State of Maharashtra Vs. Fazal Rehman Abdul [March 21, 2013]
2013 Latest Caselaw 219 SC

State of Maharashtra Vs. Fazal Rehman Abdul

[Criminal Appeal No. 418 of 2011]

[Criminal Appeal No. 409 of 2011]

[Criminal Appeal No. 601 of 2011]

[Criminal Appeal No. 404 of 2011]

[Criminal Appeal No. 405 of 2011]

[Criminal Appeal No. 394 of 2011]

[Criminal Appeal No. 1033 of 2012]

[Criminal Appeal No. 594 of 2011]

[Criminal Appeal No. 402 of 2011]

[Criminal Appeal No. 1022 of 2012]

[Criminal Appeal No. 393 of 2011]

[Criminal Appeal No. 391 of 2011]

[Criminal Appeal No. 1027 of 2012]

[Criminal Appeal No. 597 of 2011]

[Criminal Appeal No. 407 of 2011]

[Criminal Appeal No. 1025 of 2012]

[Criminal Appeal No. 599 of 2011]

[Criminal Appeal No. 395 of 2011]

[Criminal Appeal No. 397 of 2011]

State of Maharashtra Vs. Fazal Rehman Abdul

[Criminal Appeal No. 418 of 2011]

DR. B.S. CHAUHAN, J.

1. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, 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. 1/93, acquitting the respondent of all the charges.

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

A. As the facts of this case and all legal issues involved herein have been elaborately dealt in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the respondent.

B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto, there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (herein after referred to as 'CBI') and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.

C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the 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 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (1)(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.

D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons' training in Pakistan and keeping in his possession 4 handgrenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.

E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges. Hence, this appeal.

3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed.

4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record. There is no confession by the respondent accused (A-76). 6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard along this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later.

7. Prakash Khanvilkar (PW-513), deposed about the recovery of handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned.

8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons' training in Pakistan.

9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality.

10. We had been taken through the evidence by Shri Mukul Gupta, learned senior counsel for the appellant, but we do not find any reason to interfere the cogent reasons given by the Special Judge. The appeal lacks merit and is accordingly dismissed.

State of Maharashtra Vs. Manjoor Qureshi & Ors.

[Criminal Appeal No. 409 of 2011]

11. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No. 1/93, acquitting the respondents of all the charges. The respondents had been charged in addition to the common charge of conspiracy under Section 3(3) TADA and Section 120B IPC , read the other provisions. They were charged knowingly abetting and facilitating the commission of terrorist acts and acts preparatory to terrorist acts as they had agreed to undergo weapons' training in Pakistan in handling of arms and ammunition and explosives for committing terrorist acts and for that purpose visited Dubai but could not go to Pakistan as arrangement for training there could not be made. They attended the conspiratorial meeting at Dubai along conspirators to plan the commission of terrorist acts.

12. Mohmed Iqbal Ibrahim S/o Shaikh Ibrahim (A-127) has died. Thus, this appeal stood abated qua him.

13. After conclusion of the trial, the Designated Court acquitted the respondents of all the charges.

Hence, this appeal.

14 Shri Mukul Gupta, learned senior counsel for the appellant-State has submitted that the Designated Court has erred in acquitting the respondents of the charge of conspiracy. The respondents had gone to Dubai to go to Pakistan for having training to handle the arms and ammunition and explosives and this is a matter of chance that they came back as the training could not be arranged but the evidence on record clearly established that they intended to have the training and subsequently to participate in the terrorist activities. Therefore, the appeal deserves to be allowed.

15. Ms. Farhana Shah, learned counsel for the respondents has submitted that there is nothing on record to establish that either of the respondents had any idea or knowledge or they had been informed by any other co-accused that they would be sent for training to Pakistan to handle the arms etc. and rather they had an impression that they would be taught handling the arms to be used for self-defence. Thus, no imputation of conspiracy can be established. The appeal lacks merit and is liable to be dismissed.

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

17. Confession of Shaikh Kasam @ Babulal Ismail Shaikh (A-109): His confession revealed that he was working as an Office Boy in the construction company of Ijaz Khan in 1992. The said office was closed after riots in Bombay in December 1992. Some persons namely Munna, Karimullah, Shehjada used to come to the said construction company of Ijaz and thus the accused developed acquaintance them. Ijaz used to travel between Bombay and Dubai. On 12.1.1993, Mr. Ethesham (A-58) informed him that Ijaz had come from Dubai and wanted to meet the respondent (A-109). The accused met Ijaz Khan at the house of Haji Yakub in presence of Anwar. Ijaz told them that in case something wrong happens to them they can talk to him over the telephone. Subsequently, they left leaving Munna and Anwar there. Yakub (AA) later told him that riots were increasing and he would take them out of India for training and using revolvers for saving themselves from the riots. The respondent (A-109) brought his passport from his house and delivered the same to Haji Yakub. Subsequently, the respondent (A-109) went to Dubai along Murad, Ethesham, Shakil, Shahnawaz on 14.2.1993. Yakub Haji came to meet them and said that training could not be given this time, and it would be done next time. They remained for 15 days in Dubai and their visa expired. They then came back to Bombay. Before going to Dubai, Yakub asked them to take an oath by placing their hands on the Quran that whatever they are doing, it was for the sake of Islam and they would not fight each other and would not divulge their talks to others.

