Holding

An appellate court may set aside an acquittal only where the judgment is perverse or unsustainable; in the cases of A‑17, A‑24, A‑75 and A‑94 the acquittals were perverse, warranting conviction for larger conspiracy.

Summary

The Supreme Court examined 19 appeals filed by the State of Maharashtra against acquittals in the 1993 Bombay serial bomb blast case, focusing on conspiracy charges under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Indian Penal Code. It reiterated the limited circumstances in which an appellate court may interfere with a judgment of acquittal, emphasizing the presumption of innocence and the need for a perverse or unsustainable finding. Applying these principles, the Court upheld the acquittals in 15 appeals but set aside the acquittals of four accused (A‑17, A‑24, A‑75 and A‑94), finding the trial courts' conclusions perverse and convicting them of larger conspiracy with life imprisonment. The remaining appeals were dismissed.

Issues considered

The criteria for appellate interference with a judgment of acquittal under criminal law.
Whether the evidence against the specific respondents established participation in a larger conspiracy under TADA and IPC.
The admissibility and weight of confessional statements recorded under Section 15 of TADA.
Whether the trial courts' findings were perverse, irrational or against the weight of evidence.

Legislation cited

Arms Act, 1959s. 25(1-A), s. 25(1-B)(a), s. 3, s. 7
Customs Act, 1962s. 111, s. 135
Explosives Act, 1884s. 9-B(1)(a)(b)(c)
Explosive Substances Act, 1908s. 3, s. 4(a), s. 4(b), s. 5, s. 6
Indian Penal Code, 1860s. 120-B, s. 201, s. 212, s. 302, s. 307, s. 324, s. 326, s. 427, s. 435, s. 436
Prevention of Damage to Public Property Act, 1984s. 4
TADA Rules, 1987s. 15(3)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3(2)(i)(ii), s. 3(3), s. 3(4), s. 5, s. 6

Subjects

TerrorismConspiracyAcquittalAppellate reviewTADABombay blastConfessional statementsPerverse judgmentLife imprisonment

Judgment

[2013] 16 S.C.R. 244

A STATE OF MAHARASHTRA
v.
FAZAL REHMAN ABDUL
(Criminal Appeal No. 418 of 2011)
(PART-5)
B MARCH 21, 2013

[P. SATHASIVAM AND DR. 8.5. CHAUHAN, JJ.]

Penal Code, 1860 - s. 120-B, 302, 307, 326, 324, 427,
C 435, 436, 201 and 212 - Terrorists and Disruptive Activities
(Prevention) Act, 1987 - ss.3(2)(i)(ii}, 3(3) and (4), 5 and 6 -
Arms Act, 1959 - ss.3 and 7 r/w. s.25(1-A}, (1-B)(a) -
Explosives Act, 1884 - ss.3, 4(a},(b}, 5 and 6- Prevention of
Damage to Public Property Act, 1984 - s.4 - Serial bomb-
D blast in Bombay - Acquittal of respondents-accused - By
Designated Court - Appeal by State - Held. In the facts of
the case, respondent-accused Nos. 17, 24, 75 and 94 were
wrongly acquitted under charge of conspiracy - Hence
convicted for the charge of larger conspiracy and sentenced
E to life imprisonment - Acquittal of rest of the respondent-
accused upheld.

Appeal - Against acquittal - Scrutiny of - By appellate
court - Criteria to be followed - Discussed.

F In the Bombay blast in the year 1993, 257 persons
lost their lives and 713 were injured and there had been
loss of property worth several crores. 40 of the accused,
since absconding, were not put to trial. The Designated
Court framed charges against 138 accused persons.
G During trial, 11 accused died, 2 turned hostile and 2 were
discharged. The rest of the accused were charged.

