Supreme Court of India
STATE OF MAHARASHTRA ETC.versusSOM NATH THAPA ETC.
- Citation
- 1996 INSC 507
- Decided
- 12 April 1996
- Disposal
- Dismissed
- Bench
- A M AHMADI
Holding
A conspiracy requires knowledge of an illegal act or illegal means, which may be inferred when the instrument has no lawful use, and at the charge‑framing stage only a prima facie case is needed; TADA’s Section 1(4) preserves ongoing proceedings after the Act’s expiry.
Summary
The Supreme Court examined the 1993 Bombay bomb blasts case, where 145 persons were charged under the IPC and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The Court clarified the law on criminal conspiracy, holding that knowledge of an illegal use can be inferred when the goods (e.g., RDX) have no legitimate purpose, and that at the charge‑framing stage only a prima facie case is required. It also ruled that Section 1(4) of TADA keeps investigations and trials alive even after the Act’s expiry. Applying these principles, the Court discharged Abu Asim Azmi and Amjad Aziz Meherbux for lack of sufficient material, but upheld the framing of charges against Raju Jain and Somnath Thapa, dismissing the State’s request to cancel Thapa’s bail.
Issues considered
- What are the essential ingredients of criminal conspiracy under IPC s.120A?
- When may a charge be framed under the Code of Criminal Procedure?
- What is the effect of the lapse of TADA, particularly Section 1(4), on pending investigations and trials?
- Whether the specific allegations against each appellant satisfy the requirements of abetment and conspiracy under TADA.
Legislation cited
- Arms Act, 1959s. 25(1A), s. 25(1B)
- Code of Criminal Procedure, 1973s. 227, s. 228, s. 239, s. 245
- Explosives Act, 1884s. 9-B(1)(a), s. 9-B(1)(b), s. 9-B(1)(c)
- Explosive Substances Act, 1908s. 4
- Indian Penal Code, 1860s. 109, s. 120A, s. 120B
- Prevention of Damage to Public Property Act, 1984s. 4
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 1(4), s. 20(8), s. 21(2), s. 2(1)(a)(iii), s. 3(2)(i), s. 3(2)(ii), s. 3(3), s. 3(4), s. 5, s. 6
Subjects
criminal conspiracyabetmentTADAcharge framingknowledge and intentRDXarms smugglingbomb blastsbail cancellation
Judgment
v
STATE OF MAHARASHTRA ETC. A
v.
SOM NATH THAPA ETC.
APR TL 12, 1996
IA.M. AHMADI, CJ, B.L. HANSARIA AND S.C. SEN, JJ.]
B
Indian Penal Code 1860, S. 120 A-<::Jiminul conspiracy~Bombay
blasts in which anns and an1111unition and RDX e.lplosives used--(J1arge of
con~piracy against nzanber of accused--U!Jiether prosecution 'I-Vas required to
show that each accused had to have knowledge of commission of illegal act C
by co-con.\]Jirator in addition to intent to ftather the illegal act- Held intent
1
could be injen·ed from knowledge when no legitimate use of goods in question
exists; Held jiuthe1; since RDX cannot be put lo any legitin1ate use prosecution
need not show that a ]JG1ticular unlawful use 1vas intended .
Code of Oiminal Procedure 1973, Ss. 227, 228, 239 and 245-Framing D
of charge-Held, at the stage of framing of charge court cannot go into
probative value of matelials.
Tm01ist and Disruptive Activities (Prevention) Act 1987-S.1(4)-Ef-
fect of lapse of Act on jJending investigations--Held, pending investigations E
have to be continued even after expily of the Act.
Terrorist and Disruptive Activitie;· (P,.evention) Act
1987,-S.2(1)(a)(iii) r/w S.3(3)-Appellant AAA charged with booking air
tickets for accused to facilitate their weapon training in Pakistan out his oivn
funds thus abetting te11nrist act-Held, on exan1inati n of records, there was F
no matCJial to frame individual chwge against appellant~ode of Oiminal
Procedure, Ss.227, 228.
Te1ro1ist and Disruptive Activities (Prevention) Act 1987-S.2( 1)(a)(iii)
r/w s.3(3)-Appellant AAM asking accused to remove jeep with anns and G
anununition in his co1npound-Held, appellant neither in conscious posses-
sion of anns not abetted accused in conunitting te1To1ist act; entitled to
dischwge-Code of Climinal Procedure 1973, Ss. 227, 228.
Ten'Olist and Disntptive Activities (Prevention) Act 1987~S.2( J)(a)(iii)
r/w S.3(3)-Appellant RJ having knowledge of transp01tation of anns and H
189
190 SUPREME COVRT REPORTS IJ'!96I SUPP. l S.C.R.
A RDX used in bomb blast-Appellant providing financial assistance and jeeps
having cavities to conceal anns·-Heh~ there intention to use it for illegal
p1u7Jose has to be in1puted; appellant Tightly charged rvith abet111ent-JncUan
Penal Code 186(}-S. /09.
Terrmist and Dis111ptive Activities (Prevention) Act 1987-S.(2)(a)(iii)
B r/w s.3(3)-Appel!ant SNT an Additional Collector of Customs (Preventive)
charged with facilitating movement of arms, RDX-Appellant granted
bail-Heir\ charges ni;htly framed but case for cancellation of bail not made
our-Tenmist and Dis1uptive Activities (Prevention) Act 1987, s.20(8)
c centresOnofMarch 12, 1993 a series of bomb blasts took place at important
com1nercial activity in Bombay leaving move than 250 persons
dead, 730 injured and property worth about Rs. 27 crores destroyed. The
investigation by the CBI led to chargesheet being filed against 145 persons
under various provisions of the IPC and the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA). The designated court framed
D charges against 127 persons including the appellants AAA, AAM, RJ and
SNT. The appellants assailed in this Court, the order of the Designated
Court framing charges against each of them for offence; punishable under
TADA.
AA>\ was charged with having booked air tickets for the other
E
accused for their travel to Pakistan for weapon training from his own
funds thus abetting a terrorist act. According to AAA, on account of
cancellation of a ticket on March 11, 1993 an amount of Rs. 9,939 had been
credited in the account of his firm in the books of M/s. Hans Air Service.
Relying on this, the prosecution contended that money for the journey of
F the terrorists had been paid.
As regards AAM, the charge was that he had permitted a co-accused
to park jeeps laden with arms and RDX explosives in his premises and
was therefore in conscious possession of the same. AAM contended that
G he had objected to the co-accused parking his vehicle and asked him to
remove it immediately. Therefore he had not aided or abetted the co-ac-
cused.
The charge against RJ was that be had provided financial assistance
and jeeps to the accused which had cavities to conceal ammunition and
H RDX. The jeeps used were recovered at his instance. It was contended for
STATE v. S.N. THAPA 191
RJ even if he had knowledge about transportation of arms, he did n"ot play A
a part in the conspiracy for lack of criminal intent to use them for an
illegal purpose.
SNT, au additional Collector of Customs (Preventive) was charged
with allowing the smuggling of arms and explosives without doing
nakabaudi at the prearranged point but at some distance therefrom, thus B
leaving an escape route for the terrorists to carry the arms to Bombay. It
was contended for SNT that the motive was sought to be established on
the basis of a gist of a tape recorded conversation carried by a co-accused
which was itself inaudible. Moreover, the statements of two inspectors used
in evidence were contradictory and therefore no case was made ollt. C
The State of Maharashtra in its appeal in this Court sought cancel-
lation of bail granted by the designated court to SNT.
Allowing the appeals of AAA and AAM and dismissing the remaining
appeals, this Court D
HELD : 1.1. To establish a charge of conspiracy know/edge about
indulgence in either an illegal act or .a legal act by illegal means was
necessary. In some cases, littent of unlawful use being made of the goods or
services in question may be inferred from the knowledge itself. This apart, E
the prosecution had not to establish that a particular unlawful use was
intended, so long as the goods or service in question could not be put to any
lawful use. Finally, when the ultimate offence consisted of a chain of actions,
it would not be necessary for the prosecution to establish, to bring home
the charge of conspiracy, that each of the conspirators had the knowledge
of what the collaborator would do, so long as it was known that the col- F
laborator would put the goods or service to an unlawful use. [201-F-H]
R.v. Hawkes/ey, (1959) Criminal Law Report 210, People v. Lawia,
[251] California Appeal 2d 471, Natwarlal Shankarlal Mody v. State of
Bombay, (1961) Bombay Law Report 661, United States v. Feola, 420 US G
671, Ajay Aggarwal v. Union of India, [1993] 3 SCC 609, United States v.
Falcone, 311US205, Direct Sales Co. v. United States, 319 US 703, Yash Pal
Mittal v. State of Punjab, (1977] 4 SCC 540 - referred to.
2. At the stage of framing of charge, probative value of the materials
on record cannot be gone into; the materials brought on record by the H
192 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R
A prosecution has to be accepted as true at that stage. [205-B]
R.S. Nayak v. A.R. Antulay, [1986) 2 SCC 716, State of Kumataka v.