18. Confession of Sultan-E-Rome Sardar Ali Gul (A-114): He was working as a driver a Marwari at Walkeshwar. After the demolition of Babri Masjid he lost his job because his employer was afraid of him as he was a Muslim. The accused (A-14) wanted to go to Saudi Arabia for search of work. Therefore, he got his passport ready. In the month of January, 1993, he met Qamar Khan. Ijaz Khan and Ethesham (A-58) talked them for 5-10 minutes. Then Ijaz told him that he had to go to Ethesham as and when he was called and he would be paid Rs.1,000/-, a pair of clothes and shoes. Ethesham would train him in working a revolver. On 14.2.1993, he went to Dubai along the others and stayed there for 14 days out any work/training and came back to India. He further disclosed that they were not given any training or any lectures (Taqreer) in Dubai.

19. Confession of Abdul Aziz Abdul Kader (A-126): He also accompanied the other co-accused to Dubai. He corroborated the version of other co-accused for going to Dubai and coming back to Bombay. Yeda Yakub advised him that he should learn to handle the arms as there was tension prevailing all round and the Muslims were being suppressed and beaten everywhere and therefore such training was necessary for their self defence, especially to face the Hindus. Muslims have suffered heavy losses. In case riots occurred in future then by learning the handling of weapons Muslims can effectively deal Hindus. When he (A-126) was in Dubai he went to see a person who knew to his brother and during the conversation he enquired from the respondent (A-126) the purpose for which he had gone to Dubai. The respondent (A-126) told him that he had come for taking training of handling of arms and on their return journey they would take some goods along them to earn some money in India. He cautioned the respondent (A-126) that the work was not good and advised him to go back.

20. Confession of Mohd. Iqbal Ibrahim (A-127): He corroborated the version of other co-accused and had admitted going to Dubai but he was not aware of the purpose for what he had been taken to Dubai. During their stay in Dubai, people used to talk occasionally about weapons. After 10-14 days of reaching Dubai, they came back to Bombay. He had been to Dubai three times earlier. After coming back to India he came to know that he was taken to Dubai for training in handling of arms.

21. Confession of Murad Ibrahim Khan (A-130): He corroborated the version given by other co-accused in the confessional statement that he had gone to Dubai. He further revealed that one day when they were in Dubai, Shakil told him that he would go to Pakistan for weapon training but the arrangement had not yet been finalized. After a few days they came to know that they had been taken for weapon training but arrangements could not be made and they had to return to Bombay and on expiry of their visa they came back.

22. Confessional statement of Shaikh Mohmed Ethesham (A-58): He disclosed that he was a close associate of Yeda Yakub and was involved in all kinds of smuggling activities. He revealed about the smuggling of arms and said that on 7.2.1993 when he was at the place of Hazi Yakub @ Yeda Yakub, and the latter informed him, Akbar, Babulal and Shahnawaz that Muslims had suffered a considerable loss in the riots and that they had to go to Dubai for training of arms and ammunition to protect themselves. He, Shahnawaz, and Babulal were ready to go to Dubai. Thus, they had gone to Dubai but came back out having any training.

23. Confession of Shahnawaz Khan (A-128): His confessional statement revealed that he had gone to Dubai along other co-accused. He came to know after going to Dubai that they were going for arms' training to be held in Pakistan. However, due to some reason arrangements could not be made for training. Thus, he came to Bombay along other co-accused namely Iqbal, Etheshem, Babulal and Shahid on 1.3.1993 and the remaining persons reached later on.

24. The Designated Court after appreciating the entire evidence has drawn a conclusion that the respondents may be under the impression that they were being sent there for training of arms so that it can be used in self defence and they came to know only when they were in Dubai that they were being sent for training to Pakistan. However, the training could not be finalized/arranged and they came back to Bombay. Therefore, the learned Designated Court had drawn the inference that as they did not have knowledge that they were going to Pakistan for training in handling of arms they could not be held guilty.

25. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.

26 We have gone through the entire record and we are of the view that none of the respondents was aware of the intention of the conspirators to send the respondents to Pakistan for training to deal the arms and ammunition rather they had been taken away to Dubai on false pretext and had been misguided. Thus, we fully agree the inference drawn and conclusion reached by the Designated Court. We find no reason to interfere the same. The appeal lacks merit and is accordingly dismissed.

State of Maharashtra through CBI Vs. Krishna Sadanand Mokal & Ors.

[Criminal Appeal Nos. 601 of 2011]

27. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA, acquitting the respondents of all the charges under TADA and Arms Act.

