APPEALS FILED UNDER ARMS ACT/EXPLOSIVE
SUBSTANCES ACT
PART-6
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1060 of 2007
Sanjay Dutt (A-117) .... Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
WITH
Criminal Appeal No. 1102 of 2007
Yusuf Mohsin Nulwalla (A-118) .... Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
AND
Criminal Appeal No. 1687 of 2007
Kersi Bapuji Adajania (A-124) ....
Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
WITH
Criminal Appeal No. 596 of 2011
WITH
Criminal Appeal No. 1104 of 2007
AND
Criminal Appeal No. 1026 of 2012
WITH
Criminal Appeal No. 1001 of 2007
AND
Criminal Appeal No. 392 of 2011
********
Criminal Appeal No. 1060 of 2007
Sanjay Dutt (A-117) .... Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
WITH
Criminal Appeal No. 1102 of 2007
Yusuf Mohsin Nulwalla (A-118) .... Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
AND
Criminal Appeal No. 1687 of 2007
Kersi Bapuji Adajania (A-124) ....
Appellant(s)
vs.
The State of Maharashtra,
through CBI (STF), Bombay ….
Respondent(s)
*********
P. Sathasivam, J.
1) Mr. Harish Salve, Mr. Surendra Singh, Mr. B.H. Marlapalle learned senior counsel appeared for A-117, A-118, A-124 respectively and Mr. Raval, learned ASG duly assisted by Mr. Satyakam, learned counsel appeared for the respondent-CBI.
2) The above said appeals are directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 31.07.2007 respectively by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
3) A common charge of conspiracy was framed against all the co-conspirators including the appellants. 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 with 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, hand grenades 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 with 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/co-conspirators, 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 Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim 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. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1- A), (1-B)(a) of the Arms Act, 1959, Sections 9B (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 and within my cognizance.”
In addition to the above-said principal charge of conspiracy, the appellants were also charged on other counts which are as under:
Sanjay Dutt (A-117):
At head Secondly; The appellant, in pursuance of the aforesaid criminal conspiracy and during the period from January, 1993 to April, 1993, agreed to keep in his possession and acquired 3 AK-56 rifles and its ammunition, one 9mm pistol and its cartridges and hand grenades, un-authorisedly, which were part of the consignments smuggled into the country by Dawood Ibrahim Kaskar and his associates knowingly and intentionally that these were smuggled into the country for the purpose of committing terrorists acts and that he thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly; The appellant, by doing the aforesaid act, unauthorisedly, in Greater Bombay which is specified as a Notified Area under Clause (f) of Sub Section (1) of Section 2 of TADA and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly; The appellant possessed the above mentioned arms and ammunitions with an intent to aid terrorists and contravened the provisions of the Arms Act, 1959 and the Arms Rules, 1962, the Explosive Substances Act, 1908 and the Explosives Rules, 2008 and thereby
committed an offence punishable under Section 6 of TADA.
At head Fifthly; The appellant, by doing the aforesaid act, committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A) (1-B)(a) of the Arms Act, 1959.
Yusuf Nulwalla (A-118):
At head Secondly; The appellant acquired AK-56 Rifles and its carridges and one 9mm pistol and its cartridges which were smuggled into the country for committing terrorist acts and destroyed the said AK-56 Rifle with the assistance of Kersi Adajania (A-124) and entrusted him the 9mm pistol and its cartridges for safe custody and thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly; The appellant acquired the abovementioned arms and ammunitions from the house of Sanjay Dutt (A-117) and possessed the same, unauthorisedly, in a notified area of Greater Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly; The appellant acquired and possessed the abovementioned arms and ammunitions and failed to give information to Police/Magistrate with an intent to aid terrorists and thereby committed an offence punishable under Section 6 of TADA.
At head Fifthly; The appellant, by doing the aforesaid act, committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.
At head Sixthly; The appellant caused destruction of the above mentioned arms and ammunitions with an intention to screen him and other co-conspirators from legal punishment and thereby committed an offence punishable under Section 201 of the IPC.