L. Muniswamy, [1977) 3 SCR 113 and State of West Bengal v. Mohd. Khalid,
[1995) 1 sec 684 - referred to.
B Black's Law Dictionary; Shorter Olford Engli'h Dictionmy; Stroud's
Legal Dictionwy; Law Lexicon by P. Ramanath Aiyer - referred to.
3.l. The contention that with the lapse of the Act, s.1(4) which saves
investigation instituted before the Act had expired had itself lapsed and
C that therefore the proceedings under TADA cannot be continued was
without force. [205-C-D)
3.2. In view of section 1(4) of the Act, the framers of the Act had
desired that even after its expiry, the proceeding initiated under the Act
should not come to an end without the final conclusion and determination,
D which had, therefore, to be continued in spite of the expiry of the Act.
[205-E-F]
Mohd. Iqbal v. State of Maharashtra, JT (1996) 1 SC 114 - followed.
4. There being no material to frame individual charge under s.3(3)
E of TADA, the general charge qua appellant AAA had also to fail. The only
incriminating material, namely, crediting the amount of Rs. 9,939 in the
account of the appellant AAA's firm in the books of M/s. Hans Air Services,
was a weak circumstance to say that the appellant might have abetted the
offences in question. [210-D; BJ
F
State of Kamataka v. L. Mwziswamy, [1977) 3 SCR 113 followed.
5. AM-I should be discharged. His conduct was clearly indicative of
the fact that be was neither in conscious possession of arms nor had he
aided in any way in the terrorist act. After he came to know about the
G parking of vehicles loaded with arms, he immediately asked that the jeep
be removed from his compound. [212-C-F]
Sanjay Dutt v. State, [1994) 5 SCC 410, State of Maharashtra v.Abdul
Hamid Haji Mohammed, [1994) 2 SCC 664, State of West Bengal v. Mohd.
H Khalid, [1995) 1 SCC 684 referred to.
STATE v. S.N: THAPA 193
6.1. The alleged fact that the jeeps provided by the appellant RJ had A
cavities to conceal arms, ammunition and RDX, and that the jeeps were
recovered at the instance of the appellant in which were found traces of
RDX would p1inza facie show that the appellant had aided th< terrorist act
in question, even as per the definition of the word 11 abet 11 given in s.109 of
the Penal Code. The alleged financial assistance provided would attract
B
the enlarged definition of abetment given in section 2(1) (a)(iii) of the Act.
[215-E-F)
6.2. Any reasonable person knowing about transportation of·
materials like RDX had to be imputed the intent of its use for illegal
purpose - there being no material to show that RDX could be put to any
legal use. The prosecution had no obligation under the law to establish that c
the appellant RJ had known that the RDX, and for that matter other
objectionable materials would be used for the purpose of blasts which had
taken place in Bombay. [215-D-E]
7.1. Charges were rightly framed against SNT. The law did not permit D
finding ont at this stage as to which of the two versions given by the
Inspectors was correct. At the stage of framing of charge probative value
of the statement could not be gone into. [223-D; 222-C-D)
7.2. Even if benefit was given to SNT with regard to the tape recorded
conversation relied on, that would tend to demolish the case·ofthe prosecu- E
tion mainly relatable to motive which was not required to be established to
bring home an accusation. [222-H; 223-A]
73. No case for cancellation of bail granted to SNT has been made
out despite the view that charges were rightly framed against him. (223-G)
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.480 of 1996 Etc. Etc.
From the Judgment an<l Order dated 7.2.95 of the Designated Court
for Greater Bombay in Bail Application No. 25/94 in B.B.C. No. 1of1993.
G
K.T.S. Tulsi, Additional Solicitor General, Ram .Tethmalani, Rajinder
Singh, Adik Shirodkar, T.C. Sharma, P. Parmeswaran, P.K Dey, Ms. Rani
Jethmalani, Rajiv Narula, R.N. Karanjawala, Bhasker Pradhan, Manik
Karanjawala, (H.H. Panda, Aman Vachher) for K.L. Mehta & Co.,
Rajendra Shirodkar, A.M. Khanwilkar, P.H. Parekh, Ms. Sunita Sharma
for the appearing parties. H
194 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A The Judgment of the Court was delivered by
HANSARIA, J. Bombay of yesterday, Mumbai of today : financial
capital of the nation. It woke as usual on 12th March, 1993. People started
for their places of work not knowing what was in their store. The terrorists
and/or dis-uptionists, bent on breaking the backbone of the nation (for
B reasons which need not be gone into) had, however, hatched a well laid-out
conspiracy to cripple the country by striking at its financial nerve. As
Bombay set down to work, blasting of bombs, almost simultaneously, took
place at important centres of commercial activities like Stock Exchange,
Air India, Zavcri Bazar, Katha Bazar and many luxurious hotels. A shocked
c Bombay and a stunned nation first tried to provide succour to the victims
as much as possible and then wanted to know the magnitude of the loss of
life and property. It surpassed all imagination, as it was ultimately found
that the blasts left more than 250 persons dead, 730 injured and property
worth about Rs. 27 crores destroyed. By all counts, it was thus a great
tragedy; and revolting also, as it was men-made.
D
2. All right thinking persons and wellwishers of the nation started
asking; Why it happened ? How could it happen ? We are not concerned
in these cases with why, but with how. The gigantic task led Bombay police
despite its capability, to seek assistance of the CBI. An arduous and
E painstaking investigation by a team of dedicated officials showed that the
aforesaid bomb blasts were a result of deep rooted conspiracy - concerted
action of many, guided either by greed or vengeance. The finale of inves-
tigation consisted in charge-sheeting 145 persons (for whom 38 were shown
as absconders) under various sections of the Penal Code and the Terrorists
And Disruptive Activities (Prevention) Act, 1987 (TADA), hereinafter the
F Act also. The Designated Court constituted under Section 9 of the Act
came to be seized of the matter and by its impugned order of 10.9.1995 it
has framed charges against 127 persons, discharging at the same time 26.
One died and two hccame approvers. (The total thus comes to 140).
G 3. Of the charged accused, four : (1) Abu Asim Azmi; (2) Amjad
Aziz Meharbak.,h; (3) Raju alias Raju Code Jain; and (4) Sonmath Thapa
have approached this Court having felt aggrieved at their having not been
discharged. The State of Maharashtra has approached the Court seeking
cancellation of bail granted to appellant Thapa.
H 4. We were fortunate to have leading criminal lawyers of the country
f
•
STATE v. S.N. THAPA [HANSARIA, J.] 195
to assist us in the matter in as much as Shri Ram J ethmalani appeared for A
Raju and Moolchand, Shri Rajindcr Singh for Abu Azim Azmi, Shri R.K.
Jain for Amzad Ali and Shri Shirodkar for appellant Th apa. The State was
represented by Addi. Solicitor General, Shri KTS Tulsi. Lengthy arguments
were advanced by the learned counsel to sustain the stands taken by them.
We put on record our appreciation for the able assistance rendered by all.
B
5. The appeals call for examination of three questions of law. These
are :
(a) What are the ingredients of "criminal conspiracy", as defined
in Section 120-A of the Penal Code ? C
(b) When can charge be framed ?
(c) What is the effect of repeal of TADA?
After understanding and explaining the legal position, we would D
examine the cases of individual appellants and would see whether any of
them deserves to be discharged. We would then express our view whether
bail of Thapa has to be cancelled and whether Moolchand has to be
released on bail.
Essential ingredients of crinzinal conspiracy : E
7. It would be apposite to note at the threshold that sections 120-A
and 120-B, which are the two sections in Chapter V - A of the Code, came
to be introduced by Criminal Law Amendment Act of 1913. The Statement
of Objects and Reasons stated that a need was felt for the same to make
F
conspiracy a substantive offence. In doing so the common law of England
was borne in mind.
8. Section 120-A defines criminal conspiracy as below :
"120-A. Definition of criminal conspiracy : When two or more. G
persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy : H
196 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
A Provided that no agreement except an agreement to commit an
offence shall an1ount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agree1nent in pursuance thereof.
Explanation : It is immaterial whether the illegal act is the ultimate
B object of such agreement, or is merely incidental to that object".
9. This definition shows that conspiracy consists in either doing an
illegal act or a legal act by illegal means. Shri Tulsi emphasised that we
should bear in mind the illegality of means as well. Group action being
c apparently involved, it \Vas urged that division of performances in the chain
of actions as happens in smuggling of narcotics should also be taken note
of by us. The Addi. Solicitor General was at pains in contending that
protection of the society from the dangers of concerted criminal activity
may not be lost sight of by us.
D 10. Shri Ram .I ethmalani, who addressed us principally on the ques-
tions of law involved, filed a con1pilation of relevant decisions for our
benefits, wherein the essential ingredients of criminal conspiracy have been
spelt out. The decisions mainly relied by the learned counsel are R. v.
