the suitcases from him the police got them open through the mechanic. The handgrenades were taken out and chits were affixed on each of the handgrenade recovered from the bags.

But, Mr. Mukul Rohtagi, learned senior counsel for the appellant, has submitted that after the recovery of handgrenades, it was not possible to affix chits on each of the handgrenade in such a short time of 50-55 minutes even if 20-30 police officials were involved in that activity. The bundles of wire were kept together and wrapped in a paper. The said packet was tied by means of a string, and the seal of lac was put on the said packet. 65 handgrenades from the bigger suitcase were kept in the same bag along the packet of the bundles of wires, and 40 handgrenades from the small bag were also kept in the same suit case, and the same were tied and sealed. He has further complained that during the course of his custody, his statement was recorded by the police under Section 6 but it was not read over and explained to him by the police either in Hindi, Urdu or in any other language. He was detained by the police in March 1993 for about 20-25 days and was not allowed to return to his house. Moreover, he was tutored and was asked to involve the appellant (A-67) in this case. The witness had been attending the office of the appellant (A-67) in connection taking the persons abroad. He has also revealed that the two suitcases recovered had been shown to him and he kept their description in mind. Though, the said witness had not been turned hostile but, he was permitted to ask some questions in the nature of cross-examination regarding the happening at the Mahim Police Station in the month of February/March 1993. On the basis of the above, it has been submitted by Mr. Mukul Rohtagi that the evidence given by Mohammed Hanif Usman Shaikh (PW-282) does not inspire confidence and cannot be relied upon.

33. Deposition of Premkrishan Dayakrishan Jain (PW.189): Premkrishan Dayakrishan Jain (PW.189), D.C.P. Commandant, S.R.P. (F) Group-VI, Dhule, recorded the confessional statement of appellant (A-67). He deposed that when the confessional statement of the appellant (A-67) was recorded on 16th and 18th of April, 1993, he was produced before the said witness by PSI Patil accompanied by a police party. The witness asked the appellant his name and then as instructed by the witness, PSI Patil and police party left the chamber after removing handcuffs of the appellant (A-67) and being fully satisfied that his confession was voluntarily recorded.

The appellant did not raise any complaint against anybody and said that he was giving his confessional statement voluntarily out any pressure or fear or any inducement given by any person. Thus, two things are clear that on 16/18.4.1993 when the appellant was produced for recording confessional statement, he came from the police custody on 16.4.1993 and, at that time, he was handcuffed, so the witness asked the police officials who had produced him, to remove the handcuffs. After recording the first part of his confession, he was sent to police custody and not in judicial custody or in the custody of any other independent agency. While on 18.4.1993, he was again produced by the police, having the custody of the appellant handcuffed and it was on the direction of the witness, the handcuffs were removed and his statement was recorded.

34. Deposition of K.L. Bishnoi (PW-193): He has recorded the statement of the co-accused Rafiq Madi (A-46) and deposed that he has made a voluntary confessional statement which was recorded strictly in accordance law, and he has also pointed out the involvement of the appellant in the crime.

35. Deposition of S.J. Satam, Panch witness (PW-37): He was the Panch witness and he has deposed that he had accompanied the police party along co-accused Rafiq Madi (A-46) who had taken them to Gate No.5, Kashinath Building, and pointed out towards the appellant (A-67) who was arrested therein and arrest memo was prepared.

36. Deposition of Waman Kulkarni (PW-662): He has deposed about sending 9 sealed packets to FSL on 24.8.1993 vide forwarding letter, Ext.2439 and receiving the chemical analysis report, Ext.2439A.

37. Deposition of Woman Dotlkar (PW-420): He has deposed that he was working as Assistant Counter Supervisor of M/s Hans Air Services, and has further deposed regarding booking of 4 tickets by the appellant (A-67) for 11.2.1993 for Dubai and proved Ext.D-3, xerox copy of 3 tickets. The relevant material by itself does not reveal that Yakub Memon (A-1) disclosed the contents of said bags to the appellant. The further material in confession reveals that bags were given to him on the count of same being luggage of persons which were to be sent to abroad. The evidence reveals the manner in which the appellant had returned 4 bags out of bags given by Amjad Abdul Aziz Meherbux (A-68) and one bag out of bags brought by Rafiq Madi Musa Biyariwala (A-46) on the count of the same being luggage etc. The material reveals that he was not able to return two bags on the count of same being heavy.