Kersi Adajania (A-124):
At head Secondly; The appellant aided and abetted Yusuf Nulwalla (A-118) in destroying AK-56 rifle and disposing of 9mm pistol and its cartridges which were smuggled into the country for committing terrorist acts and thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly; In the first week of April, 1993, the appellant had in his possession one AK-56 rifle, one 9 mm pistol and its rounds in a notified area of Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly; The appellant possessed the said arms and ammunitions with an intention to aid terrorists and thereby committed an offence punishable under Section 6 of TADA.
At head Fifthly; The appellant, by possessing the abovementioned arms and ammunitions, unauthorisedly, committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.
At head Sixthly; The appellant caused destruction of the above mentioned AK-56 rifle, 9mm pistol and its ammunitions which were smuggled into the country for commission of terrorist acts with the intention of screening himself and the other co-conspirators from legal punishment and thereby committed an offence punishable under Section 201 of the IPC.
4) The appellants have been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
Sanjay Dutt (A-117):
A-117 has been convicted for the offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 6 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. However, the appellant was not found guilty of all other offences for which he was charged and, accordingly, acquitted for all the said offences.
Yusuf Mohsin Nulwalla (A-118):
(i) A-118 has been convicted for the offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to RI for 5 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months.
(ii) The appellant has been further convicted for the offence punishable under Section 201 of IPC and sentenced to suffer RI for 2 years. However, the aforesaid accused being found not guilty of all other offences for which he was charged at trial.
Kersi Bapuji Adajania (A-124):
(i) A-124 has been convicted for the offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 2 years alongwith a fine of Rs. 25,000/-, in default, to suffer further RI for a period of 6 months.
(ii) The appellant has been further convicted for the offence punishable under Section 201 of IPC mentioned at head sixthly and sentenced to suffer RI for 2 years. However, the aforesaid accused also being not found guilty of all other offences for which he was charged at trial.
Brief Facts:-
5) Before adverting to the detailed analysis of the evidence and the contentions urged, the story of the prosecution is as under:
(a) Babri Masjid at Ayodhya was demolished on 06.12.1992. After its demolition, violence broke out throughout the country. Tiger Memon (AA) and Dawood Ibrahim (AA), a resident of Dubai, in order to take revenge of the said demolition, formulated a conspiracy to commit terrorist act in the city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and ammunitions from abroad. Tiger Memon, in association with his men, particularly, the accused persons, received those arms and ammunitions through sea-coasts of Bombay. The evidence on record establishes that the said consignment was a result of a conspiracy between Dawood Ibrahim Kaskar, Mohammed Dosa and Tiger Memon (all three absconding accused).
(b) On 15.01.1993, Samir Hingora (A-53), Hanif Kandawala (A-40), Ibrahim Musa Chauhan@Baba (A-41) and Abu Salem (A-139) - then absconding, came to the residence of the appellant (A-117) at Pali Hill, Bandra, Bombay and told him that they would deliver the weapons tomorrow i.e., on 16.01.1993. On 16.01.1993, A-53, A-41 and A-139 delivered 3 AK-56 Rifles and 250 rounds of ammunitions and some handgrenades at the residence of A-117. On 18.01.1993, out of the abovesaid 3 AK-56 Rifles and ammunitions, 2 rifles and some ammunition were taken away by co-accused persons including one Mansoor Ahmed (A-89).
(c) On 12.03.1993, bomb explosions took place at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores. (d) On 18.04.1993, A-89 was taken in police custody whereas A-117 was arrested from the Mumbai International Airport on 19.04.1993 upon his arrival from Mauritius. On the same day, at about 15:30-15:40 hrs., he made a statement to the police that the rifle and the pistol and its rounds thereof have been kept with A-118 and that he would identify him and his house in Dongri, Umarkhari. He also led the police party to the house of A-118 at 15:45 hrs. When wherebaouts of A-118 were searched, it was found that he was detained by the Dongri Police Station in connection with the non-renewal of Arms licence.