Howkesley, (1959) Criminal Law Report 210 and People v. Lauria, 251
E California Appeal 2d 471. Some assistance is derived from a judgment of
this Court in Natwarlal Shankarlal Mody v. State of Bombay, {1961) Bombay
Law Report 661. The only other foreign decision we would be required to
note is United States v. Feola, 420 US 671, referred to on behalf of the
State. We would finally see what was held by a two Judge Bench of this
p Court in Ajay Aggarwal v. Union of India, [1993] 3 SCC 609 strongly relied
on by Shri Tulsi.
11. The thrust of Shri Ram Jethmalani's argument is that to find a
person guilty of conspiracy there has to be kn.ow/edge of either commission
of any illegal act by a co-conspirator or taking recourse to illegal means by
G the co-conspirator, along with the intent to further the illegal act or
facilitate the illegal means. Though at one stage the learned Addi. Solicitor
General sought to contend that knowledge by itself would be enough, he,
on deeper thought, accepted that this would not be. But then, according
to him, at times intent may be inferred from knowledge, specially when no
H legitimate use of goods or services in question exists. To sustain this
STATE v. S.N. THAPA[l-!ANSARIA,.T.] 197
submission, he also relied on Laruia's case. He has added a rider as \Vell. A
The same is that so far as knowledge is concerned, the prosecution, in a
case of present nature cannot be called upon to establish that the con-
spirator had knowledge that the goods in question would be used for
blasting of bombs at Bombay. This follows, according to the Addi. Solicitor,
from the decision of the United State Surireme Court in Feola.
B
12. Let us first see what was held in Hawkesley. The facts of that case
are that the accused was a partner with Z in a small taxi business. A and
B, two young men with some previous criminal record, who were fairly well
known to Z but less well known to the prisoner, H, persuaded H to drive
them on credit from the taxi office in the centre of the city at about 12.25 c
a.m. a distance of about five miles to the outskirts of the city. H did not
know that either A or B had criminal record>. On the journey A and B
informed H that the purpose of the journey was to break into a golf club.
H dropped A and B near the golf club and a police officer overheard one
of them say, "We will want you back in about an hour". H never did return D
to the golf club but returced to the city where he drove some other fares
which had been previously booked after which he went home taking his
taxi with him.
A and B ran away from the golf club on being disturbed by the "police
and were later arrested together. A and B were charged with being in E
possession of house-breaking implements by night and A, B and H were
charged with conspiracy to break and enter the club. A and B pleaded
"guilty'' to both counts and H pleaded "not guilty" to the count of conspiracy
against him. When A and B were arrested a torch which was usually kept
in the taxi was found in their possession. H made a statement to the police F
in writing in which he said that on the journey he learnt that A and B were
"Going to do the club".
13. The evidence as to how a torch came into possession of A and B
was conflicting. There was no evidence that the accused knew, until the G
journey in the taxi had begun, that A and B intended to commit a criminal
offence or that he had any reason to suspect that they intended to do so.
It was, therefore, held that there was no evidence as to conspiracy because
of lack of evidence that the accused and A and B were acting in concert
or had agreed t1gether to commit a criminal offence. It is brought to our
notice that this Court in Natwar Lal's case (supra) had also held that H
198 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
A knowledge of conspiracy is necessary as appears from what was staled at
page 667 of the Report. Shri J cthmalani, therefore, submits that mere
knowledge that somebody would commit an offence would not be sufficient
to establish a case of criminal conspiracy, unless there be evidence to show
that all had acted in concert or had agreed together to commit the offence
in question.
B
14. The discussion in Lawia is more illuminating and its importance
lies in the fact that learned counsel of both the sides have sought to place
reliance on this decision. Fleming, J., who decided the case, was confronted
with two leading cases of the United States Supreme Court pointing in
c opposite directions - one was that of United States v. Falcone, 311 US 205
wherein sellers of large quantities of sugaryeast and canes were absolved
from participation in a conspiracy among distillers who bought from them.
In Direct Sales Co. v. United States, 319 US 703, however, a wholesaler of
drugs was convicted of conspiracy to vacate the federal narcotic laws by
selling drugs in quantity to a co-accused physician who was supplying them
D to addicts. The distinction between these two cases appeared primarily
based on the proposition that distributors of such dangerous products as
drugs are required to exercise greater discrimination in conduct of their
business than are distributors of innocuous substances like sugar and yeast.
Fleming, J., therefore, observed that in Falcone the sel;er's knowledge of
E the illegal use of the goods was insufficient by itself to make the seller privy
to a conspiracy with the distillers who bought from them, whereas in Direct
Sales, the conviction was affirmed on showing that the drug wholesaler had
actively promoted the sale of the drug (morphine sulphate) in quantity and
had sold the same to a physician who practised in a small town - the
quantity being 300 times more than the normal requirement of the drug.
F
15. The following quotations in Lauria from the decision in Direct
Sales is very pertinent :
"All articles of commerce may be put to illegal ends, ..... But
G all do not have inherently the same susceptibility to harmful and
illegal use ...... this difference is important for two purposes. One
is for making certain that the seller knows the buyer's intended
illegal use. The other is to show that by the sale he intends to
further, promote and cooperate in it. This intent, when given effect
H by overt act, is the gist of conspiracy. While it is not identical with
STATE v_ s_N_ THAl'A [I-IANSAIUA, J_] 199
mere knowledge that another proposes unlawful action, it is not A
unrelated to such knowledge __ ,, ___ The step from knowledge to
intent and agreement may be taken. There is n1ofc than suspicion,
more than knowledge, acquiCscencc, ccrcle.ssncss, indifference,
lack of conern. There is informed and interested co-operation,
stimulation, instigation''.
B
16. The learned .T udge, after examining the precedent in the field,
hereafter held that sometimes, but not always, the criminal intent may be
inferred from the knowledge of the accused of the unlawful use made of
the goods in question. He gave two illustrations to bring home the point,
one of which is that the intent may be inferred from knowledge, when no c
legitimate use for the goods or services exists. Being of this view, Fleming,
J. held that the respondent before him (Lauria) had knowledge of the
criminal activities of the prostitutes, and the same was sufficient to charge
him with that fact, even though what Lauria had manifestly done was
allowing them, who were actively plying their trade, to use his telephone. D
• The prosecution in that case had attempted to establish conspiracy by
showing that Lauria was well aware that his co-defendants were prostitutes,
who had received business calls from customers through his telephone
answering service, despite which Lauria continued to furnish them with
such service. This action of Lauria was regarded as sufficient to hold that
he had conspired with the prostitute to further their criminal actifity. E
17. The Additional Solicitor General has, according to us, stolen a
march over the counsel for the accused because of what was stated in
Lauria's case, as he is undoubtedly right in submitting that ROX, or for
that matter bombs, cannot be put to any legitimate use but only to ii- F
legitimate use; and it is RDX or bomb which was either handled or allowed
to slip by the accused before us. So, this act by itself would establish the
intent to use the goods for illegitimate purpose.
18. Another decision to come to the assistance of the prosecution is
Feola. This decision of the United States Supreme Court is important G
because the issue presented in that case was whether knowledge that the
intended victim was a federal officer essential to establish crime of con-
spiracy under the relevant penal provision which made an assault upon a
federal officer while engaged in the performance of his official duties, an
offence. Justice Blackmun, who delivered the opinion for the majority, held H
200 SUPREME COURT REPORTS [1996] SUPP. I S.C.R.
A that in so far the substantial offence is concerned, to answer the question
of individual guih or innocence, awareness of the official identity of the
assault victim is irrelevant. It \Vas observed that the S(:.lffiC has to obtain \Vith
respect lo conspiracy.
19. What had happened in Feola was that he and his confederates
B had arranged for sale of heroin to buyers, who turned out to be undercover
agents for the Bureau of Narcotic and Dangerous Drugs. The planning of
the group was to palm off on the purchasers, fur a substantial sum, a form
of sugar in place of heroin and, should that ruse fail. simply to surprise
their unwitting buyers and relieve them of the cash they had brought along
c for payment. The plan failed when one agent on a suspicion being aroused,
dre\v his revolver in time to counter an assault upon another agent from
the rear. So, instead of enjoying the rich benefits of a successful swindle,
Feola and his associates found themselves charged, to their undoubted
surprise, \Vith conspiring to assault and assaulting federal officers.
D 20. The plea taken by Feola was that he had no knowledge of the
victim's official identity and as such he could not have been guilty of
conspiracy charge. The Court was, therefore, first required to find out
whether for the substantive offence of charge envisaged by the punishing
section, awareness of the official identity of the victim was relevant; and
E the majority answered the question in negative, because the offence con-
sisted in assaulting a federal officer on duty; and undoubtedly there was an
assault and the victim was a federal officer on duty. The further step which
the majority took, and with respect rightly, was that the same logic would
apply with respect to conspiracy offence.
F
21. The Additional Solicitor General has thus a point when he
contended that to establish the charge of conspiracy in the present case, it
would not be necessary to establish that the accused knew that the ROX
and/or bomb was/were meant to be used for bomb blast at Bombay, so lung
as they knew that the material would be used for bomb blast in any part
G of the country.