38. The confession of the appellant (A-67) further reveals that he had asked Aziz Meherbux (A-68) about contents of bags given by Yakub Abdul Razak Memon (A-1) and then A-68 had informed him that same were weapons etc. for purposes of taking revenge of losses suffered by Muslims during the riots.

39. Since the appellant (A-67) being in possession of contraband material in an unauthorised manner in notified area and the said material being capable of attracting provisions of Section 5 TADA, it will make the appellant (A-67) liable for commission of offence under Section 5 TADA. However, considering the purpose for which the appellant (A-67) had taken control of said material, i.e. for hiding the same his friend, it cannot be said that he had committed the said act for either aiding Yakub Abdul Razak Memon (A-1) or abetting any of the acts of Yakub Abdul Razak Memon (A-1). Thus, though the appellant (A-67) by committing such act had contravened provisions of Arms Act and Explosive Act, still his intent behind committing said act being not for helping any terrorist, thus, he cannot be held guilty for commission of any offence under Section 6 TADA.

40. The word 'Possession' has been explained under TADA by this Court in Durga Prasad Gupta (supra).

41. In Kalpnath Rai v. State (Thr. CBI), (1997) 8 SCC 732, this Court held that in order to meet the essential ingredients of offence under Section 3 TADA mens rea must be proved, and it is for this reason that the companies and corporations etc. cannot be prosecuted for the offence under the provisions of TADA. It was further held that the confession of an accused can be used against co-accused only in the same manner and subject to the same condition as stipulated in Section 30 of the Evidence Act, i.e. the accused tried in the same case but for different offences.

42. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined, i.e. Suresh Satam (PW.37). His evidence cannot be relied upon for the reason that he was the brother of a Police Constable and thus, cannot be termed as an independent witness. Factually, it is true that the panch witness Suresh Satam (PW.37) himself has admitted that his brother was employee of the police department of Maharashtra. Further, merely having such a relationship does not make him disqualified to be a panch witness, nor his evidence required to be ignored. In Kalpnath Rai (supra), this Court has held that the evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact-situation, a duty is cast on the court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined. (See also: Paras Ram v. State of Haryana, (1992) 4 SCC 662; Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, (1995) 4 SCC 255; Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427; Anil v. State of Maharashtra, (1996) 2 SCC 589; Tahir v. State (Delhi), (1996) 3 SCC 338; and Balbir Singh v. State, (1996) 11 SCC 139).

43. It has been pointed out by Mr. Mukul Rohtagi, learned senior counsel appearing for the appellant, that the bags were recovered, though the key was not available and, therefore, it is not the case where the key of the suit cases had been given to the appellant (A-67) and in such a fact-situation, the appellant may not be aware of the contents of the bags as he had not seen its contents. The locksmith was called and he made key and gave it to the police. Subsequent to the opening of the bags, neither the key was kept in safe custody nor was it exhibited or preserved. The locksmith has not been examined. The recovery of bags itself becomes doubtful for the reason that even if the statements of the panch witness Suresh Satam (PW.37) and Anil Prabhakar (PW.506) are taken into consideration, the recovery was made on 26.3.1993 at 10.00 p.m., though they had started at 5.00 p.m. from a nearby place. Therefore, prosecution has not explained as under what circumstances the police party took five hours to travel such a short distance.

44. The confession of the appellant (A-67) revealed that in the second week of February, he met Yakub Memon(A-1) in office of Amzad Ali Meharbax (A-68) and A-1 asked the appellant (A-67) to book tickets to Dubai for him. Thereafter, Amzad Ali Meharbaksh (A-68) gave the the appellant (A-67) four bags of Yakub (A-1) and after some time Rafiq Madi (A-46) came money for the tickets. After 10-12 days Rafiq Madi (A-46) came 3 bags of Yakub to be kept the appellant (A- 67). Upon inquiry from A-68, the appellant (A-67) found out, that the bags contained weapons for taking revenge of the sufferings of Muslims. On 10th March, the appellant (A-67) had taken 5 bags and kept the same in the garage of A-1 at Al-Husseini Building. After bomb blasts, he kept the remaining two bags Mohd. Hanit (PW-282) from where they were recovered at his instance. Confession of Mohd. Rafiq Musa Biyariwala (A-46) revealed that on two occasions Yakub Memon (A-1) had given Rs. 50,000/- and Rs. 62000-63000/- to A-46 for giving it to the appellant (A-67), and accordingly A-46 delivered the same to the appellant (A-67) and saw the appellant (A-67) driving away from Al- Husseini Building in red Maruti car 3 suitcases. Further, Asit Devji (PW-341) and Waman Dotlkar (PW-420) corroborated the incident of booking tickets by M/s Altaf Enterprises i.e. firm of the appellant (A- 67).

