S.N. THAPAversusSTATE OF MAHARASHTRA

A                               S.N. THAPA
                                      v.
                         STATE OF MAHARASHTRA

                                  APRIL 5, 1994

B                   (AM. AHMADI AND R.M. SAHA!, J.l.]

          Terrorist and Disntptive Activities Act, 1987-S ecs. 3, 4, 5 and
    20(8)-Bail Application-Bombay Bomb Blast Case-Smuggling of anns, am-
    munition and explosive and transportating to Bombay-Appellant, an Addi-
c   tional Coliector of Customs prosernted-No legal evidence to implicate
    appellant-<Jrder of release on interim bail.

          This appeal is filed against the order passed by iile Disignated Court
    dismissing the bail application filed u/s 20(8) TADA. The appellant, Addi-
    tional Collector of Customs is an acmsed in the Bombay Bomb Blast Case.
D   The basic allegation against the appellant in the chargesheet is that by
    colluding mth the conspirators he permitted the arms and explosives to
    be smuggled into the country. The Designated Court recorded a finding
    that there was no direct evidence to implicate the appellant in the con·
    spiracy, yet it rejected the bail application as according to it there was
E   mate1ial to draw an inference that the appellant rendered assistance to the
    smugglers.

          The appellant urged that the inference drawn by the Designated
    Court that the appellant rendered assistance to the smugglers was based
    on no material on record. The appeal was opposed by the State and it was
F   urged that the chargesheet has been submitted and in case such accused
    were released on bail it would create a very demoralising effect on the
    prosecution.

         Disposing of the matter, this Court

G          HELD : 1.1. The tragedy that took place in March 1993, was one of
    the ghastliest in the history of this country. Further a crime of such
    magnitude was possible due to illegal smuggling of huge quantity of arms
    and explasives. That such smuggling was possible due to connivance of the
    officers of the Customs Department is prima facie established. Yet it
H   cannot be the sole ground to keep every officer of the Customs Department
                                       354
                   THAPA v. STATEOFMAHARASHTRA[SAHAl,J.]                         355

        behind the bars unless there was some material to justify it.                   A
\                                                               [356-G-H; 357-A]
               1.2. No material could be pointed out which could establish that the
        appellant was responsible in the importation and transportation of the
        contraband to Bombay. The basic allegation against the appellant is that
        he by colluding with the conspirators permittted the goods to be smuggled       B
        in large scale cannot be disputed. But the question is whether there is any
        material which could establish even strong suspicion against the appellant
        that he was aware of the nature of conspiracy. [357-F]

               1.3. In the facts and circumstances of the case and on the material,
        as at present, it appears there was no legal evidence to prima facie establish C
        that the appellant had assisted either in the smuggling of the goods or of
        its transportation to Bombay. [358-D-E]

              1.4. However, since the chargesheet has been submitted, the Desig-
        nated Court should reconsider the matter with a view to finding out if there    D
        is any evidence collected in the course of investigation which would show
        the involvement of the appellant with the crime in question. [358-E-F]

              1.5. The appellant is directed to the released on interim bail, subject
        to furnishing of a personal bond. [358-F-G]

              CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
                                                                                        E
        245 of 1994.

              From the Judgment and Order dated 18.9.93 of the Designated Court
        at Pune in Cr!. Misc. A. No. 55 of 1990.
                                                                                        F
             Ram Jathmalani, S.B. Jaisinghani, S.P. Goyal and Ms. Lala Krish-
        namurthy for the Appellant.

             Altaf Ahmed, S.M. Jadhav and A.S. Bhasme for the Respondent.

             The Judgement of the Court was delivered by
                                                                                        G
              R.M. SAHA!, J. This appeal is directed against the order dated 18th
        September 1993 passed by the Designated Court, Pune dismissing the bail
        application filed by the appellant under Section 20(8) of the Terrorist and
        Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
    t
        'TADA').                                                                    H
    356                   SUPREME COURT REPORTS                   (1994] 3 S.C.R.

A          2. The appellant is an Additional Collector of Customs. He is an
    accused against whom a case was registered under various sections of
    Indian Penal Code including Sections 3, 4 and 5 of TADA. The case relates
    to what has come to be known as Bombay Bomb Blast case. It is undisputed
    that between the last week of January and first fortnight of February 1993
    huge quantity of arms ammunition and explosives were smuggled in the
B   country. According to prosecution the large scale smuggling of highly
    sophisticated and lethal weapons would not have been possible but for the
    connivance of the officials of the Customs Department. The Designated
    Court ~fter considering the material on record and after a detailed discus-
    sion recorded a finding that there was no direct evidence to implicate the
c   appellant in the conspiracy. Yet it rejected the bail application as according
    to it there was material to draw an inference that the appellant rendered
    assistance to the smugglers in importing the huge quantity of explosives,
    arms and ammunition and in transporting it to Bombay where the bomb
    eliplosions took place causing deaths of hundreds of persons and struck
    terror in the people.
D
           3. The learned counsel for appellant assailed the finding recorded by
    the Designated Court and placed reliance on various material to
    demonstrate that no offence under any of the sections of the TADA was
    made out against the appellant. The learned counsel urged that the various
E   circumstances which have been relied by the Designated Court were either
    irrelevant or were of no consequence and they taken either individually or
    collectively could not establish any of the offences under Sections 3, 4 and
    5. The learned counsel urged that the inference drawn by the Designated
    Court that the appellant rendered assistance to the smugglers in landing
F   huge quantity of explosives was based on no material .on record. The appeal
    was opposed by the Slate and it was urged that the chargesheet has been
    submitted and the trial was going to commence in April 1994. The learned
    counsel submitted that in case such accused were released on bail it would
    create a very demoralising effect on the prosecution and shake the social
    confidence. On merits the learned coi1nsel argued that the Designated
G   Court did not commit any error in dismissing the application.