22. As in the present case the bomb blast was a result of chain of
actions, it is contended on behalf of the prosecution, on the strength of this
Court's decision in Yash Pal Mittal v. State of Punjab, (1977] 4 SCC 540,
H which was noted in para 9 of Ajay Aggarwal's case, that of such a situation
•
STATE v. S.N. THAPA[HANSARIA.J.] 201
there may be division of performances by plurality of means sometimes A
even unknown to one another; and in achieving the goal several offences
may be committed by the conspirators even unknown to the others. All that
is relevant is that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the conspiracy, even though
there may be sometimes misfire or over-shooting by some of the con- B
spirators.
23. Our attention is pointedly invited by Shri Tulsi to what was stated
in para 24 of Ajay Agganva/'s case wherein Ramaswamy, J. stated that the
law has developed several or different models or technique to broach
the scope of conspiracy. One such model is that of a chain, where each
c
party performs even without knowledge of the other, a role that aids
succeeding parties in accomplishing the criminal objectives of the con-
spiracy. The illustration given was what is done in the process of
procuring and distributing narcotics or an illegal foreign drug for sale
in different parts of the globe. In such a case, smugglers, middlemen, D
retailers are privies to a single conspiracy to smuggle and distribute
narcotics. The smugglers know that the middlemen must sell to retailers;
and the retailers know that the middlemen must buy from importers.
Thus the conspirators at one end at the chain know that the unlawful
business would not, and could not, stop with their buyers, and those at
E
the other end know that it had not begun with their settlers. The action
of each has to be considered as a spoke in the hub - there being a rim to
bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to conclude
that to establish a charge of conspiracy knowledge about indulgence in F
either an illegal act or a legal act by illegal means is necessary. In some
cases, intent of unlaWful use being made of the goods or services in question
may be inferred from the knowledge itself. This apart, the prosecution has
not to establish that a particular unlawful use was intended, so long as the
goods or service in question could not be put to any lawful nse. Finally, G
when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had the knowledge of what the
collaborator would do, so long as it is known that the collaborator would
put the goods or service to an nnlawful use. H
202 SUPREME COURT REPORTS {19%\ SUPP. 1 S.C.R.
A H1zen can ch111ge be framed '!
25. This legal question is not as knotty as the first one. This is for the
reason that there are clinching decisions of this Court on this aspect of the
n1atter.
B 26. Shri Rani Jeth1nalani hil.s urgi..:<l that despite some variation in the
language of three pairs of sections, which deal with the question of framing
of charge or discharge, being relatable to either a sessions trial or trial of
\Varrant case or sun1n1ons case, ultimately converge to a single conclusion,
namely that a p1ima facie case must be made out before charge can be
C framed. This is what was stated by a two-Judge Bench in R.S. Naik v. A.
Antulay, [1986\ 2 SCC 716.
27. Let us note the three pairs of sections Shri Jcthmalani has in
mind. These are sections 227 and 228 in so far as sessions trial is con-
cerned; sections 239 and 240 relatable to trial of warrant cases; and sections
D 245(1) and (2) qua trial of summons case. They read as below :
"Section 227 : Discharge - If, upon consideration of the record of
the case and the documents submitted therein, and after hearing
the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for proceed-
E ing against the accused, he shall discharge the accused and record
his reasons for so doing.
Section 228 : Framing of Charge - (1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an offence
F
which-
(a) is not exclusively triable by the Court of Session, he may
frame a charge against the accused and, by order, transfer the case
for trial to the Chief Judicial Magistrate, and thereupon the Chief
G Judicial Magistrate shall try the offence in accordance ·mth the
procedure for trial of warrant-cases instituted on a police report;
(b) is exclusively trial by the Court, he shall frame in writing a
charge against the accused.
H (2) Where the Judge frames any charge under clause (b) of
STATE v. S.N. THAPA[HANSARIA,J.] 203
I
sub-section (1), the charge shall be read and explained to the A
accused and the accused shall be asked whether lie pleads guilty
of the offence ch.arged or claims to be tried.
(Emphasis supplied)
s.ecti~n 239 : When accused shall be discharged) .If'. up.on con- B
s;denng the police report and the document sent with 1t under
Section 173 and making such examination, if any, of the accused
as the Magistrate thinks necessary and after giving the prosecution
and the accused an opportunity of being heard, the Magistrate
considers the charge against the accused to be groundless, he shall C
discharge the accused, and record his reasons for so doing.
Section 240 : Framing of charge - (1) if, upon such consideration,
examination, if any, and hearing the Magistrate is of opinion that
there is ground for presuming that the accused has committed an D
offence triable under this Chapter, which such Magistrate is com-
petent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the
accused.
(2) The charge shall then be read and cxplamed to the accused, E
and he shall be asked whether he pleads guilty of the offence
charged or claims to be tried.
Section 245 : When accused shall be discharged - (1) If, upon
taking all the evidence referred to in Section 244, the Magistrate F
considers, for reasons to be recorded, that no case against the
accused has been made out which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate
from discharging the accused at any previous stage of the case if, G
for reasons to be recorded by such Magistrate, he considers the
charge to be groundless."
28. Before adverting to what was stated inAntulay's case, let the view
expressed in State ofKamataka v. L. Muniswami, [1977] 3 SCR 113 be H
204 SUPREME COURT REPORTS [1996] SUPIP. 1 S.C.R.
A noted. Therein, Chandrachud, .I. (as he then· was) speaking for a three
Judge Bench stated at page 119 that at the stage of framing charge the
Court has to apply its mind to the question whether or not there is any
ground for presuming the commission of the offence by the accused. As
framing of charge affects a person's liberty substantially, need for proper
B consideration of material warranting such order was emphasised.
29. What was stated in this regard in Stree Atyachar Virodhi
Pmishad's case, which was quoted with approval in paragraph 78 of State
of West Bengal v. Mohd. Khalid, [1995] 1 SCC 684 is that what the Court
C has to see, while considering the question of framing the charge, is whether
the material brought on record would reasonably connect the accused with
the crime. No more is required to be inquired into.
30. In Antulay's case, Bhagwati, 0., opined, aftec noting the dif-
D ference in the language of the three pairs of section, that despite the
difference there is no scope for doubt that at the stage at which the Court
is required to consider the question of framing of charge, the test of "prima
facie" case has to be applied. According to Shri Jethmalani, a p;ima facie
case can be said to have been made out when the evidence, unless rebutted,
E would make the accused liable to conviction. In our view, better and clearer
statement of law would be that if there is ground for presuming that the
accused has committed the offence, a court can justifiably say that a prima
facie case against him exists, and so, frame charge against him for commit-
ting that offence".
F
31. Let us note the meaning of the word "presume". In Black's Law
Dictionary it has been defined to mean "to believe or accept upon probable
evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has
been mentioned that in law "presume" means "to take as proved until
G evidence to the contrary is forthcoming", Stroud's Legal Dictionary has
quoted .in this context a certain judgment according to which "A presump-
tion is a probable consequence drawn from facts (either certain, or proved
by direct testimony) as to the truth of a fact alleged." (Emphasis supplied).
In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at
H page 1007 of 1987 edition.
STATE v. S.N. THAPA [HANSAfUA,J.J 205
32. The aforesaid shows that if on the basis of materials on record, A
a court could come to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists. To put it
differently, if the Court were to think that the accused might have com-
mitted the offence it can frame the charge, though for conviction the
conclusion is required lo be that the accused has committed the offence. B
It is apparent that al the stage of framing of charge, probative value of the
materi<1ls on record cannot be gone into; the materials brought on record
by the prosecution has to be accepted as true at that stage.
W7wt is the effect of lapse of TADA ?
c
33. In the written submissions filed on behalf of appellant Mool-
chand, it has been urged that TADA having lapsed, section 1(4) which
saves, inter alia, any investigation instituted before the Act expired, itself
lapsed, because of which it is not open to the prosecution to place reliance
on this sub-section to continue the proceeding after expiry of TADA. D
34. We find no force in the aforesaid submission and would refer in
this connection to a recent three-Judge Bench decision of this Court in
Mohd. Iqbal v. State of Maharashtra, JT (1996) 1 SC 114, in which it has
been clearly held that in view of section 1( 4) of the Act, the framers of the E
Act had desired that even after its expiry, the proceeding initiated under
the Act should not come to an end without the final conclusion and
determination, which have, therefore, to be continued in spite of the expiry
of the Act. According to the Bench, there is indeed no scope for a
controversy as to ~.1hether any investigation, inquiry, trial in respect of any F
offence alleged unJer TADA shall come to end as sub-section (4) of
section (l) protects and keeps alive such investigation and trial.