However, the Court held that the said instance of booking tickets by the appellant (A-67) cannot lead to the conclusion that he had knowledge of purpose for which travellers were going abroad and thus, the appellant (A-67) was held not guilty of first limb of second charge under Section 3(3) TADA. The recovery of two suitcases containing handgrenades, detonators and wires was effected by Anil Mahabole (PW-506) in presence of Suresh (PW-37), panch witness, on 26.03.1993 from the house of Mohd. Hanif (PW 282) and the same was corroborated by PW-282. The appellant (A-67) had been told by Amzad (A-68) that these bags contained weapons to be used for taking revenge for Muslims, but still continued to keep the same. The appellant (A-67) was in possession of bags after he shifted them to Hanif (PW 282) as he assumed full control of said bags out any instruction of Yakub (A- 1).

It is evident from the record hereinabove, that in the second week of February 1993, the appellant met Yakub Memon (A-1) in the office of Amzad Abdul Aziz Meherbux (A-68) and A-1 asked the appellant to book tickets for Dubai for him. Thereafter, A-68 gave the appellant 4 packets to Yakub Memon (A-1) and after some time, Rafiq Madi (A-46) came 3 packets of Yakub Memon (A-1) to be kept the appellant (A-67). On being asked Amzad Abdul Aziz Meherbux (A-68) revealed that the packets contained weapons which had been brought to be used for taking revenge of sufferings of Muslims. The appellant (A-67) had taken 5 bags on 10.3.1993 and kept the same in the garage of Yakub Memon (A-1) at the Al-Husseini Building. The Bombay blast took place on 12.3.1993, and it was after that the appellant has kept the 2 remaining bags Md. Hanit Usman Shaikh (PW.282) from where they had been recovered by the police on a voluntary disclosure of the appellant and at his instance.

The prosecution's case stood corroborated by the confessional statement of Rafiq Madi (A-46), who had also disclosed that he had received a sum of Rs.50,000/- and Rs.62,000/- respectively, from Yakub Memon (A-1) to be handed over to the appellant (A-67) and accordingly, the said amount had been delivered to the appellant by him. He had also deposed that he had seen the appellant (A-67) taking away the 3 suit cases in red Maruti Car to Al-Husseini Building. The other evidences of Asit Devji (PW.341) and Waman Dotlkar (PW.420) have fully proved the booking of tickets by M/s. Altaf Enterprises i.e., the Firm of appellant (A-67).

Undoubtedly, the evidence on record in respect of booking does not lead to draw an inference, that while booking the tickets he had any knowledge of any conspiracy regarding the Bombay blasts and in view thereof, he had rightly been acquitted of the charges of the first limb of the second charge under Section 3(3) TADA. However, the recovery of 2 suit cases containing the arms and ammunition i.e., handgrenades, detonators and wires etc. was effected by Anil Mahabole (PW.506), on the disclosure of the appellant in the presence of Suresh Satam (PW.37) and on 26.3.1993 from the house of Mohd. Hanit (PW-282). The recovery of 2 suit cases containing the arms and ammunition i.e., handgrenades, detonators and wires etc. stood fully proved by the conjoint reading of the depositions of Anil Mahabole (PW.506), Mohd. Hanit (PW.282) and Suresh Satam (PW.37).

45. We do not find any cogent reason to interfere the order passed by the Designated Court. The appeals lack merit and are accordingly dismissed.

Mohammed Sayeed Mohammed Isaaq Vs. State of Maharashtra

[Criminal Appeal No. 402 of 2008]

46. This appeal has been preferred against the judgment and order dated 22.5.2007 passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast, Greater Bombay in Bombay Blast Case No.1/93, by which the appellant has been found guilty and has been convicted under Section 3(3) TADA on two counts and has been awarded a punishment of 6 years along a fine of Rs.15,000/- on each count, and in default of payment of fine to suffer further R.I. for 3 months. However, the punishments have been directed to run concurrently.