          4. The tragedy that took place in March 1993 was one of the
    ghastliest in the history of this country. Further a crime of such magnitude
    was possible due to illegal smuggling of huge quantity of arms and ex-
H   plosives. That such smuggling was possible due to connivance of the
·~·


                  THAPA v. STATEOFMAHARASHTRA[SAHAl,J.]                         357

       officers of the Customs Department is p1ima facie established. Yet it A
       cannot be the sole ground to keep every officer of the Customs Department
       behind the bars unless there was some material to justify it. From the
       confessional statements of the officers of Customs Department it appears
       that for these smuggling activities huge amount of money was paid which
       used to be shared proportionately by the officers in the department. Yet
      the question is if there is any evidence or any material on record to
                                                                                     B
      establish that the appellant was associated or was responsible for smuggling
      of the arms. The case of the prosecution was that the appellant helped the
      smugglers in landing of the arms, ammunition and explosives on the sea
      coast and in transporting the same to Bombay where later a series of bomb
      blasts took place. Even in the chargesheet which has now been submitted          c
      and a copy of which has been filed it is stated that the investigation
      disclosed that the appellant colluded with other conspirators in illegal act
      of intentionally facilitating the landing and transportation of the con-
      trabands comprising AK- 56 rifles, ammunitions, 9mm pistol and
      detonators hand granades, explosives etc. It is also alleged that the appel- D
      !ant despite information from his superior officers did not maintain a strict
      vigil and knowingly and intentionally misdirected customs surveillance staff
      in different directions with a view to facilitating safe landing of the con-
      traband. In this manner by defaulting in the normal performance of his
      duties it is alleged that he knowingly and intentionally facilitated others in
      achieving the objective of criminal conspiracy.                                E

            5. No material could be pointed out by the learned counsel for the
      State which could establish that the appellant was responsible in the
      importation and transportation of the contraband to Bombay. The basic
      allegation against the appellant is that he by colluding with the conspirators
                                                                                       F
      permitted the arms and explosives to be smuggled in the country. That the
      goods were smuggled in large scale cannot be disputed. But the question
      is whether there is any inaterial which could establish even strong suspicion
      against the appellant that he was aware of the nature of conspiracy.

            6. The first circumstance relied by the Designated Court to draw the G
      inference against the appellant was a confessional statement made by an
      Inspector of Customs Shri P. Natarajan that he had learnt that the appel-
      lant was aware of every landing and that at every time of landing the
      appellant used to get substantial amount. He further stated that he learnt
      that a meeting had taken place between the smugglers and the appellant H
    358                   SUPREME COURT REPORTS                   [1994] 3 S.C.R.

A   in a hotel. The other circumstance relied was the statement made by one
    of the Assistant Collectors of Customs that in the month of January the
    appellant had circulated an order to the effect that unless and until an alert
    was sounded patrolling and checking of the vehicles should not be under-
    taken. Another circumstance relied on against the appellant was that when
B   on one occasion he was informed that smuggled goods may land he
    stationed the checking party in such a manner that he kept one route
    deliberately open for the smugglers to escape. Each of the circumstances,
    according to learned counsel for appellant, was irrelevant and in any case
    did not establish any connection between the appellant and the crime in
    question. The learned counsel urged that the confessional statement of the
c   Customs Inspector could not be read in evidence as it was only based on
    hearsay. Besides he was a person against whom the appellant had taken
    steps and got him suspended and transferred. The learned counsel sub-
    mitted that if the confessional statement is ignored then the other cir-
    cumstances which have been relied on are not only too remote to create
D   any suspicion, what to say of strong suspicion, but were irrelevant and liable
    to be ignored. We do not propose to make any comment on the evidence
    on which reliance has been placed by the Designated Court. But in the
    facts and circumstances of the case and on the material, as at present, it
    appears there was no legal evidence to prima facie establish that the
E   appellant had assisted either in the smuggling of the goods or of its
    transportation to Bombay.

           7. However, since the charge-sheet has been submitted, we would
    like the Designated Court to reconsider the matter with a view to finding
    out if there is any evidence collected in the course of investigation which
F   would show the involvement of the appellant with the crime in question.

         8. In the result, this appeal is allowed, the order of the Designated
    Court is set aside and the appellant is directed to be released on interim
    bail, subejct to furnishing of a personal bond of Rs. 1,00,000 before the
G   Designated Court and two sureties of Rs. 50,000 each to the satisfaction of
    the Designated Court. The matter is remitted to the Designated Court for
    reconsideration of the bail application in the light of fresh material that
    might have been collected against the appellant during investigation.

H         Till the grant of final bail the appellant shall not leave Bombay. The
               TIIAPA v. STATE OFMAHARASHTRA[SAHAl,J.]                      359

    passport etc., if any, shall stand. impounded and the appellant shall not be   A
'   permitted to leave the country. It shall be open to the Designated Court if
    it comes to conclusion that the appellant is entitled to be released on bail
    to impose such conditions as it considers necessary. If the Designated
    Court refuses bail and rejects the application the appellant will surrender
    to his bail.
                                                                                   B
    A.G.                                                   Appeal disposed of.