The respondents-accused had been charged for
general conspiracy which was framed against all the
H 244
STATE OF MAHARASHTRA v. FAZAL REHMAN 245
ABDUL
accused persons for the offences punishable under A
Section 3(3) TADA and Section 120-B IPC, read with
Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with
Sections 302, 307 ,326,324,427 ,435,436, 201 and 212 IPC
and offences under Sections 3 and 7 read with Sections
25 (I-A), (l·B)(a) of the Arms Act, 1959, Sections 9-B B
(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b),
5 and 6 of the Explosive Substances Act, 1908 and
Section 4 of the Prevention of Damage to Public Property
Act, 1984. In addition, the respondents-accused were
also charged for other offences. c
The respondents-accused in the present appeals
were acquitted on certain charges and particularly the
main charge of conspiracy. The State filed the present 19
appeals against the respondent-accused challenging
their acquittal. · D

Allowing the Appeal Nos. 39112011, 1027 of 2012, 395
of 2011, 397 of 2011 and dismissing the rest of the
appeals, the Court
E
HELD: 1. The appellate court should not ordinarily
1
\set aside a judgment of acquittal in a case where two
views are possible, though the view of the appellate court
may be the more probable one. While dealing with a
judgment of acquittal, the appellate court has to consider F
the entire evidence on record, so as to arrive at a finding
as to whether the views of the trial court were perverse
or otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding of fact,
the trial court had failed to take into consideration
admissible evidence and/or had taken into consideration G
the evidence brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be a subject-
matter of scrutiny by the 'appellate court. In exceptional
cases where there are c'ompelling circumstances, and
the judgment under appeal is found to be perverse, the H
246 SUPREME COURT REPORTS [2013] 16 S.C.R.

A appellate court can interfere with the order of acquittal.
The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial
court's acquittal bolsters the presumption of his
innocence. Interference in a routine manner where the
B other view is possible should be avoided, unless there
are good reasons for interference. The findings of fact
recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration
c irrelevant/inadmissible material. The finding may also be
said to be perverse if It is "against the weight of
evidence", or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. [Para 9) [260-C-
H; 261-A]
D CRIMINAL APPEAL NO. 418 OF 2011:

2. The Designated Court after appreciating the entire
evidence came to the conclusion that there was nothing
on record to show that the respondent-A-76 though
E facilitated sending A-39 to Dubai, had any knowledge of
the purpose of going to Dubai or Pakistan for the simple
reason that A-39 himself dl~closed that he was told In
Dubai that he would go to Pakistan and the purpose for
going there would be explalned to him lfJter on. The
F confessional statement of A-39 did not reveal the
Involvement of the respondent In persuading A-39 to
undergo weapons' training In Pakistan. There Is no
reason to Interfere with the cogent reasons given by the
Speclal Judge. The appeal lacks merit and therefore
G dismissed. [Paras 8 and 10) [259-H; 260-A; 261·8]
CRIMINAL APPEAL NO. 409 OF 2011
3. In view of records of the case, none of the
respondents-accused Nos. (l.e.A-88, A·109, A·114, A·126,
H A·127 and A·130) was aware of ·the Intention of the
STATE OF MAHARASHTRA v. FAZAL REHMAN 247
ABDUL
conspirators to send the respondents to Pakistan for A
training to deal with the arms and ammunition rather they
had been taken away to Dubai on false pretext and had
been misguided. Thus, the inference drawn and
conclusion reached by the Designated Court that as they
did not have knowledge that they were going to Pakistan B
for training in handling of arms, is correct. There is no
reason to interfere with the same. The appeal lacks merit
and hence dismissed. [Para 26]. [266-B-C]
CRIMINAL APPEAL NOS. 601 OF 2011:
c
4. If the evidence of all the witnesses is read
conjointly, itbecomes evident that none of the witnesses
had named either of the respondents-accused. The other
persons of the police team who had been named stood
convicted. The respondents have been acquitted on the D
ground that in absence of Test Identification Parade or
their identification by any of the witnesses/accused in the
court, it was not safe to make a guess work that they or
either of them could also be member(s) of the said police
team which intercepted the contraband. The evidence on E
record reveal th.at police team headed by Inspector (A·
116) was having 6-7 constables. There was nothing on
record on the basis of which It could be assumed that the
respondents were the members of the said team. It Is
nobody's case that the total strength of the Shrlvardhan F
Pollce Station was 7 or 8, so It can be presumed that all
except one or two might have come. The Sarpanchas of
7 ~llages In close proximity, deposed In court to falsify
the al/bl taken by the respondents that they were on
pollce patrolllng In their villages. Statements made by the G
Sarpanchas that none of the respondents had visited
their village on patrolling, cannot. be a proof that the
respondents were . members· of the team, Which
Intercepted the said trucks. The,Deslgnated Court rightly
came to the conclusion that there was no material to
connect the respondents with the aforesaid Incident and H
248 SUPREME COURT REPORTS [2013] 16 S.C.R.