(e) A-118 was summoned from Dongri Police Station and produced before DCB-CID. He made a statement mentioning the name of A-124 and led the police party to his house.
(f) During investigation, A-124 produced a spring and a rod remanent of the burnt AK-56 and also made a further statement regarding 9mm pistol and led the police party to A-125. A-125 made a statement and after that the police party proceeded to the house of A-120.
(g) A-120 produced a bag containing box wherein the pistol and its cartridges were found. His statement was recorded and the articles were seized and a Panchnama was drawn.
(h) All the above facts form part of the complaint culminated into the registration of a Local Act Case (LAC) bearing No. 21 of 1993 in respect of the abvoesaid 5 persons, namely, A-117, A-118, A-124, A-125 and A-120.
The said complaint mentioned that the investigation being carried out in furtherance of C.R. No. 70 of 1993. The sequence of events after the arrest of A-117 till the recovery of pistol from A-120 formed part of an unbroken chain inseparably connected with each other.
(i) On 22.04.1993, Mr. Krishan Lal Bishnoi, the then DCP (PW-193), who was investigating Worli Blast from 13.03.1993 was withdrawn from investigation. On 26.04.1993, A-117 expressed his desire to make a confession and, accordingly, he was produced before PW-193, who after recording the preliminary statement (First part), awarded him a period of 48 hours for cooling off.
(j) On 27.04.1993, the confession of A-118 was recorded by Mr. Bishnoi (PW-193) in first part and a further time for reflection was awarded to him.
(k) On 28.04.1993, PW-193 recorded the second part of the confession of A-117. Similarly, on 29.04.1993, the confession of A-118 was recorded by PW-193 which remained un-retracted.
(l) On 03.05.1993, A-117 was sent to the judicial custody. On 05.05.1993, A-117 filed a writ petition before the Bombay High Court and the High Court released him on interim bail with the direction that the bail granted to A-117 would continue till the filing of charge sheet in the Designated Court and after that the said Court would consider his bail application.
(m) Between 18th and 20th May, 1993, and 24th and 26th May, 1993, confessions of A-53 and A-89 respectively were recorded by PW-193.
(n) On 04.11.1993, a consolidated charge sheet was filed against all the accused persons including the appellants (A- 117, A-118 and A-124). On 19.06.1994, A-117 applied for bail before the Designated Court. By order dated 04.07.1994, the Designated Court dismissed the said application.
(o) Against the said order, A-117 filed a special leave petition before this Court and prayed for grant of bail. After hearing the bail petition, this Court, by order dated 18.08.1994 in Sanjay Dutt vs. State (I), (1994) 5 SCC 402, referred the matter to the Constitution Bench on the question of interpretation and construction of the provisions of TADA, namely, Section 5 as well as Section 20. By order dated 09.09.1994, the said reference was answered by the Constitution Bench in Sanjay Dutt vs. State (II), (1994) 5 SCC 410. After the reference was answered, the matter was placed before the regular Bench for consideration of the bail application. By order dated 23.09.1994, this Court rejected the application for bail filed by A-117. On 09.11.1994, A-117 filed a detailed retraction.
(p) In June, 1995, in view of the directions of this Court in Kartar Singh vs. State of Punjab, (1994) 3 SCC 569, the Central and State Government set up a Review Committee in order to individually review the cases of the accused persons involved in the Bombay bomb blasts case to consider whether or not the provisions of TADA are applicable against individual accused persons and whether or not any of the accused persons ought to be entitled to bail? On 08.08.1995, the report of the Review Committee recommended that the public prosecutor, on certain parameters, may recommend certain cases for bail. The case of A-117 was one such case that was considered for grant of bail by the public prosecutor. The said report was filed by the prosecution before the trial Court on 09.08.1995. The CBI, in M.A. No. 312 of 1995, filed an application before the Designated Court stating that they have no objection for
grant of bail to A-117 and 11 others.