28 Facts and circumstances giving rise to this appeal are that all the respondents had been working as police constables in the Police Department of Bombay and at the relevant time, i.e., January 1993 were posted as constables at Police Station, Shrivardhan. After the Bombay blast on 12.3.1993, they had been charged for conspiracy in general as well as under Section 3(3) TADA and other charges for assisting and facilitating the accused persons to smuggle and transport the contraband articles, i.e., arms and ammunition and permitting the said goods to be taken further in lieu of bribe. The case against the said respondents had been that on 8th/9th of January, 1993, the arms, ammunition and explosives were smuggled in India and after the landing at Dighi Jetty when the contraband were being transported to Bombay in trucks, the said trucks were intercepted by the police of Shrivardhan Police Station headed by Inspector Patil (A-116). The police checked those vehicles for 10-15 minutes and permitted them to go after completing a detailed bargain the conspirators/accused and reaching the settlement of the huge amount of Rs.7,00,000/- as a bribe. The accused did not have cash thus, they had given 5 silver ingots as security which were subsequently returned by the police officials to the accused persons after the negotiated amount was paid. The respondents/constables were also put to trial along other co-accused (police officials) but they have been acquitted only on the ground that there was no iota of evidence to show that the respondents herein were also members of the Shrivardhan Police Station which had intercepted those trucks. Hence, this appeal.

29. Mr. Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that the respondents were police constables posted at Police Station Shrivardhan and therefore, they were also the members of the party which intercepted the trucks carrying the contraband. The learned Designated Court failed to appreciate the evidence on record and has wrongly acquitted the respondents of the charges leveled against them.

30. Ms. Farhana Shah, learned counsel appearing for the respondents has submitted that it is nobody's case that all the police force posted at Shrivardhan Police Station had gone to check/intercept the trucks carrying the contraband. In the instant case, there is nothing on record to show that either of the respondents was a member of the party which intercepted the trucks carrying the contraband. Thus, the appeal is liable to be dismissed.

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

32. In the confession of Mohmed Kasam Lajpuria (A-136) recorded by Superintendent of Police, CBI at New Delhi Camp, Mumbai, he disclosed that he was a close associate of Tiger Memon (AA) etc. and had been indulged in various criminal activities including smuggling. He had been participating in the landings and facilitating the transportation of the contraband and smuggled goods. In January, 1993, he planned a landing along Mohd. Dossa, Salim Kutta (A-134), Firoz, Qyum Sajani, Arif Lambu and the landing took place at Dighi Jetty. After getting the contraband goods from the sea to the seashore the same were loaded in two trucks arranged by Uttam Potdar (A-30). The trucks were intercepted by police headed by Inspector Patil and 6-7 constables from P.S. Shrivardhan. Inspector Patil (A-116) asked Saleem and Firoz whether they were landing and transporting the contraband out making any payment to the police. Meanwhile, Uttam Potdar (A-30) also came along one Custom Officer named Gurav (A-82) in a jeep. Uttam Potdar (A-30) spoke to the police people and it was decided that a sum of Rs.8,00,000/- should be paid to the police. As the accused persons did not have Rs.8,00,000/- in cash, the police kept 5 silver ingots them as a security. Inspector Patil (A-116) asked them to take the silver ingots back after making the payment in cash.

33. Uttam Potdar (A-30) revealed that he was a very close associate of smugglers including Tiger Memon (AA) and Mechanic Chacha (A-136) etc., and had been participating in landing and transportation of the contraband. He was called by Shri R.K. Singh, Assistant Collector (A- 102) on 4.12.1993 through a custom sepoy and asked about the earlier day's landing. Shri Gurav, Custom Inspector (A-82) also had contact the said accused (A-30) and after negotiating, it was decided to settle the issue of money. Accordingly, the matter was settled and amount was paid to the custom officers. This accused further revealed the mode of payment per landing to the Shrivardhan Police Station as well as the custom police. He revealed the incident on 9.1.1993 when the trucks were intercepted by the Shrivardhan Police. The vehicles were checked by two Hawaldars, named Mali and Muneshwar. He fully corroborated the statement of Mechanic Chacha (A-136) that as they had no money to pay to the police, they paid the silver ingots as security.

34. Dilip Pansare (PW.97) deposed that he was working as a mechanic in the State Transport Corporation at Shrivardhan Depot. He was close associate of Uttam Potdar (A-30). He accompanied Uttam Potdar (A-30) on 9.1.1993 when the vehicles carrying the contraband after landings were intercepted by Shrivardhan Police Station. He deposed that the vehicles after interception were thoroughly checked by two constables. The police team was headed by Inspector Patil (A-116) and there were 6- 7 constables him. He also gave full details of negotiation/settlement of the amount of bribe for releasing the vehicles and giving 5 silver ingots as security as they did not have the cash. Thus, he corroborated the statement of Uttam Potdar (A-30) as well as of Mechanic Chacha (A-136).

35. In the confessions of Dawood Phanse (A-14), he has deposed that he was a landing agent and was facilitating transportation of smuggled goods of various smugglers in partnership Sharif Abdul Gafoor Parkar (A-17) including Tiger Memon (AA). This accused (A-14) and Dadabhai (A-17) corroborated the version so far as this case is concerned only to the extent of payment of money to Shrivardhan Police Station for two landings. Mohd. Salim (A-134) corroborated the case to the extent of interception of vehicles carrying the contraband on 9.1.1993 by Shrivardhan Police at Gongdhar Phata. The police team consisted of one Inspector and few constables.