A it was not safe to presume that the respondents were
also the members of the police team which intercepted
the said trucks carrying contraband. Hence, there Is no
cogent reason to interfere with the impugned judgment.
The appeal lacks merit and hence dismissed. [Paras 36,
B 37 and 39) [270-B·F, HJ

CRIMINAL APPEAL N0.405 OF 2011:

5. The Designated Court acquitted the respondent (A·
38) of the charges only on the ground that the prosecution
C did not consider it proper to make the owner of the truck,
an accused or as a witness to find out as to whether the
respondent (A-38) had been a regular driver with him and
as to whether on that particular date he was on duty. No
person had identified him as he was driving the said
D vehicle on the said date. The confessional statement of A·
62 was not corroborated by any other witness/accused.
There is no cogent reason to Interfere with the order
passed by the Designated Court and hence the appeal Is
dismissed. [Paras 61 and 63) [279-F-G;. 280-B]
E CRIMINAL APPEAL N0.1033 OF 2012:

6. The only allegation against the respondent (A·103)
was that she had accompanied her hushand (AA) while
he carried the arms, ammunition and explosives. Further,
F there Is nothing on record to show that she had any
knowledge of such arms, and the purpose for which the
same had been brought. Further, the sister-in-law of the
respondent was neither made the accused nor a witness.
Her husband is still absconding. In such a fact-situation,
G the findings recorded by the Designated Court do not
warrant any interference. The evidence against the
respondent-accused i.e. confessional statements of the
co-accused namely A-12 and A-71 were rlghtly discarded
by the Designated Court In view of the fact that the officer
H who recorded their statement, did not meet the statutory
STATE OF MAHARASHTRA v. FAZAL REHMAN 249
ABDUL
requirement of giving him the statutory warning that he A
was not bound to make his confession and that if made,
it would be used against him. The appeal, is, therefore,
dismissed. [Paras 82 and 86] [285-B, H; 286-A-B]

CRIMINAL APPEAL NO. 594 OF 2011: B
7. The Special Judge came to the conclusion that the
respondent (A-105) had not made any confession. So far
as the confession of the co-accused A-74 is concerned,
it contained reference regarding the presence of one
father, but the same does not specifically reveal A-105 C
being that person, while the goods were being concealed
after taking them from the house of the respondent-
accused to the mango grove. The same conclusion was
drawn reg<trding the confession of the co-accused A-81.
He made a passing remark revealing the presence of D
respondent (A-105) at the relevant time. Still the same
specifically failed to depict any act committed by him in
relation with the contraband goods. More so, there seems
to be some contradiction and variance in the sequence
of events as given in the confessions. Thus, it was E
difficult to accept that the said material in confession of
the co-accused can be accepted without there being any
independent corroboration, though the corroboration
was required only on material points and not on each
and every point. The confessional statement of A-74 and F
A-81 cannot be said to be cogent enough for establishing
involvement of the respondent (A-105) in commission of
the acts amounting to a criminal offence required to be
strictly proved. Thus, there is no evidence on record to
show that the respondent had been involved in the crime G
in any manner. If his sons had indulged in the offence,
his mere presence in his house, where the contraband
had been hidden, would not make the respondent
responsible. The appeal lacks merit and, therefore,
dismissed. [Paras 96 and 98] [289-E-H; 290-A, C-0]
H
250 SUPREME COURT REPORTS [2013] 16 S.C.R.