(q) On 11.09.1995, in view of the report of the Review Committee, A-117 renewed his prayer for bail before the Designated Court but the Designated Court again dismissed the said application. In September, 1995, challenging the said order, A-117 filed Criminal Appeal No. 1196 of 1995 before this Court and prayed for grant of bail. On 16.10.1995, this Court granted bail to him till the completion of his trial. (1995 (6) SCC 189).
(r) By order dated 28.11.2006 and 31.07.2007, the appellants (A-117, A-118 and A-124) were convicted and sentenced by the Designated Court as mentioned earlier.
Evidence
6) The prosecution relied on the following evidence which is in the form of:-
(i) the evidence of their own confessions;
(ii) confessions made by other co-conspirators; (coaccused)
(iii) Deposition of Prosecution witnesses, viz., – Shri Krishan Lal Bishnoi (PW-193), the then DCP, Pandharinath H. Shinde (PW-218)- who was on guard duty at the bungalow of Sunil Dutt, Manohar Vasudev Shirdokar (PW-219)-Sr. Inspector of Police, Suresh S. Walishetty (PW-680), Rajaram Ramchandra Joshi (PW-475), API, Panch Witness Shashikant Rajaram Sawant (PW-211), Gangaram Bajoji (PW-265)-independent witness and Karmegam Algappan, PW-472 attached with computer cell of MTNL, Malabar Hill and;
(iv) documentary evidence.
Submissions made by Mr. Harish Salve, learned senior counsel for the appellant (A-117)
7) Mr. Harish Salve, learned senior counsel for A-117, at the foremost, submitted that reliance on the confessional statement made by A-117 is impermissible. He pointed out that the contention that the judgments of this Court have held that the prosecution can rely on the confession of an accused made before a police officer in every case where the accused is charged of a TADA offence, as long as the trial is joint, has been misconceived. He also pointed out that if the language of the provisions led to a situation that a confession to the police becomes admissible irrespective of the fate of the TADA charge, then it would lead to invidious discrimination between the accused, who were charged (but acquitted) under TADA along with other offences and those who were accused only of non-TADA offences.
8) Mr. Harish Salve further pointed out that in PrakashKumar @ Prakash Bhutto vs. State of Gujarat (2005) 2 SCC 409, it was contended before the Court that “rigours of Section 12 are discriminatory and attract the wrath of Articles 14 and 21 of the Constitution as it empowers the Designated Court to try and convict the accused for the offences committed under any other law along with the offences committed under TADA thereby depriving the rights available to the accused under the ordinary law.” This contention was rejected by holding that “Section 12 is to take care of the offences connected with or incidental to terrorist activities. The other offences being connected and inextricably intertwined with the terrorist act.”
9) He further pointed out that a Bench of five Judges of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410, had observed in paragraph 14 that “the construction made of any provision of this Act must therefore be to promote the object of its enactment to enable the machinery to deal effectively with the persons involved in, and the associated with, terrorist and disruptive activities while ensuring that any person not in that category should not be subject to the rigors of the stringent provisions of the ….Act. It must, therefore, be borne in mind that any person who is being dealt with and prosecuted in accordance with the provisions of the TADA must ordinarily have the opportunity to show that he does not belong to the category of persons governed by TADA. Such a course would permit exclusion from its ambit of persons not intended to be covered by it……”
In paragraph 17, this Court cited with approval an earlier decision, viz., Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj BijayaI, (1990) 4 SCC 76 in which it was observed that “when a law visits a person with serious penal consequences, extra care must be taken to ensure that those whom the Legislature did not intend to become by the express language of the Statute are not roped in by stretching the language of the law.” This Court read down the provisions of Section 5 of TADA and held that the presumption under the said section in relation to possession of weapons was a rebuttable presumption and an accused could always establish his innocence in relation to that statute.
10) According to him, only where the transactions in respect of which an accused is convicted are interrelated inextricably with the transactions which fall under TADA, then Section 12 would enable the prosecution to rely upon the confession of the accused made to a police officer. He further pointed out that it would be a travesty to apply this principle in the present case.