36. If the evidence of all the witnesses is read conjointly, it becomes evident that none of the witnesses had named either of the respondents. The other persons of the police team who had been named stood convicted. The respondents have been acquitted on the ground that in absence of Test Identification Parade or their identification by any of the witnesses/accused in the court, it was not safe to make a guess work that they or either of them could also be member(s) of the said police team which intercepted the contraband. The evidence on record reveal that police team headed by Inspector Patil was having 6-7 constables. There is nothing on record on the basis of which it could be assumed that the respondents were the members of the said team. It is nobody's case that the total strength of the Shrivardhan Police Station was 7 or 8, so it can be presumed that all except one or two might have come. The Sarpanchas of 7 villages in close proximity, deposed in court to falsify the alibi taken by the respondents that they were on police patrolling in their villages. Statements made by the Sarpanchas that none of the respondents had visited their village on patrolling cannot be a proof that the respondents were members of the team, which intercepted the said trucks.

37. The learned Designated Court dealt the issue elaborately and came to the conclusion that there was no material to connect the respondents the aforesaid incident and it was not safe to presume that the respondents were also the members of the police team which intercepted the said trucks carrying contraband.

38. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.

39. In view of the above, we do not see any cogent reason to interfere the impugned judgment. The appeal lacks merit and is, accordingly, dismissed.

State of Maharashtra through CBI Vs. Moiddin Abdul Kadar Cheruvattam

[Criminal Appeal No. 404 of 2011]

40. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges.

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

A. In addition to the main charge of conspiracy, he was also charged under Section 3(3) TADA, for collecting the funds for terrorist activities and distributing the same for propaganda against Hindus after the riots in Bombay after demolishing of Babri Masjid in December 1992.

B. The Special Judge under TADA has discarded all the confessional statements on the ground that the officer who recorded the confessional statement of the respondent and other co-accused did not fulfill the requirement of law by giving any warning to the said persons telling

(i) that they were not bound to make a confession and

(ii) if made, it could be used against them as evidence, and thus acquitted them of all the charges.

Hence, this appeal.

42. Shri Mukul Gupta, learned senior counsel appearing for the appellant has tried to impress upon us that undoubtedly the warning had not been administered in the first part of any of the said confessional statements but only after reflection period, when the said persons again appeared for making their respective statements they had been warned properly. If Part I and Part II of their statements are read together, it is evident that the said accused persons were fully aware that they were not bound to make the confession and if made, it would be used against them.

43 On the contrary, learned counsel for the respondent (A-48) has opposed the appeal contending that before the confession is recorded, Section 15 TADA and Rule 15(3) of the TADA Rules, require that the maker of the statement must be explained that he was not bound to make such statement and if so made, would be used against him. Thus, no interference is warranted.

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

45. Evidence against the respondent (A-48):

(a) Confessional statement of respondent (A-48)

(b) Confessional statement of Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20)

(c) Confessional statement of Aziz Ahmed Mohammed Ahmed Shaikh (A-21)

(d) Confessional statement of Ismail Abbas Patel (A-80)

46. First part of the confessional statement of the respondent (A- 48) recorded on 14.5.1993, reads as under: "My name is Mohiuddin Abdul Kadar, age 30 years, occupation Sales Representative, Dubai, Place of residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed S.S.C. in the year 1978. I myself informed the Inspector of Crime Branch that I wanted to make the confessional statement voluntarily. I was arrested by the Bombay Police on 3.4.93 from my residence at Dongri in connection the Bombay bomb Blast case. For this reason, I wanted to give my confessional statement. I have been explained about my making the confessional statement that the confessional statement, which I am going to make will be used against me. In this connection, I was given 48 hours. For reflection, I will be produced on 17.5.93, if I want to make the confessional statement."

Sd/-

Sd/-

DCP

Accused"

47. Similarly the first part of the confessional statements of co- accused Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20), Aziz Ahmed Mohammed Ahmed Shaikh (A-21) and Ismail Abbas Patel (A-80) are very cryptic. Further, there is no explanation or warning therein as required by law. Therefore, such confessions are liable to be discarded.

48. This Court in S.N. Dube v. N.B. Bhoir & Ors., (2000) 2 SCC 254 held that the compliance of Section 15 TADA and Rule 15 of TADA Rules, is mandatory. It is necessary before making of the confessional statement that the accused must be warned that confessional statement if made will be used against him and further that he is not bound to make the same. "Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it." The court further clarified that a confessional statement would not be adversely affected if the certificate and memorandum are mixed or the format so prescribed is not used by the recording officer.

49. This Court in Lal Singh v. State of Gujarat & Anr., (2001) 3 SCC 221 held that: "23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing in or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh v. State of Punjab (1994) 3 SCC 569, were not followed. In our view, this submission is out any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N. Dube (supra), by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC ; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini, (1999) 5 SCC 253, Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini (supra) was considered in S.N. Dube (supra). The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co- accused also."

50. In Bharatbhai v. State of Gujarat, (2002) 8 SCC 447, this Court held:

"46. In view of the aforesaid discussion, our conclusions are as follows:

A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory.

B. The language of the certificate and the memorandum is not mandatory.

C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance what is required to be contained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such contemporaneous record.

D. In the absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer.

47. In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained."

51. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.