A CRIMINAL APPEAL NO. 402 of 2011:

8. The Special Judge gave benefit of doubt .to the
respondent (A-132), reaching the conclusion that the
prosecution failed to disclose the correct identity of the
accused. None of the witness/accused (in their
8
confessional statements) had referred to his full name or
address even once. In such a fact-situation, the Special
Judge has rightly given him the benefit of doubt. In the
facts and circumstances of the case, the prosecution failed
to fix the identity of the accused who had gone to Pakistan
C for training, and therefore the respondent has rightly been
given the benefit of doubt. The appeal is, therefore,
dismissed. [Paras 109, 110 and 112] [294-8-D, E]

CRIMINAL APPEAL NO. 1022 OF 2012:
D
9. There is no evidence on record to show that the
respondent (A-27) had any knowledge about the nature
of the articles smuggled in India. In view thereof, there is
no cogent reason to interfere with the well-reasoned
E judgment of the Designated Court whereby he was not
held guilty for commission of offences including that of
•
conspiracy, in view of the fact that his acts were not for
furthering the object of conspiracy of or involvement of
A-27 in the same. Therefore, the appeal is dismissed.
F [Paras 123 and 125] [299-8-D]

CRIMINAL APPEAL NO. 393 OF 2011:

10. There is no evidence on record to show that the
respondent (A-60) had any knowledge about the nature
G of the articles smuggled in India. In view thereof, no
interference is warranted on the facts of the case. The
appeal is, therefore, dismissed. [Para 137] [304-8)

CRIMINAL APPEAL NO. 597 OF 2011:

H · 'H. The Designated Court after considering the
. STATE OF MAHARASHTRA v. FAZAL REHMAN. 251
ABDUL
evidence as regards the respondent (A-55), came to the A
conclusion that the prosecution failed to disclose any
material showing his nexus with conspiracy for which he
was charged. There is no reason to interfere with the
impugned judgment applying the parameters laid down
by this court for interference against the order of B
acquittal. The evidence on r.ecord disclosed his
involvement and association with Tiger Memon (AA) in
landing and transportation, but that is because his father
A-14, was the landing agent. The appeal lacks merit, and,
therefore, dismissed. [Paras 203 and 204] [329-F; 330-F, c
H; 331-A-B]

CRIMINAL APPEAL NO. 407 OF 2011: ·

12. The Special Judge after appreciating the entire
evidence held that there being no evidence to come to D
the conclusion that the contraband material were part and
"parcel of the consignment smuggled into country by co-
conspirators for commission of terrorist acts for which
· the charge at head 1stly is framed, A-72 cannot be held
guilty for the said conspiracy. As per confessional E
statement of A-41, he had given 20 hand grenades to one
Ayub resident of Oshiwara. However, he also disclosed
that after his arrest, the said contraband had been
1

produced before the police by his father through 'H'. In
~iew of the above, the conclusion reached by the F
Designated Court that there is nothing on the record to
establish that Ayub of Oshiwara could be A~72, does not
require interference. In such a fact-situation, the
respondent (A-72) is entitled to benefit of doubt, so far as
the charge of conspiracy is concerned. The appeal lacks G
merit, and hence dismissed. [Paras 211 and 213] [334-C;
335-C-D; 336-D-E]

CRIMINAL APPEAL NO. 1025 OF 2012:

13. The respondent (A-135) had participated in the H.
252 SUPREME COURT REPORTS [2013] 16 S.C.R.

A landing at Shekhadi when the contraband were
smuggled into India. However, as the evidence on record
as well as the findings recorded by the Designated Court
remain to the effect that he was not aware of the articles
smuggled, he cannot be held liable for punishment for
B conspiracy. There is no reason to interfere with the order
passed by the Special Judge. The appeal lacks merit, and
hence dismissed. [Paras 223 and 225) [340-C-D, E]