11) By poining out the confession of the appellant (A-117), learned senior counsel contended that even if we believe the statements made, it would simply establish a case of violation of the Arms Act, there is no suggestion of any terrorist act. On the contrary, the act was the resultant of the personal as well as the security need of the family of the appellant. He further contended that judicial notice must be taken of the state of affairs in Bombay during the post Babri Masjid demolition period, particularly, in January, 1993. It is further pointed out that the Legislature did not intend to cover such persons ever in a law dealing with terrorism. The victims of terrorism of a kind (vicious communal riots) cannot and should not be treated at par with perpetrators.
12) He further pointed out that the unchallenged finding of the trial Court in the present case is that the alleged acquisition of 2 illegal weapons by the appellant (A-117) was at a different point of time, much before even the conspiracy in relation to the Bombay blasts was commenced. He further contended that the provocation for the alleged acquisition was not the conspiracy or any act or omission related to the Bombay blasts, but related to an entirely different event, i.e., the riots in January 1993 and the appellant (A-117) allegedly, out of fear for his own life and for the security of his family, acquired those weapons.
Under such circumstances, the question of any connection leave alone the acquisition of weapons or any act or omission relating to the Bombay blasts is conspicuous by its absence.
13) With regard to the evidence in order to establish that the appellant was in conversation with Anees over phone, learned senior counsel contended that the alleged confession of Samir Hingora (A-53) as well as of Hanif Kandawala (A-40) (his partner) to the effect that the appellant (A-117) was in conversation with Anees relates to A-53’s visit to the house of the appellant (A-117) on the night of 15th January whereas the call records relied on were of 16th January, 1993.
14) Learned senior counsel also pointed out that the prosecution has not appealed the findings of the Designated Court and the alleged confession which suggested that the appellant (A-117) was in conversation with Anees is, in fact, unbelievable. One significant reason for the same is that it does not explain as to how Samir could have known that the appellant was in conversation with someone on a landline telephone which was inside his house. This attempt of the prosecution to unnecessarily create prejudice against the appellant (A-117) is baseless and, therefore, merits summary rejection. The judgment of this Court in Sanjay Dutt’s case (supra) dealt with a pure interpretation of Section 5 of TADA. It clearly lays down that the possession of a weapon is not per se a TADA offence. Section 5 mearly raises a presumption that a person, who is in possession of unauthorized arms or ammunitions of the specified variety, would be liable to be punished under TADA. According to him, this Court, in fact, read down the plain language of Section 5 to make it applicable only as a presumptive rule of evidence. This issue is no longer open because it has been conclusively found that the alleged acquisition of the weapon had absolutely nothing to do with any of the alleged terrorist activities of the other accused in the conspiracy. Learned senior counsel for the appellant further contended that the State has not filed an appeal in the matter, hence, stands concluded.
15) In addition to the above arguments, Mr. Surendra Singh, learned senior counsel for A-118 contended that everything was manufactured at the Crime Branch Police Station. He further contended that even if A-118 was having possession of AK 56 rifle, memorandum for the same was not signed by him and Sections 12 and 15 of TADA have no application in his case. He further submitted that his confession is hit by Section 25 of the Evidence Act, 1872 and his alleged statement is compelled one which is hit by Article 21 of the Constitution.
16) Similar to the contentions of Mr. Salve and Mr. Singh, Mr. B.H. Marlapalle, learned senior counsel for A-124 also contended that there was no constructive possession of any weapon and A-124 was not having any knowledge about it. He also contended that he was charged only under the Arms act and IPC which has nothing to do with TADA and the offence against him, if any, ought to have been referred to the normal criminal court and for that reason, the confession recorded under TADA ought to have been erased. He also very much relied on the decisions of this Court in Sanjay Dutt (supra), Prakash Kumar (supra) and Mohd. Amin vs. CBI (2008) 15 SCC 49.
17) Learned ASG met all the contentions and took us through the relevant materials relied on by the prosecution.
Please find the complete Judgment in the attached file...