47. Facts and circumstances giving rise to this appeal are that :

A. In addition to the main charge of conspiracy, he was charged the execution of the aforesaid criminal conspiracy, as during the period between December 1992 to April 1993, he had abetted and facilitated various terrorist activities, and more particularly, he had gone to Pakistan to receive weapons training in the handling of arms, ammunition and explosives for the commission of the terrorist activities, between the dates 22.1.1993 - 15.2.1993.

B. He was further charged for having attended conspiratorial meetings held in Dubai and Pakistan, along the other co- conspirators in order to plan the commission of terrorist acts. C. After conclusion of the trial, the learned Designated Court found the appellant (A-95) guilty under Section 3(3) TADA only and awarded the sentence and fine, as referred to hereinabove.

Hence, this appeal.

48. Ms. Farhana Shah, learned counsel for the appellant, has conceded to the fact that the appellant had in fact gone to Dubai, out knowing the purpose of such visit, merely upon being asked by the other co-accused to do so, and that he came to know only once when he was in Dubai that he had to travel to Pakistan for receiving training in the handling of arms and ammunition. Even in Pakistan, he was unable to take training properly as he was suffering from various ailments due to which, he was even got abused several times. Learned counsel has admitted appellant's visit to Dubai, but has also submitted that even after returning to Bombay, he did not participate in any overt acts or conspiratorial meetings. Hence, no charge could be proved against him for attending any such meetings either in India, Dubai, or Pakistan. Therefore, it has been submitted by Ms. Farhana Shah, that appellant has been exploited by powerful criminals and smugglers, and that he had voluntarily gone to Dubai only in search of a job but, from there he was forced to travel to Pakistan for training. However, owing to the fact that he could not receive training, after returning to India he did not attend any meeting. Thus, he cannot be convicted for the offence punishable under the provisions of TADA.

49. On the other hand, Shri Mukul Gupta, learned senior counsel appearing for the CBI, has vehemently opposed the appeal contending that though undoubtedly, he might not have been involved in any overt act, his involvement in the aforesaid criminal conspiracy cannot be ruled out, hence, the provisions of Section 3(3) TADA would automatically be attracted in light of the facts of the case. Thus, the appeal lacks merit and is liable to be dismissed.

50. We have considered the rival submissions made by the learned counsel for the parties and perused the records.

51. Evidence against the appellant (A-95) :

(a) Confessional statement of Mohmed Sayeed Mohmed Issaq (A-95)

(b) Confessional statement of Hanif Mohmed Usman Shaikh (A-92)

(c) Confessional statement of Shaikh Ibrahim Shaikh Hussein (A-108)

(d) Confessional statement of Usman Man Khan Shaikh (A-115)

(e) Deposition of Dilip Suryanashi (PW-225)

(f) Deposition of Amrutkumar Shah (PW-362)

(g) Deposition of Bhagat Singh (PW-382)

(h) Deposition of Achyut Bhalchandra Deshpande (PW-657)

(i) Deposition of Surendra Kumar Sonhd (PW-188)

52. Confessional Statement of Mohd. Sayeed Mohmed Issaq (A- 95): His confession was recorded by Shri Surendra Kumar (PW-188), DCP Zone IV Bombay. He has stated that he was told by Yusuf to whom he was acquainted from 1.5 years, that Salim Kurla (A-65, since dead) was making a movie, and that if he (A-95) wanted, he could be assigned the role of a stunt man in such movie. When he contacted Salim (A-65), he (A-95) was told to stay in touch him as a need might arise for them to travel abroad. As certain material had to be brought back from Dubai, he (A-95) at the behest of Salim Kurla (A- 65), went there after being assured by Kurla, that there would be no risk in doing the same. They were given there 200 Dirhams for expenses. It was only when they reached Dubai, that the appellant (A- 95) found out that they had been sent there for weapons' training to take revenge upon the Hindu's. At the said time, the appellant was suffering from Tuberculosis, and therefore, was unable to keep up the training being provided and, hence, he along four others, refused to participate in the said training.

53. Confessional statement of Hanif Mohmed Usman Shaikh (A- 92): His confessional statement was recorded by Sharda Prasad Yadav, DCP Zone II, Bombay on 28.6.1993 and 30.6.1993. In