FACTUAL ASPECTS OF THE APPEALS
35. The legal question having been examined, we may advert to the · G
facts of each appellant to decide whether a plima facie case against him
exists, requiring framing of charge, as has been ordered. Before we undertake
this exercise, it may be pointed out that the learned Dcsii,'llated Court in his
impugned judgment, instead of examining the merits of the prosecution case
qua the charged accused, has given reasons as to why he discharged 26 H
206 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A accused. A grievance has, therefore, been ffiade by all the learned counsel
appearing for the accused that this was not the legal approach to be
adopted. We find merit in this grievance inasmuch as the impugned order
ought to have shown that the Designated Court applied its judicial mind
to the material' placed on record against the charged accused. This was
necessary because framing of charge substantially affects the liberty of the
B
concerned person. Because of the large number of accused in the case (and
this number being large as regards charged accused also), the court below
might have adopted the approach he had done. But we do not think it was
right in doing so. Be that as it may, now that we have been apprised by the
prosecution regarding all the materials which were placed before the
c Designated Court against each of the appealing accused, we propose to
examine, whether on the basis of such materials, it can reasonably be held
that a case of charge exists. We would do so separately for ea.ch of the
appellants.
D 36. At this stage, it may be pointed out that the trial court has, apart
from framing individual charge, framed a general charge, wlliich after
naming all the 127 charged accused, reads as under :
"During the period from December, 1992 to April, 1993 at various
places in Bombay, District Raigad and District Thane in India and
E outside India in Dubai (U.A.E.), Pakistan, entered into a criminal
conspiracy and/or were members of the said criminal mnspiracy
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
F 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, handgranades and other explosives substances like
ROX or inflammable substances or fire-arms like AK-56 rifles,
G 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, damage to and destruction of private and public
properties and disruption of supplies of services essential to the
life of the community, and to achieve the objectives of the con"
H spiracy, you all agreed to smuggle fire-arms, ammunition,
STATE v. S.N. THAPA[HANSARIA,J.] 207
detonators, handgranades and high explosives like RDX into India A
and to distribute the same amongst yourselves and your men of
confidence for the purpose of committing terrorist acts and for
the said purpcse to conceal and store all these arms, ammuni-
tion and explosives at such safe places and amongst yourselves
and with your men of confidence till its use for committing B
terrorist acts and achieving the objects of criminal conspiracy
and to dispose off the same as need arises. To orgainse training
camps in Pakistan and in India to import and undergo weapon
training in Handling of arms, ammunitions and explosives to
terrorist acts. To harbour and conceal terrorists/co-con- C
spirators, 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 ter-
rorist acts, to do and commit any other illegal acts as were D
necessary for achieving the aforesaid objectives of the criminal
conspiracy and that on 12.3.1993 were successful in causing
bomb explosions at Stock Exchange Building, Air India Build-
ing, Hotel Centaur at Santacruz, Zaveri Bazar, Katha Bazar,
Century Bazar at Worli, Petrol Pump adjoining Shiv Sena
Bhavan, Plaza Theatre and in lobbing handgranades at Mac- E
chimar Hindu Colony, Mahim and at Bay-52, Sahar Internation-
al Airport which left more than 257 persons dead, 713 injured
and property worth about Rs. 27.0 Crores destroyed, And at-
tempted to cause Bomb explosions at Naigaum Cross Road and
Dhanji Street, all in the city of Bombay and its suburbs i.e. within F
Greater Bombay.
And thereby committed offences punishable under Section
3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i), (ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, G
427, 435, 436, 201 and 212 of Indian Penal Code and offences
under Section 3 and 7 read with Section 25 (lA), (lB), (a) of
the Arms Act, 1959, Section 9-B(l), (a), (b), (c) of the Ex-
plosives Act, 1884, Section 3, 4(a), (b), 5 and 6 of the Explosive
H
208 SUPREME COURT REPORTS [1996[ SUPP. 1 S.C.R.
A Substances Act, 1908 and Section 4 of Prevention of Damage to
Public Property Act, 1984 and within my cognizance.
Abu Asim Azmi
37. The specific charge relating to this appellant is as below :
B
"In addition lo Charge First you accused Abu Asim Azmi is also
charged for having committed the following offences in pursuance
of the criminal conspiracy in Charge First.
SECONDLY that you Abu Asim Azmi in pursuance of the
c aforesaid criminal conspiracy conspired advocated advised abetted
and knowingly facilitated the commission of terrorists act and acts
preparatory to terrorists act i.e. bomb blast and such other act
which were committed in Bombay and its suburbs on 12.3.93 by
agreeing to do any by doing the following overt acts.
D (a) That you sent Sultan-E-Rome Ali Gui, Mohmed Iqbal Ibrahim,
Shakeel Ahmed, Shah Nawaz Khan s/o Faiz Mohmed Khan, Abdul
Aziz, Manzoor Ahmed Mohmed Qureshi, Shaikh Mohmed
Ethesham and Mohmed Shahid Nizamuddin Qureshi, to undergo
weapon training at Pakistan in furtherance of the objectives of the
E aforesaid criminal conspiracy by booking their tickets out of your
own funds through M;s. Hans Air Services which was done by your
firm M/s. Abu Travels and that you thereby committed an offence
punishable under section 3(3) of TADA (P) Acl, 1987 and within
my cognizance."
F 38. The aforesaid shows that the individual charge against Abu is that
he had done the act of booking the tickets of the persons named in the
charge; and this was done from his own funds through M/s. Hans Air
Services. Learned Addi. Solicitor General states that the financial assis-
tance by this appellant would attract the mischief of section 3(3) of TADA
which, inter alia, punishes abetment of a terrorist act. This would be so
G because of the enlarged definition of "abet" as given in section 2(1)(a),
whose clause (iii) makes rendering of any assistance, whether financial or
otherwise, lo a terrorist, an act of abetment. Our attention is also invited
to section 21 (2) which has provided that in a prosecution for an offence
under section 3(3) of the Act, if it is proved that the accused rendered any
H financial assislancc to a person accused of, or reasonably suspected of, an
STATE v. S.N. THAPA[HANSARIA,J.] 209
offence under that section, the Designated Court shall presume, unless the A
contrary is proved, that" such person has committed the offence under that
prov1s1on.
39, Shri Rajinder Singh, appearing for this appellant, did not con-
sider it necessary to contest th.e aforesaid legal position. His sole conten-
B
tion is that the materials sought to be relied on by the prosecution in
alleging that Abu had booked tickets out of his own funds, which is the
gravamen of the charge, has no legs to stand inasmuch as there are
materials galore to show that the fund for booking the 11 air tickets for
Dubai had come, not from the fund of the appellant, but the money had
been made available to the firm of the appellant, named Abu Travel c
Agency, by one Maulana Bukhari about which Shamim Ahmed working as
cashier in the firm has stated. His statement during investigation was that
on 21.1.1993 two persons had come to his office and handed over a sum
of Rs. 1.15 lacs along with 11 passports by saying "Bukhari S<illeb Ne Bheja
Hai" (Bukhari Saheb has sent). This was pursuant to the talk Shamim D
earlier had with Bukhari who had inquired as to whether the firm of the
appellant could arrange for 11 air tickets to Dubai, which was answered in
affirmative. The firm of M/s. Hans Air Services were thereafter contacted
and a sum of Rs. 38,000 was paid in cash by the appellant and Rs. 73,000
through drafts whose numbers are on record. It, however, happened that
one ticket had to be cancelled on 11.3.1993; and because of this an amount E
of Rs. 9,939 was credited in the account of appellant's firm in the books of
M/s. Hans Air Services. It is really this entry which has been pressed into
service by Shri Tulsi to contend that the money for the journey had really
been paid by the appellant's firm.
F
40. According to Shri Rajinder Singh, the fact of aforesaid credit was
not brought to the notice of the appellanl's firm. Then, as the bomb blasts
took place on the next date i.e. 12th March and as Bukhari was shot dead
in the meantime, the money could not have been returned to Bukhari. ft
is, therefore, urged that the mere fact of the aforesaid amount having been
credited in the name of the appellant's firm in the books of Mis. Hans Air G
Services cannot at all suggest, in view of the aforesaid statement of Shamim,
which was duly corroborated by Iftikhar, who was working at the relevant
time as a clerk in M/s. Abu Travels, that the air journey of the 11 persons
was financed by this appellant. The learned counsel has also submitted that
as the Bombay Police had not asked Shamim during interrogation about H
210 SUPREME COURT REP ORTS [1996] SUPP. 1 S.C.R.
A the source of money which had been paid to Hans Air Services, Shamim
had made no statement regarding that, which he had subsequently made
when interrogated by the C.B.I. Another contention to be advocated is that
if the action of booking the tickets in question would have been a part of
tainted activity, the sum of Rs. 73,000 would not have been transmitted to
Hans Air Services through drafts.
B
41. Though it appears intriguing as to why only part of the money
was sent through bank and that too by more than one draft, the aforesaid
facts brought to our notice by Shri Rajender Singh do show that the only
incriminating material, namely, crediting the amount of Rs.9,939 in the
C account of the appellants' firm in the books of Mis Hans Air Services, is a
weak circumstance to say that the appellant might have abetted the offen-
ces in question, which is the real charge against him. We may state that as
framing of charge affects a person's liberty substantially, as pointed out in
Muniswamy's case (supra), the materials Im record must satisfy the mind
of the Court framing the charge that the commission of offence by the
D accused in question was probable. We do not think if a conclusion can
reasonably be drawn only from the above-noted incriminating fact pressed
into service by the prosecution that the appellant might have abetted the
offences in question. There being no material to frame individual charge
under section 3(3) of TADA, we are of opinion that the general charge
E qua this appellant has also to fail, as the only overt act attributed to him
is the aforesaid activity of booking tickets.