CRIMINAL APPEAL NO. 599 OF 2011:

C 14. The Designated Court after appreciating the
confessional statements of the respondent (A-58) of the
co-accused, A-64, A-109, A-114, A-126, A-127, A-128, A-130
and that of PWs 2 and 207 reached the conclusion that
the acts alleged to have been committed by A-58, being
D much prior to main conspiracy of committing serial blast
having taken final shape and A-58 after returning from
Dubai having not participated in any act furthering object
of larger conspiracy for which charge at head 1st ly is
framed, he cannot be held liable for larger conspiracy.
E In view of the fact that the respondent has already served
the sentence of 10 years and paid the fine, therefore the
Court is not inclined to allow this appeal. Hence, it is
dismissed. [Paras 232 and 234) [343-B; 344-B, C, E]

CRIMINAL APPEAL NO. 404 OF 2011:
F
15. The Special Judge acquitted the respondent (A-
48) of all the charges, discarding all the confessional
statements on the ground that the officer who recorded
the confessional statement of the respondent and other
G co-accused did not fulfill the requirement of law by giving
any warning to the said persons telling (i) that they were
not bound to make a confession and (ii) if made, it could
be used against them as evidence. The Designated Court
rightly rejected the confessional statement made by the
H respondent and the co-accused as the first part of these
STATE OF MAHARASHTRA v. FAZAL REHMAN 253
ABDUL
statements has not been recorded in consonance with A
the requirement of statutory provisions in s.15 of the
TADA Act and r.15(3) of TADA Rules. Therefore, the
appeal is dismissed. [Paras 41(8) and 52] [271-E-F, 276-
G-H; 277-A]
B
S.N. Dube v. N.B. Bhoir and Ors. (2000) 2 SCC 254:
2000 (1) SCR 200; Lal Singh v. State of Gujarat and Anr.
(2001) 3 SCC 221: 2001 (1) SCR 111; Bharatbhai v. State
of Gujarat (2002) 8 SCC 447: 2002 (3) Suppl. SCR 46 -
relied on.
c
CRIMINAL APPEAL N0.394 OF 2011:

16. The confession of the respondent (A-80) and
other co-accused i.e. A-20 and A-21 was discarded by the
Designated Court for the reason that it had not been D
recorded strictly in accordance with the provisions of
Section 15 TADA and Rule 15 of TADA Rules, 1987. This
Court concurs with the finding of the Designated Court
in view of the law that the compliance of Section 15 and
Rule 15 of TADA, 1987 is mandatory. As there is no E
·admissible evidence on record connecting the
respondent (A-80) to :the crime, he has rightly been
acquitted by the court below. Thus, no interference is
required and the appeal is dismissed. [Paras 70, 74 and
75] [281-D-E, 282-D, E]
F
S.N. Dube vs. N.B. Bhoir and Ors. (2000) 2 SCC 254:
2000 (1) SCR 200; Lal Singh vs. State of Gujarat and Anr.
(2001) 3 SCC 221: 2001 (1) SCR 111; Bharatbhai vs. State
of Gujarat (2002) 8 SCC 447: 2002 (3) Suppl. SCR 46 -
relied on. G

CRIMINAL APPEAL NO. 391 OF 2011:

17. The Special Judge recorded the finding that the
respondent (A-17) did not do anything to further the
object of conspiracy. However, landing was not of silver H
254 SUPREME COURT REPORTS [2013] 16 S.C.R.