52. In view of the above, we are of the considered opinion that the learned Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements has not been recorded in consonance the requirement of statutory provisions. We concur the view taken by the Special Judge. The appeal lacks merit, and is accordingly, dismissed.

State of Maharashtra through CBI Vs. Asfaq Kasam Hawaldar

[Criminal Appeal No.405 of 2011]

53. This appeal has been preferred against the final judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting the respondent (A-38) charged for larger conspiracy and under Section 3(3) TADA.

54. In addition to the charge of conspiracy, Respondent (A-38) has also been charged for the commission of offences punishable u/s 3(3) TADA.

55. The case of the prosecution against him has been that:

A. The accused (A-38) along his co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shekhadi, Taluka: Shrivardhan District: Raigad, which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon (AA) and associates for being used in commission of terrorist acts. ?

B. That the accused (A-38) transported arms, ammunition and explosives which took place on 7.2.1993 which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates for commission of terrorist acts in motor truck no. MHT 6745 driven by this accused from Shekhadi to Wangni Tower.

C. The Special Judge after conclusion of the trial acquitted the respondent of all the charges. Hence, this appeal.

56. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that as the respondent had been the driver of the vehicle which carried the contraband, i.e., arms, ammunition and explosives and therefore, there was no reason for his acquittal by the Designated Court.

57. Per contra, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that there is nothing on record to show that the respondent was driving the alleged vehicle on that particular day. The registered owner of the vehicle was neither made an accused nor a witness in the case and no material had been placed on record to show that on the fateful day the respondent was driving the vehicle. Thus, the findings of the learned Designated Court do not require any interference.

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

59. Confessional statement of Tulsi Ram Dhondu Surve (A- 62): He revealed that he was working as a Chowkidar at Wangni Tower and came in contact the smugglers and facilitated their activities many a times for loading and unloading the contraband smuggled by them. He (A-62) used to serve them tea and food. On being asked by Dawood he (A-62) had agreed to help the smugglers in loading and unloading at the said tower for consideration. On 9.1.1993 at 8 hrs. in the night one Maruti car entered the premises of the tower and Sarfaraz (A-55), son of Dawood Phanse got down from the Car and asked him (A-62) to prepare tea. He prepared tea and served the same to 9-10 persons. Tiger Memon (AA) was also them. After having tea they went away and came back at 12 o'Clock in the night one truck and a tempo, a jeep and a Maruti car. Tiger Memon (AA) and his associates Iqbal, Anwar, Munna, Sharif alighted from the vehicles and then the contraband was reloaded from the truck to the tempo. Tiger Memon (AA) had given his men guns and pistols in their hands and after reloading the contraband they all went away. On 7.2.1993, he came to know through Sharif that Dawood Phanse's (A-14) contraband was about to come. The accused (A-62) informed his other colleagues at about 9.30 in the night. He came along More from the tower and waited at the Kuchha road for them. After sometime a truck, followed by three jeeps, a rickshaw and two motorcycles came there. Subsequently, a truck and a jeep carrying some goods also came to the tower. The truck carrying the goods was owned by one Hasan Adhikari, r/o Mhasla and was driven by Asfaq Kasam Hawaldar (A-38). Along the truck, Dawood Phanse (A-62), Dadamiya Parkar (A-17), Sharif Adhikari, Abdul Gharatkar were there in a jeep. Tiger Memon and his above-mentioned associates carrying guns and pistols got down from another jeep. Sarfaraz Phanse (A-55), Khalil Nazir and Sajjad Nazir kept the watch during this period. After transferring the goods from one vehicle to another all vehicles left from there. The wooden packings of the goods were burnt in the ditch near the tower.

60. Deposition of Vyankatesh Hirba (PW.588) stated that he made the recovery of the truck used in the said offence.

61. The Designated Court has acquitted the respondent (A-38) of the said charges only on the ground that the truck was owned by Hasan Adhikari and the prosecution did not consider it proper to make Hasan Adhikari as an accused or as a witness to find out as to whether the respondent (A-38) had been a regular driver him and as to whether on that particular date he was on duty. No person had identified him as he was driving the said vehicle on the said date. The confessional statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by any other witness/accused.

62. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.

63. We find no cogent reason to interfere the order passed by the Designated Court and the appeal is accordingly dismissed.

State of Maharashtra Vs. Ismail Abbas Patel

[Criminal Appeal No.394 of 2011]

64. This appeal has been preferred against the final judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting the respondent charged under Section 3(3) and Section 120B IPC and other provisions. 65. Facts and circumstances giving rise to this appeal are that :

A. In addition to main charge of conspiracy, the respondent was charged as he participated in the conspiratorial meeting at Dubai, and made the arrangement and financed the trip for his co-accused Shaikh Aziz to Dubai. Thus, he was charged under Section 3(3) TADA and various provisions of IPC.

B. The Designated Court after conclusion of the trial acquitted the respondent of all the charges. Hence, this appeal.

66. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that there was ample evidence against the respondent of his involvement in the aforesaid offence. However, the learned Designated Court has wrongly acquitted him. Thus, the appeal deserves to be allowed.