42. We, therefore, allow the appeal of this appellant, which arises out
of SLP (Cr!.) No. 3305 of 1995, and order for his discharge.
F Amjad Aziz Meharbaksh
43. The individual charge against this appellant reads as below :
"In addition to Charge First, you Amjad Abdul Aziz Meherbux is
also charged for having committed the following offences in pur-
G
suance to the criminal conspiracy described in Charge First :
SECONDLY : That you Amjad Abdul Aziz Meherbux in
pursuance of the aforesaid criminal conspiracy and during the
period January, 1993 to February, 1993 knowingly facilitated the
H commission of terrorist act and acts preparatory to terrorist act
STATE v. S.N. THAPA[HANSARIA,.l.] 211
· i.e. bomb blast and such other acts which were committed in A
Bombay and its suburbs on 12.3.1993 by doing the following overt
acts:
That you permitted your co-accused Yakoob Abdul Razak
Memon to park motor vehicles laden with arms, ammunition and
B
explosives which were part of the consignment smuggled into the
country for committing terrorist act by Mushtaq @ Ibrahim @
Tiger Abdul Razak Memon and his associates and were brought
to your premises by co-accused Abdul Gani Ismail Turq, Asgar
Yusuf Mukadam and Rafiq Madi and also handed over suit cases
containing hand granades and detonators to your co-accused Altaf c
Ali Mustaq Sayed at the instance of Yakoob Abdul Razak Memon
and thereby you committed an offence punishable under section
3(3) of TADA (P) Act, 1987 and within my cognizance.
THIRDLY : That you Amjad Abdul Aziz Meherbux in pur- D
suance of the aforesaid criminal conspiracy and during the period
3.2.1993 onwards \\'hen arms, ammunition and explosives were
smuggled into the country for committing terrorist act by Tiger
Memon and his associates were in possession of part of the
consignment i.e. arms, ammunition, bandgranades and explosives E
which were brought in motor vehicles and which were parked in
your compound at the instance of your co-accused Yakoob Abdul
Razak Memon and, therefore, you were in possession of these
arms, ammunition, hand granades and explosives unauthorisedly
in Greater Bombay with an intent to aid terrorists by contravening
the provisions of Arms Act, 1959, Explosives Act, 1884, Explosives
F
Substances Act, 1908 and Explosives Rules, 1983 and thereby you
committed an offence Punishable under section 6 of TADA Act,
1987 and within my cognizance.
AND I HEREBY direct that you all be tried by me on the said G
First Charge and Charges framed for the overt acts committed by
you in course of the same transaction i.e. in pursuance of the
con.;;piracy.
11
44. A perusal of the aforesaid charge shows that the allegation H
212 SUPREME COURT REPORTS [1996] SUPP. I S.C.R.
A against Amjad is that he had permitted co-accused Yakoob Abdul Razak
rvtcmon to park motor vehicles laden \Vith arn1s, ammunition an<l explosives
in his premises; an<l that he \Vas in posscs!'>ion of the sa1nc. Shri Tulf'..i
contends that this possession \Vas 11 conscious' 1 and as ~uch in vie\\' of \Vhat
has been held by the Constitution Bench in Sanjay Dutt's case, 1994 (5) SC
B 910, the appellant was rightly charged under section 3(3) of TADA. Our
attention is invited by the learned Addi. Solicitor General to the decisions
of this Court in State of Maharashtra v. Abdul Hamid Haji Mohammed,
[1994] 2 SCC 664 and State of West Bengal v. Mohd. Khalid Etc., [1995] I
SCC 684, wherein possession of bomb or AK-56 was held sufficient to
c attract mischief of TADA.
45. In refuting the aforesaid contentions, Shri Jain submitted that the
materials on record show that after this appellant came to know abom the
parking of the vehicles, which were loaded with arms and ammunition, he
immediately asked Yakoob to remove the jeep from his compound, as has
D been mentioned by the Designated Court itself in his order dated 25th
September, 1993 by which he had released this appellant on bail. The
Designated Court had further observed in this connection that this conduct
showed that the appellant was not agreeable to allow Y akoob to park his
vehicles in his compound, which showed that he had not intentionally aided
E Yakoob. The Designated Court had taken this view by relying on what had
been stated by this appellant in his confession, which was sufficiently
corroborated by confession of the co-accused.
46. Shri Jain has, therefore, submitted, and rightly, that the conduct
of the appellant is clearly indicative of the fact that he was neither in
F conscious possession of the arms, ammunition etc. nor had he aided
Yakoob Memon in any way in the terrorist act. We would, therefore, order
for the discharge of this appellant also by allowing his appeal numbered as
Criminal Appeal 810 of 1994. The general charge would also fail qua this
appellant for the reason given while dealing with the case of the appellant
G Abu.
Raju @ Rajucode Jain
47. We may note the individual charge against this appellant which
H reads as below.
STATE v. S.N. THAPA[HANSARIA.J.] 213
"In addition to charge First, you accused Raju Laxmichand Jain A
@ Raju Kodi, is also charged for having committed the following
offence in pursuance to the criminal conspiracy described in
Charge First :
SECONDLY : That you accused Raju Laxmichand Jain @
B
Raju Kodi in pursuance of the aforesaid criminal conspiracy and
during the period from December, 1992 to April, 1993 abetted and
knowingly facilitated the commission of terrorists act and act
preparatory to terrorist act ie. serial bomb blast and such other
actf which were committed in Bombay and its suburbs on 12.3.1993
by agreeing to do and by doing the following overt acts : c
(a) That you are a close associate of Mushtaq @ Ibrahim @ Tiger
Abdul Razak Memon;
(b) That you participated in smuggling, landing and transportation D
of arms, ammunition and explosives {ROX) which were smuggled
into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak
Memon and his associates which landed at Shekhadi on 3rd and
7th February, 1993 by sending your men and 4 jeeps for facilitating
landing, transportation and distribution of arms, ammunition and E
explosives;
(c) That you lent Motor Scooter No. MP-14-B-5349 which was
purchased by you in the name of your ex-employees P.B. Bali to
Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his as-
F
sociates which was planted as Motor Scooter Bomb at Katha Bazar
on 12.3.1993 and exploded at about 14.15 hours resulting in death
of 4 persons, inuring 21 and huge loss of property worth 40 lacs;
and that you thereby committed an offence punishable under
Section 3(3) of the TADA {P) Act, 1987 and within my cog- G
nizance. 11
48. Shri Tulsi has urged that there are sufficient materials on record
to bring home the aforesaid charge. We were handed over a summary of
these materials reaJing as below : .H
214 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A (i) Association with Tiger Mem on :
Raju Kadi, being the man of confidence of Tiger Memon, was
dealing in disposal of smuggled gold and silver since long.
He purchased M/scooter in April 1992 and lent the same to
B Tiger Memon for smuggling activities and the same scooter was
used as scooter Bomb and exploded at Kathya Bazar.
The Registration papers of the said scooter were recovered at
the instance of the Raju Kadi under a Panchanama dt. 12.7.1993.
c Raju Kadi deposited Rs. 1,61,48,000 in the 'Hathi' account
maintained by co-accused Mulchand Shah and belonging to Tiger
Memon during the period from 7.11.1992 to 4.12.1992. The same
amount was subsequently used by Tiger Memon for blast purpose.
(The Hathi account note was recovered at the instance of co-ac-
D cused Mulchand Sampatraj Shah.
Raju Kodi purchased the said M/Scooter and 3 Jeeps under
fictitious names.
Raju Kodi gave his men and four jeeps for transportation of
E Arms. Ammunition and ROX landed by Tiger Memon. These
jeeps were provided with special cavities to conceal the arms,
ammunition and ROX. These Jeeps were recovered at his instance
under Panchanama dated 1.6.1993. These Jeeps were found with
traces of ROX vide F.S.L. Reports.
F
(ii) The accused Azgar Yusuf Mukadam is narrating in his confes-
sional statement about the association of the appellant with Tiger
Memon and dealing with him in smuggling activities and Hawala
money.
G (iii) The co-accused Mulchand Sampatraj Shah is narrating in his
confessional statement about the association of the appellant with
Tiger Memon and dealing with him in smuggling activities and
Hawala money.
H (iv) The co-accused Salim Mira Moinddin Shaikh is narrating in
STATE v. S.N. THAPA[HANSARIA,J.] 215
his confessional statement about the association with Tiger Memon A
and his smuggling activities.
(v) The co-accused viz. Abdul Gani Ismail Turk is narrating in his
confession about association of the appellant with co-accused tiger
Memon and dealing in s1nug.gling act_ivitics and Ha\va1a money. B
(vi) The co-accused Imtiyaz Yunusmiya Ghavate is narrating in his
confession about association of the appellant with Tiger Memon
and dealing in smuggling activities and Hawala Money."