A and gold, but of arms, ammunition and explosives. The
respondent was fully aware of the nature of the smuggled
articles and also the purpose for which the contraband
goods had been smuggled into India. Even after having
such a knowledge, his close association with 'TM' (AA)
s was confirmed and he participated and facilitated the
transportation of the said articles. The findings by
Designated Court are mutually inconsistent and are not
in consonance with each other. In such a fact-situation.,
the Special Judge was not justified in acquitting the
c respondent (A-17) of the charge of conspiracy. Therefore,
the respondent is convicted for the charge firstly, and
awarded the life imprisonment. [Paras 168 and 171] [316-
B-E-G]

CRIMINAL APPEAL NO. 1027 OF 2012:
D
18. From the confessional statement made by the
respondent (A-24), it can be ascertained that he was
aware of the arms and ammunition being landed. He
stated that he was given arms and further, was told to s.it
E on alert. He also stated that 'TM' (AA) even taught him
how to use handgrenades and also paid him for his
services. He was also later contacted by co-accused for
the disposal of 59 packets stored in a godown and was
paid Rs. 5 lakhs for the same. He further revealed that the
F contraband used in the Bombay Blast was the same as
had been landed by him and other co-accused at
Shrivardhan. The co-accused A-15, A-50, A-64, A-62, A-91,
A-29 and A-58 have corroborated the knowledge of the
respondent and the fact that he was present when the
G landing was taking place. Thus, the involvement and
participation of A-24 was throughout in the main
conspiracy. The order of the Designated Court acquitting
him on the charge of larger conspiracy is perverse, in
view of the evidence on record. Therefore, conspiracy
H stands proved. Judgment to that extent is set aside and
STATE OF MAHARASHTRA v. ·FAZAL REHMAN 255
ABDUL
the appeal is allowed, and the sentence is enhanced to A
life imprisonment. [Paras 189 and 190) [325-G-H; 326-A-
B, C•D]
· CRIMINAL APPEAL NO. 395 of 2011:

19. The Evidence against the rnspondent (A-75) are· 8
his own confessional statement, and confessional
· statement of. co-accuse.d (A-134). The case of the
pmsecution was further corroborated by the Investigating
Officer as well as by the panch witnesses, particuial'ly,
PW-340 and PW-585 and the documents (i.e his fictitious C
passport, embarkation and disembarkation cards) which
facilitated the journey of the respondent (A-75) from
Bombay to Dubai and Dubai to Bombay~ The Special
Judge recorded the finding that the respondent (A-75) did
not do anything to further the object of conspiracy. D
However, he was involved in sending PW-1 to Dubai and
further to Pakistan for getting initiated in the training of
weapons. The respondent received the co-accused at the
airport and attended 7 conspiratorial meetings held in
Dubai. Admittedly, the respondent who travelled to Dubai E
had a fictitious passport for a particular purpose. He
further went to Pakistan and undertook the training in
handling the arms, ammunition and explosives. He met
'TM' (AA) in Dubai, who told him that they would teach a
lesson to the Indian Government by exploding bombs etc. F
However, the Designated Court did not convict him on
the charge of conspiracy. Such a conclusion is not worth
acceptance and the said finding being perverse, is liable
to be set aside. The respondent is liable to be convicted
for the charge first and awarded the life imprisonment. G
Hence the appeal is allowed. [Paras 240, 244 and 248)
[346-B-C; 348-D; 351-E-H; 352-A-B]

CRIMINAL APPEAL NO. 397 of 2011:

20. In view of the fact that the respondent (A-94) had H
I
I
I
•

II ,'

256 SUPREME COURT REPORTS [2013] 16 S.C.R.

A gone to Pakistan and took training in handling the arms,
ammunition and explosives -and also attended the
conspiratorial meeting· at Dubai and took oath In the ..
name of Quran not to divulge any information regarding
the conspiracy, it is abundantly clear that the respondent '
B was aware of the purpose of training. in Pakistan and he
undertook the. training there without any protest ..
Evidence against him were his. own confessional
statements and confessional statements of the co-
I