67. Per contra, learned counsel appearing for the respondent has opposed the appeal contending that the findings of fact recorded by the court below are based on evidence and by no means, the same can be held to be perverse. Thus, no interference is called for.

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

69. Evidence against the respondent is his own confession recorded under Section 15 TADA and the confessions of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-21).

70. The confession of the respondent and other co-accused i.e. A-20 and A-21 has been discarded by the Designated Court for the reason that it had not been recorded strictly in accordance the provisions of Section 15 TADA and Rule 15 of TADA Rules, 1987. The confessional statement of these accused had been recorded in two parts and there had been some intervening period for re-consideration. While recording the first part of the confession, the officer recording the statement did not inform the accused that he was not bound to make the confession and further that in case he makes it, it would be used against him as evidence.

71. In the first part of the confessional statement of the respondent as his particulars have been described and further stated that he was giving his confession of his own accord. It was further recorded that the accused had been given 48 hours to reconsider. ?

72. Even in the second part of the confession which was recorded on 4.5.1993 the respondent had not been warned that he was not bound to make the confession. Though he was asked as to whether he was making the statement under any pressure and whether he was willing to make the confession but even then he was not warned that he was not bound to make the statement. The certificate issued by the officer regarding the confessional statement mentions the belief of the recording officer that the statement was signed of his own will.

73. Exactly the same is the position so far as the confessional statements of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-21) are concerned.

74. The Designated Court has discarded the confessional statements as the same was not in accordance the said provisions. We concur the finding of the Designated Court in view of the law laid down by this court in S.N. Dube (supra), where it was held that the compliance of Section 15 and Rule 15 of TADA, 1987 is mandatory. [Vide: Lal Singh (supra) and Bharatbhai (supra)].

75. As there is no admissible evidence on record connecting the respondent (A-80) to the crime, he has rightly been acquitted by the court below. Thus, no interference is required and the appeal is accordingly dismissed.

State of Maharashtra Vs. Rukhsana Mohd. Shafi Zariwala

[Criminal Appeal No.1033 of 2012]

76. This appeal has been preferred against the final judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993, acquitting the respondent of all the charges.

77. Facts and circumstances giving rise to this appeal are that : In addition to the main charge of conspiracy, the case against the respondent had been that she accompanied Ashrafur Rehman (A- 71) and helped in the transportation of bags containing 85 handgrenades, 350 electric detonators and 3270 live cartridges of AK-56 rifles from Jogeshwari to Musafirkhana, Bombay. She thereby aided and facilitated the distribution of fire arms, ammunition and explosives which were smuggled into India by the co-accused for terrorist activities. After conclusion of the trial, the Designated Court acquitted the respondent of all the charges. Hence, this appeal.

78. Shri Mukul Gupta, learned senior counsel appearing for the appellant-State has submitted that the respondent had accompanied her husband while carrying the arms, ammunition and explosives, and thus, she was guilty of facilitating the distribution of arms, ammunition and explosives etc. Hence, the Designated Court erred in acquitting her of all the charges.

79. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that the Designated Court has examined the entire evidence and came to the conclusion that she had been unnecessarily dragged in the trial. She was not involved anywhere and merely being the wife of absconding accused, she had been forced to face the trial. Considering the parameters laid down by this Court to entertain the appeal against acquittal, the case is not worth for interference. Thus, the appeal is liable to be dismissed.

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

81. Confessional statement of Parvez Nazir Ahmed Shaikh (A-12) revealed about the incident of transportation of the contraband arms and ammunition from Jogeshwari to Musafirkhana. He disclosed that he was a close associate of Imtiyaz and Tiger Memon. He knew Shafi Zariwala, the husband of the respondent who was working as driver of Tiger Memon very well. He revealed his participation on various times in landing and transportation. On 11.3.1993 at 12 noon he went to the house of Tiger Memon. At that time Asgar was also present there. Tiger Memon (AA) gave him two suit cases, two handbags (just like neck hanging bags) and one big suit case and asked him to go to Musafirkhana. He and Asgar took all the goods and kept the same in room no.17 of Musafirkhana and their curiosity got the best of them and they opened the bags and found that one bag contained AK-56 rifles and the other bag contained some handgrenades and pen shaped pipes. They closed the bag and went to Shafi's house and from there went to Mahim. After some time, Shafi also came by jeep and took him (A-12) to his sister-in-law's house at Jogeshwari. Shafi's wife (respondent herein) was also there. Shafi kept 2 AK-56 rifles and some handgrenades in one bag and in the bag he kept some pistols there. The accused (A-12), Shafi, his wife Rukhsana (respondent) and his sister-in-law all left for Mahim at about 8.30 P.M. Shafi dropped them at Mahim and told them to go to Musafirkhana by a taxi and keep those bags in room no.17 and after that came to Shafi's house. He explained that the goods had been kept at Musafirkhana on the instruction of Tiger Memon (AA). He revealed that after the Bombay Blast on 12.3.1993 he had shifted the contraband from room nos.16 and 17 to the lavatory and further how the recovery was made.