May it be stated that for the purpose of the present case, we cannot c
enter into the probative value of the statements made by different persons
in this regard tending to support the above.
49. The sole submission of Shri Jethmalani was that even if this
appellant had knowledge about transportation of arms, ammunition and D
ROX brought by Tiger Memon, it cannot be held in law that he played a
part in the conspiracy, and so, the charge under section 3(3) of the Act has
to fail. The materials do not establish even abetment. We are afraid this
submission cannot be accepted because of the concept of conspiracy
explained by us above. Any reasonable person knowing about transporta- E
tion of materials like RD X has to be imputed the intent of its use for illegal
purpose - there being no material to show that ROX can be put to any
legal use. Further, as already held, the prosecution has no obligation under
the law to establish that the appellant had known that the ROX, and for
that matter other objectionable materials would be used for the purpose
F
of blasts which had taken place in Bombay. The alleged fact that the jeeps
provided by the appellant had c~vities to conceal arms, ammunition and
ROX, and that the jeeps were recovered at the instance of the appellant
on 1.6.1993 in which were found traces of ROX, would p1i111a facie show
that the appellant had aided the terrorist act in question, even as per .the
definition of the word "abet" given in section 109 of the Penal Code. The G
alleged financial assistance provided would attract the enlarged definition
of abetment given in section 2(1)(a)(iii) of the Act.
50. Apropos the case of the prosecution that this appellant kept
silence despite knowing about the aforesaid transportation from his driver, H
216 SUPREME COURT REPORTS [1996] SUPP. I S.C.R.
A the subn1ission of Shri Jetlunalani is lhat there is nothing lo show as to
when the appellant had known from his driver about this :;ict. The learned
counsel asked \1,:heth~r the inforn1ation \Vas given i1111ne<liatcly after the
driver had come back, or after the bomb blasts had taken pbce or after he
was arrested? \'Jay \Ve nll.:nlilHl that the fact of kno\vlcdge of the aforesaid
B tran~portation \\'US kno\vn a!-. per the confessional staten1ent of the appel-
lant from his driver. The further statement in this conle\1 is that despite
knowing this he had not disclosed to anybody about transportation, which
according to the appellant was due to the fear of pulice. Shri Jethmalani
asked the just mentioned questions to persuade us to hold that there was
no criminality in the silence of the appellant in not informing the police
c about the transportation. Even if some allowance is made to this part of
the submission of the learned counsel, the law of conspiracy being as
explained above, ap1imafacie case against this appellant under section 3(3)
of the Act does exist. The individual charge as well as the general charge,
therefore, must be maintained in so far as he is concerned. So, his appeal
D - the same being Criminal Appeal 793/95 stands dismissed.
Somnath Thapa
51. This appellant's role in the tragedy is of a higher order inasmnch
E as being an Addi. Collector of Customs, Preventive, the allegation is that
he facilitated movement of arms, ammunition and explosives which were
smuggled into India by Dawood Ibrahim, Mohmed Dosa, Tiger Mcmon
and their associates. The Addi. Solicitor General was emphatic that a full
proof case relating to framing of charge against him does exist. Shri
Shirodkar was equally emphatic in submitting that materials on record fall
F short of establishing a p1ima facie case against this appellant.
52. Let the additional charge framed against him be noted :
''That you Somnath Kakaram Thapa during the period you were
G posted as Additional Collector of Customs, Preventive, Bombay
and particularly during the period January, 1993 to February, 1993
in pursuance of the aforesaid criminal conspiracy and in fur-
therance of its object abetted and knowingly facilitated the com-
mission of terrorists' acts and acts preparatory to terrorists' act i.e.
H bomb blast and such other acts which were committed in Bombay
STATE v. S.N. THAPA[HANSARIA,J.] 217
and its suburbs on 12.3.93 by intentionally aiding and abetting A
Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @Ibrahim
@ Tiger Abdul Razak Memon and their associates and knowingly
facilitated smuggling of arms, ammunition and explosives which
were smuggled into India by Dawood Ibrahim Kaskar, Mohmed
Dosa, Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and B
their associates for the purpose of committing terrorists acts by
your non interference inspite of the fact that you had specific
information and knowledge that arms ammunition and exp.losives
are being smuggled into the country by terrorists and as Additional
Collector of Customs, Preventive y~u were legally bound to prevent
it and that you thereby committed an offence punishable under
c
Section 3(3) of TADA (P) Act, 1987 and within my cogn•,ancc.''
53. According to Shri Tutsi the following materials make out the
prima facie case against this appellant :
D
"(1) Association with Mohd. Dosa :
S.N. Thapa has been an associate of absconding accused Mohd.
Dosa, who has played a major role in the conspiracy to cause bomb
blasts. The Tel. Nos. (Res. & Official) of S.N. Thapa have been
E
·found entered in the Tel. diary seized from Mohd. Hanif @ Raju,
an employee of Mohd. Dosa.
(ii) Association with Tiger Memon :
S.N. Thapa has been an associate of Tiger Memon the prime F
accused in the bomb blast case, who is still absconding. He has
been facilitating the smuggling activities of Tiger Memon against
illegal gratification.
(iii) Meeting with Tiger Memon and Gist of Conversation G
recorded on Micro cassettes :
An absconding accused Yakub Abdul Razak Memon was ar-
rested at New Delhi on 5.8.94. From his possession a number of
documents and articles were seized which include a manuscript of
gist of conversation recorded on May 19, 1994 on Sony Micro H
218 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A cassettes, in the garden of the honse of Yakub Memon in Karachi
(Pakistan). Accused Yakub Memon, Syed Arif (Pakistani Nation-
al) Hazi Taufique J aliawala (Pakistani National) Tiger Memon,
Suleman and Ayub Memon had participated in the conversation.
This gist of conversation refers to various matters which shows
close association of Tiger Memon with Sh. Thapa. In the gist of
B
conversation there is reference of ISi of Pakistan and Tiger
Memon speaking that one day Sh. Thapa had arrived at sea shore
at the time of illegal landing and that Tiger Memon had paid him
Rs. 22 lacs for allowing the smuggling.
c The investigation had established that the said gist of conver-
sation is in the hand-writing of accused Yakub Memon. Inde-
pendent witnesses and the handwriting expert have proved his
handwriting.
(iv) Statement of L.D. Mhatre, Customs Inspr. :
D
LD Mhatre introduced a source (witness code No. Q-3360) to
S.N. Thapa and it was decided that the source would pass on
information about the illegal landings at Shekhadi to Sh. Thapa,
through Mhatre and on receipt of the information Nakabandi may
E be kept at "Sai Morba-Goregoan Junction" because that was the
main exit point after the landing. The source gave an information
of the landing to Mhatre on 29.1.93 and it was passed on to Sh.
Thapa by Mhatre. Thapa kept Nakabandi on the night of 30 &
31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-
F Goregoan Road lea,ing another route open for the escape of
smuggled goods. He did not keep Nakabandi at the pre-arranged
point. He lifted the Nakabandi after two days without any specific
reasons.
The source later on informed Thapa through Mhatre that on
G the night of 3.2.93 instead of silver some chemicals had landed at
Shekhadi Sh. Thapa did not contact the source to ascertain further
details. Nor did he informs about it to his senior officers. He also
did not submitted the Operations Report, as was required.
H (v) Statement of Sh. R.K. Singh.
STATE v. S.N. IBAPA[HANSARIA,J.] 219
Shri R.K. Singh in his confession, has stated that on the night A
of 1.2.93 at about 2.00 AM. Sh. Thapa gave him a telephonic
message saying that something had happened beyond Bankot in
the limits of Pune Customs and that he should personally verify.
R.K. Singh, deputed custom officers for this job. On 4.2.93 another
accused M.S Syed, Customs Superintendent informed R.K. Singh
that the smuggled goods and already passed. R.K. Singh received B
Rs. 3 lacs as illegal gratification for the landing out of which he
gave Rs. 1 Jae to Sh. S.N. Thapa.
(vi) Awareness about landing :
Sh. S.K. Bhardwaj, Collector of Customs, (Prev.) issued a Jetter c
dt. 25.1.93 addressed to Sh. R.K. Singh and A.K. Hassan, Asstt.
Collectors of Customs, mentioning that intelligence had been
received that big quantity of weapons would be smuggled into India
by ISI alongwith gold and silver and these were likely to be landed
in next 15-30 days around Bombay, Shrivardhan, Banko! and D
Ratnagiri etc. The Collector of Customs had directed the subor-
dinate officers to keep a close watch & that all-time alert may be
kept. The copy of this letter was also endorsed to Sh. Thapa, who
had seen it on 27.1.93.