'l accused A-13, A-49, A-100, A-29, A-32, A-36, A-39 and A·
I
I. c 98. · PW.237 and PW.231 have also proved the departure
of respondent (A-94) from Bombay to Dubai on 17.2.1993 .
I and his arrival in Bombay on 3.3.1993 respectively. The
Special' Judge committed an error in not convicting the.·
respondent for the larger conspiracy .. Therefore, the
: appeal· is allowed. and he is awarded life imprisonment.
0
[Paras 266, 254, 263 and 267] [361-D, E; 354-D-H; 355-A;
357 -B, C; 361 ·F] . • . . ,
Case Law Reference
2000.(1) 'SCR 200 · relied on Paras 48
E
1
,2001 (1) SCR 111 · relied on . Paras· 49

I 2002 (3) · Suppl. SCR 46 relied on Paras 50
. · CRiMINALAPPELLATE JURISDICTION : Criminal Appeal
F No. (s). 418 of 2011 etc. · ,.

From the Judgment and Order dated 02.08.2007 of the
Designated Court for Bombay Bomb· Blast Case, Mumbai in
BBC No. 1 of 1993 . ·· ' " .
G
WITH
.
Crl.A. Nos. 409, 601, 404. 405, 394 of 2011, 1033 of 2012,
594, 402 of 2011, 1022 of 2012, 393, 391 of 2011, 1027 of
2012: 597, 407 of 2011, 1025 of 2012, 599, 395 & 397 of
H 2011. ' . . .

L
STATE OF MAHARASHTRA v. FAZAL REHMAN 257
ABDUL
Mukul Gupta, Satyakam, Anubhav Kumar, Anando A
Mukherjee, Harsh N. Parekh, Arvind Kumar Sharma for the
Appellant.

Shekhar Kumar, Anjali Jha, Mushtaq Ahmad, K.N. Rai,
Vishwa Pal Singh for the Respondent. B
The Judgment of the Court was deliverd by

DR. B.S. CHAUHAN, J. Criminal Appeal No. 418 of 2011.
1. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007, passed by a c
Special Judge of the Designated Court under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred
to as the 'TADA') in the Bombay Blast Case No. 1/93,
acquitting the respondent of all the charges.
•
2. Facts and circumstances giving rise to this appeal are
D
that:

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

B. Bombay Blast took place on 12.3.1993 in which 257 F
persons lost their lives and 713were injured. In addition thereto,
there had been loss of property worth several crores. The
Bombay police investigated the matter at initial stage .but
subsequently it was entrusted to the Central Bureau of
Investigation (hereinafter referred to as 'CBI') and on conclusion G
of the investigation, a chargesheet was filed against a large
number of accused persons. Out of the accused persons
against whom chargesheet was filed, 40 accused could not be
put to trial as they have been absconding. Thus, the Designated
Court under TADA framed charges against 138 accused
H
258 SUPREME COURT REPORTS [2013] 16 S.C.R.

A persons. During the trial, 11 accused died and 2 accused
turned hostile. Further the Designated Court discharged 2
accused during trial and the remaining persons including
respondent (A-76) stood charged.

C. The respondent had been charged for general
8
conspiracy which is framed against all the accused persons for
the offences punist\able under Section 3(3) TADA and Section
120-B of Indian Penal Code, 1860 (hereinafter referred to as
the 'IPC') read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA
C and read with Sections 302, 307,326,324,427,435,436, 201
and 212 IPC and offences under Sections 3 and 7 read with
Sections 25 (I-A), (1-B)(a) of the Arms Act, 1959, Sections 9-B
(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5
and 6 of the Explosive Substances Act, 1908 and Section 4 of
the Prevention of Damage to Public Property Act, 1984.
D
D. In addition, the respondent had been charged for
persuading his brother-in-law Firoz Amani Malik (A-39) to
undergo weapons' training in Pakistan and keeping 111 his
possession 4 handgrenades brought to him by Firoz Amani
E Malik (A-39) and for handing over the same to Mohd. Jabir (A-
93-dead), showing that the same had been smuggled into India
for committing terrorist activities.

E. The Designated Court after conclusion of the trial
F acquitted the respondent of all the charges.

Hence, this appeal.