82. So far as the incident of transporting the goods from Jogeshwari to Musafirkhana is concerned, Ashrafur Rehman Azimulla Shaikh (A-71) revealed that he had booked two rooms i.e., Room Nos.16 and 17 on the first floor in Musafir Khana. On the intervening night of 11.3.1993 and 12.3.1993 at about 1.00 a.m. Tiger Memon (AA) called him on telephone and asked him to reach Musafirkhana. Tiger Memon met him there. There were three big suit cases and one small suit case, two hand bags, three or four plastic bags containing cartridges, seven machine guns and seven small pistols etc. He has given some reference to this incident, however, his statement was discarded by the Designated Court in view of the fact that the officer who recorded his statement did not meet the statutory requirement of giving him the statutory warning that he was not bound to make his confession and if made it would be used against him.

83. We have gone through his confessional statement. No such requirement had been ensured and, thus, the same has rightly been rejected by the court below.

84. The Special Judge acquitted the respondent on the grounds: ?"(a) That there is no corroborative material available to support the contents of the confession of A-12 Parvez Nazir Ahmed Shaikh and further no recovery has been affected from room No. 17 of the Musafirkhana. (b) That the confession made by A-71 Ashrafur Rehman in support of A-12 Parvez Nazir Ahmed Shaikh's confession is inadmissible because it was not recorded by the Deputy Commissioner of police (hereinafter referred to as DCP) by following the statutory procedure and that A-71 Ashrafur Rehman was not given the requisite warning that he ?was not bound to make confession. Further, the requisite certificate/memorandum as prescribed in Rule 15 (3) of TADA(P) Rules, was also not recorded".

85. The parameters laid by this Court in entertaining the appeal against the order of acquittal have to be applied.

86. The only allegation against the respondent had been that she had accompanied her hushand (AA) while he carried the arms, ammunition and explosives. Further, there is nothing on record to show that she had any knowledge of such arms, and the purpose for which the same had been brought. Further, the sister-in-law of the respondent was neither made the accused nor a witness. Her husband is still absconding. In such a fact-situation, the findings recorded by the learned Designated Court do not warrant any interference. The appeal lacks merit, and is accordingly dismissed.

The State of Maharashtra Vs. Sayyed Ismail Sayyed Ali Kadri

[Criminal Appeal No. 594 of 2011]

87. This appeal has been preferred against the impugned judgment and order dated 2.8.2007 passed by the Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, in Bombay Blast Case No. 1/1993, acquitting the respondent (A-105) of all the charges.

88. Facts and circumstances giving rise to this appeal are that : In addition to the main charge of conspiracy, the respondent was also charged for having abetted and knowingly and intentionally facilitating the commission of terrorist acts in effecting the landing of contraband goods such as arms, ammunition and explosives at Dighi Jetty on 9.1.1993. He was further charged for concealing contraband at his house and also in the mango grove of Abdul Razak Subedar and further for his involvement in disposal of the said articles at Kandal Gaon Creek.

89. The Special Judge after conclusion of the trial, acquitted the respondent of all the charges. Hence, this appeal.

90. Mr. Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent being father of Shabir Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) (dead after being convicted by the Special Judge) was a party to conspiracy and of the plan of committing terrorist acts and was fully aware as the contraband had been concealed in his house his consent and connivance. He had also participated when the contraband arms and ammunition were shifted from his house to mango grove of Abdul Razak Subedar and concealed there by digging the earth. He was involved in disposal of the said articles in the creek. The Special Judge has wrongly given the benefit of doubt to him. Thus, the appeal deserves to be allowed.

91. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that even if his sons Shabir Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) had been involved in the offence, there is nothing on record on the basis of which it could be held that the respondent had committed any offence. More so, he had been in jail for 2 1/2 years during the trial. He is 70 years of age, old and bed ridden person. The incident occurred 20 years ago, so it is not a case warranting interference against the order of acquittal.

92. We have considered the rival submissions made by learned counsel for the parties and perused the record. Respondent accused (A-105) did not make any confession. Confession of Faki Ali Faki Ahmed Subedar (A-74) :

93. The confessional statement of Faki Ali Faki Ahmed Subedar (A- 74) revealed that Shabir had approached him in the 2nd/3rd week of March, 1993 for help as Feroz Khan had come from Bombay and told him that after the riots the situation was very bad in Bombay and some boxes containing fire arms and bags containing cartridges were to be dumped in the creek. He asked for help taking the said articles in the boat. The acccused (A-74) agreed. Shabir, his brother Jamir (A-133, since dead), Abdulla Surti and Gambas (A-81) took out three wooden boxes and 6 green coloured bags kept under the straw and loaded them in a boat lying near the shore of the creek and went in the water towards Kandalwada creek. The next day, Shabir came and told him that certain arms, ammunition and cartridges were to be hidden in the mango grove and he wanted the said accused to help him. The accused went along him. At that time, Gambas, Abdulla Surti, Jamir and Jamir's father were there in his house. After reaching there, they took out 13 coloured bags containing cartridges and guns wrapped in plastic paper and kept there in three bundles from underneath the straw. These articles were put in the pit prepared earlier in the mango orchard of Abdulla Razak Subedar who was living in Nairobi at the time and the pit was covered soil. After about a month, he was interrogated by the police, wherein he disclosed about the said 13 green coloured bags containing cartridges and three bundles containing guns had been hidden in the mango orchard of Abdul Razak Subedar. The hidden material was recovered from the said mango grove and it contained 4 country made guns, 12 foreign made guns, 36 magazines and 26 cartridges. Confession of Jananrdan Pandurang Gambas (A-81):