In addition to the aforesaid letter from the statements of the E
customs officer, who had accompanied _Sh. Thapa for nakabandi
on 30th & 31st Jan., 1993, it is clear that Sh. Thapa had knowledge
that arms were likely to be smuggled by Tiger Memon. He had
infact disclosed this information to the subordinate officers at the
time of nakabandi. F
Sh. Thapa was conveyed by Sh. V.M. Doyphode, another AddL
-
Collector of Custom; that landing of smuggled contrabants was
about to lake place near Mhaysla on the night of 2.2.93. Sh. Thapa
intentionally sent a a mis-leading wireless message that something
had happened at Banko! therefore, maximum alert to be kept in G
Alibagh region. Banko! is in a different direction and far away
from Mhasala. Sh. Doyphode had not mentioned about Bankot.
(vii) Vehicle and Vessel Log Book:
When Nakabandi was kept on 30.1.93 by Sh. Thapa, the Govt. H
220 SUPREME COURT REPORTS [1996] SUPP. lS.C.R.
A Maruti Yan No. MH-01-8579 was also taken by Sh. Thapa with
him. However, the investigation had disclosed that the pages of
the log book for the period 26.1.93 to 16.2.93 were missing from
the log book, as these had been torn from it.
In Alibagh Div. of Customs Dcptt. one patrol vessel Al-
B Nedeem is provided. A logbook is maintained for the vessel. The
investigation had disclosed that an entry dt. 2.2.93 has been made
in the logbook showing the accused J .K. Gurav, Customs Inspr.
alongwith subordinate staff did see patroling from Shrivardhan to
Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is
made by J.K. Gurav, which is not correct because when compared
c with the entries made in the wireless logbook of Shrivardhan
Customs office it is seen that patrolling commenced at 2345 hrs.
on 2.2.93 and not on 2100 hrs. Inspr. Gurav is also an accused in
the case, and had actively coinspired alongwith accused S.N. Thapa
and other customs officers."
D 54. From the above gist it appears that the main allegation to estab-
lish the case against Thapa is his allowing the smuggling of the aforesaid
goods by not doing Nakabandi at the pre-arranged point but at some
distance therefrom leaving an escape route for the smugglers to carry the
goods upto Bombay. To appreciate this case of the prose.::ution, it would
E be useful to know the topography of the area, as would appear from the
following rough sketch handed over by Shri Tutsi :
Bombay Mohadi
Mangaon
F
G
Shekhadi
H Shivardhan
STATE v. S.N. THAPA [HANSARJA.J.] 221
55. Shri Tulsi contended that Thapa had been forewarned by a A
communication of Shri S.K. Bhardwaj, Collector of Customs (Preventive)
dated 25.1.93 addressed to S/Shri R.K. Singh and AK. Hassan, Asstl. ·
CoJlectors of Customs, that intelligence had been received that big quan-
tity of weapons would be smuggled into India by ISi alon1,'With gold and
silver which were Jikdy Lo land in next 15-30 days around Bombay, B
Shrivardhan, Banko! and Ratnagiri etc., a copy of which was endorsed to
Thapa, who had seen the same. In fact he disclosed this information to
his subordinate officers also. (The fact that Thapa had received a copy of
the letter, about which Shri Shirodkar mentioned many a time, has no
significance as copy was apparently sent to apprise Thapa of the contente., C
requiring him to take such steps as would have been within the ken and
competence of a high custom official on the preventive side like him). It
deserves to be noted that the information was not only about smuggling
of gold and silver alone, _but of weapons and that too by the ISi- an agency
alleged to be extremely inimical to India. This is not all. Indeed, there are D
materials on record to show that Thapa had information about landing of
RDX (described as 'Kala Sabun' in the under-world) at Shekhadi and
Shrivardhan on 3.2.93. According to Addi. Solicitor General, Thapa had
facilitated the movement or he used to receive fat sum of money from
Tiger Memori as quid pro quo for help in his smuggling activities. E
56. Shri Shirodkar .strongly refuted the contenti0ns or the Addi.
Solicitor General and, according to him, Nakabandi had been done at
the places suggested by the local officers like inspectors Agarkar and
Kopikar, who had better knowledge of the place of the Nakabandi, and F
therefore, no fault can be found with Thapa for having done Nakabandi
at a wrong place. As to the motive ascribed, the submission was that to
sustain the same the only material is a gist of comersation found from
the possession of absconding accused Yakub Memon who was arrested
at New Delhi on 5.8.94. The conversation itself was recorded on a G
cassette, which, according to Shri Shirodkar, was not at all audible as
was certified by the Doordarshan Centre of Bombay. The learned coun-
sel would also require us to bear in mind that Thapa had been granted
bail not only by this Court on 5.9.1994, but subsequently by the Desig-
nated Court on 7.2.1993, which had been done bearing in mind the H
222 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
A materials which had come on record till then.
57. A perusal of the statement made by aforesaid two Inspectors
shows that they had made two statements at two points of time. The first
of these had been described as "original statement" by Shri Shirodkar in
B his written note and the second as "further statement". In the original
statement, these two Inspectors are said to have told Thapa, on being
asked which would be crucial places for laying trap, that the same were
Purar Phata and Behan Ph;ta, at which places trap was in fact laid. But
then, in the further statement the Inspectors are said to have opined
that watch should be kept at Sai-Morba-Goregoan junction, because
c that was the main exit point for smuggling done at Shrivardhan and
Shekhadi. Shri Shirodkar would not like us to rely on what was stated
subsequently be these Inspectors, as that was under pressure of inves-
tigation undertaken subsequently by the C.B.I. We do not think the law
D permits us to find out at this stage as to which of the two versions given
by two Inspectors is correct. We have said so because at the stage of
framing of charge probative value of the statement cannot be gone into,
which would come to be decided at the close of the trial. There is no
doubt that if the subsequent statement be correct, Nakabandi was done
E not at the proper place, as that left Sai-Morba Road free for the
smugglers to carry the goods upto Bombay.
58. Shri Shirodkar submitted that the Nakabandi was organised at
Purar Phata and Behan Phata also because a trap has to be laid at a little
distance from the crucial point so that it may not come to the notice of all
F and sundry, which may prove abortive, as information about the same may
be passed on to the smugglers. We do not propose to express any opinion
on this submission also, as this would be a matter to be decided at the trial
when defence version of the case would be examined.
G 59. As to the motive sought to be established on the basis of a gist
of the tape recorded conversation said to have been recovered from
absconding accused Yakub Memon, which contained the statement that
one day Thapa had arrived at sea shore at the time of illegal landing and
Tiger Menon had paid him Rs. 22 lacs for allowing the smuggling, the
H submission of the learned counsel is that it is hard to believe that Yakub
STATE v. S.N. THAPA[HANSARIA,J.] 223
Memon would have carried in his pocket a gist like the one at hand. Even A
if we were to give some benefit to the appellant on this score, that would
tend to demolish the case of the prosecution mainly relatable to motive,
which is not required to be established to bring home an accusation. As to
Thapa, the allegation relates to facilitating movement of arms, RDX etc.,
which act would amount to abetment, as it would be an assistance, which B
would attract clause (iii) of section 2(i)(a) of the Act, defining the word
'abet'. It may be noted that the individual charge against Thapa is for
commission of offence under section 3(3) of TADA, which, inter alia,
makes abetment punishable.
c
60. Shri Shirodkar submitted that the investigating agency wanted to
rope in Thapa any how, which was apparent from the fact that it took
recourse to even manufacturing of evidence, as telephone number of
Dawood Ibrahim was fed in the digital diary found at the residence of this
appellant on search being made. Shri Tulsi explained as to how this had D
happened. We do not propose to enter into this aspect of the matter,
except observing thal investigation at times is either sluggish or over
zealous - it may over shoot also.
61. All told, we are satisfied that charges were rightly framed against E
Thapa. This takes us to the State's appeal arising out of SLP (Cr!.) No.
2196 of 1995 in which the prayer is to cancel the bail of Thapa, which was
ordered by this Court on April 5, 1994 and then by the Designated Court
by its order dated February 7, 1995. A perusal of this Court's order shows
that when it had examined the matter, charge-sheet had not been sub-
mitted. It was, therefore, desired that the Designated Court should recon-
F
sider the matter with a view to finding out whether the evidenced collected
in the court of investigation showed his involvement. A perusal of Desig-
nated Court's order shows that though according to it a case was made out
by the prosecution against Thapa, it took the view that there was want of
material which could be tendered as substantive evidence to prove associa- G
tion of Thapa with Tiger Memon and his associates. And so, it allowed
Thapa to continue on bail. On these special facts, we are not satisfied if a
case for cancellation of bail has been made out, despite our taking the view
that charges were rightly framed against him. The State's appeal is, there-
fore, dismissed. H
224 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
A Conclusion
62. To conclude, appeals of Abu Azim and Amjad Aziz Meherbux
are allowed and they stand discharged. Appeals of Raju @ Rajucode Jain
and Somnath Thapa arc dismissed. The appeal of State is also dismissed.
B 63. Before parting, we may say that alongwith these appeals we had
heard the case of one Mulchand Shah, being covered by SLP (Crl.). No.
894 of 1995. But, by an order passed on 31.1.1996 that SLP had been
delinked from these cases, on the prayer of counsel for Shah and was
ordered lo be listed separately. So we have not dealt with that SLP.
S.M. State's appeal dismissed.
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