94. He disclosed that he was not able to maintain a good business so some smugglers persuaded him to purchase one new boat and indulge in transportation of smuggled goods particularly silver and gold through the sea. Shabir used to give him Rs.1000/- for such activities. On 2.12.1993, he was asked by Shabir Kadri to come to the Jetty at around 9.00 p.m., for unloading silver and gold. So he participated in the said landing and brought the goods to the sea shore the help of Mohd. Chacha (A-136) and Uttam Potdar (A-30) and for that many persons had helped and Uttam Potdar (A-30) gave Rs. 5,000/- to each and every person for their assistance. After the Bombay Blast, one day Jamir (A- 133, since dead) and his brother Shabir called him (A-81) at Agarwada and he was told that goods unloaded on the last occasion contained guns and explosive substances i.e. "gola barood" and had to be hidden beneath the ground and he was directed to remain present in the mango grove after dinner and dig the pit for hiding the contraband. Accordingly, a pit was prepared and three boxes each containing 4 rifles wrapped in gunny bags and 26 boxes of thermal packing were buried in the ground. He was paid Rs.1,000/- for that job. Shabir threatened him not to disclose the fact to anyone. When these articles were buried, Shabir Jamir, Faki Ali Faki Chacha, Abdulla Surti, Sayyed Ismail Kadri, father of Shabir were also present.

95. The recovery of the said material had been made at the instance of Faki Ali Faki Chacha (A-74) from the mango grove.

96. After appreciating the aforesaid evidence the Special Judge came to the conclusion that the respondent (A-105) had not made any confession. So far as the confession of Faki Ali Faki Chacha (A-74) is concerned, it contained reference regarding the presence of one father, but the same does not specifically reveal A-105 being person while the goods were being concealed after taking them from the house of the respondent-accused to the mango grove. The same conclusion was drawn regarding the confession of Jananrdan Pandurang Gambas (A-81). He (A- 81) made a passing remark revealing the presence of respondent A-105 at the relevant time. Still the same specifically failed to depict any act committed by him in relation the contraband goods. More so, there seems to be some contradiction and variance in the sequence of events as given in the aforesaid confessions. Thus, it was difficult to accept that the said material in confession of the co-accused can be accepted out there being any independent corroboration, though the corroboration was required only on material points and not on each and every point. The confessional statement of the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent enough for establishing involvement of the respondent (A-105) in commission of the acts amounting to a criminal offence required to be strictly proved.

97. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied. 98. In the instant case, there is no evidence on record to show that the respondent had been involved in the crime in any manner. If his sons had indulged in the offence, his mere presence in his house, where the contraband had been hidden, would not make the respondent responsible. We do not find any cogent reason to interfere the impugned judgment and order. The appeal lacks merit and is accordingly dismissed.

State of Maharashtra Vs. Mohd. Ahmed Mansoor

[Criminal Appeal No. 402 of 2011]

99. This appeal has been preferred against the judgment and order dated 2.8.2007, passed by the Special Judge of the Designated Court under the TADA in the Bombay Blast Case No. 1 of 1993. The respondent has been acquitted of all the charges. 100. In addition to the general charge of conspiracy, the respondent was charged under Section 3(3) TADA.

101. After conclusion of the trial, the Designated Court acquitted the respondent of all the charges. Hence, this appeal.

102. Shri Mukul Gupta, learned senior counsel appearing for the State argued that the respondent received the co-accused at Dubai and facilitated their stay at Dubai and further facilitated their transit to Pakistan where they took training for handling of arms and ammunition etc. When co-accused came back from Pakistan through Dubai, their transit and stay was again facilitated by him. Therefore, his acquittal of all the charges deserves reversal.

103. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that there is no iota of evidence showing involvement of the respondent in any overt act or conspiracy. The well reasoned judgment of the Designated Court does not warrant interference by this court.

104. We have considered the rival submissions made by learned counsel for the parties and perused the record. The respondent did not make any confessional statement. Evidence against the respondent : Confessional statement of Mohd. Hanif Mohd Usman Shaikh (A- 92):

105. The accused (A-92) revealed that he got a passport in the year 1987 and visited Dubai and other gulf countries several times prior to Bombay Blast. During the riots in Bombay in December, 1992 and January, 1993, he was working as the driver of Salim Kurla. Salim Kurla asked A-92 to go to Dubai. A-92 agreed and he was paid Rs. 1000/- in cash and Salim Kurla agreed to arrange his ticket etc. Ticket of A-92 to Dubai was arranged by Salim Kurla as was done by him for Sayeed, Usman and Ibrahim. All of them reached Dubai. There two persons named Ahmed and Farooq were waiting for them outside the airport. From there, A-92 and other accused were taken to Delhi Darbar Hotel in two cars. On the next day, Ahmed and Farooq came to the hotel and told them that they would go to Pakistan for work. They were also given some money. After 4 days, Salim, Ahmed and Farooq came to the hotel