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

4. On the contrary, learned counsel appearing for the
H
STATE OF MAHARASHTRAiv: FAZAL REHMAN · 259
ABDUL [DR. B.S. CHAUHAN, J.]
.. respondent tias submitted that the co-accuseci' (A-39), who was· A
brother-in-law of respondent himself, had ncit been aware of the .
purpose for which he had been taken to Dubai. The respondent .
.· cannot be held responsible for sending• Firoz(A-39) for. any,
cnminal activity. Thus, the' well-reasoned judgment ofthe Special ·
Judge does not require.interference.<; . . .,., • . . . B
1.-, • •I' • ~.' '

5: We have· considered the. rival submissions made by
learned co4nset for the parties and perused the' recori:t

. The.re is no confession by the res~~~de'ni ~66~se~(A-76) .
•• ' • < • • "' , ••• , • '/ ' • • ; -- .. • -·' • ' -.. --·

c
: '6.Confessi~l1at statement of Firoz'@Akram'Amani Malik .
. (A-3°9)revealed that the said respondent was the brother-in:law:
of Firoz@ Akram Amani Malik.(Ac39). The said accused Firoz
@ Akram 'Amani Malik (A:39) had been awarded the death
sentence in this ver)i:case and: tiis appeal· is being heard D
atong""'.ilh this case. ' ; ' " ., ' .· ., .·. ' .·· ,.. ! .· .

. Respondent (A-7S) used tci advise ihe\iaid accused (A-·
· 39) to go to Dubai and the 'said accused a!so expressed his .·
willingness and desire to gci to. Dubai in the month of January, •
1993; He (A~39) got a passport and went to Dubai with Miyaz. E
·.•. After getting ·a visa they left the airport. One person named Ayub
Bhai took them to a building riear Kadar Hotel. There they found
· another perso'n Nasim who took the·m to a flat on the 2nd floor..
Nasim told him there that he wo'uld be going to Pakistan and .
his purpose forthis visit would be explained tater. ... . · . F.
.·'·~. . ·: ~.:' > ~·· -; _ ; . :, . .,-._· ... , . ': ·I.}·,·.·--
;'. · : , .• 7. PrakashKhanvilkar.(PW-513), deposed about the.·
.··• ·:recovery of handgrenades. from Mohme'd Jabir Abdul Latif
·~ · Mansoor (A-93). However, he does not make any reference so
· · ·'tar as the respondent Fazal Rehman Abdul Khan (A-76) is G
·concerned. ., ! . · · · ·
f . '! ~ - • . .

8. The Designated.Court after appreciating the entire
evidence came to the ccinclusiori thatthere was nothing on
record to show that the respondent though facilitated 'sending ·
H
260 SUPREME COURT REPORTS (2013] 16 S.C.R.

A Firoz @ Akram Amani Malik (A-39) to Dubai, had any
knowledge of the purpose of going to Dubai or Pakistan for the
simple reason that Firoz @ Akram Amani Malik (A-39) himself
disclosed that he was told in Dubai that he would go to Pakistan
and the purpose for going there would be explained to him later
B on. The confessional statement of A-39 did not reveal the
involvement of the respondent in persuading A-39 to undergo
weapons' training in Pakistan.

9. This Court has laid down parameters for interference
against the order of acquittal time and again. The appellate
C court should not ordinarily set aside a judgment of acquittal in
a case where two views are possible, though the view of the
appellate court may be the more probable one. While dealing
with a judgment of acquittal, the appellate court has to consider
the entire evidence on record, so as to arrive at a finding as to
D whether the views of the trial court were perverse or otherwise
unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial court had failed
to take into consideration admissible evidence and/or had
taken into consideration the evidence brought on record
E contrary to law. Similarly, wrong placing of burden of proof may
also be a subject-matter of scrutiny by the appellate court. In
exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the
appellate court can interfere with the order of acquittal. The
F appellate court should bear in mind the presumption of
innocence of the accused and further that the trial court's
acquittal bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible should be
avoided, unless there are good reasons for interference. The
G findings of fact recorded by a court can be held to be perverse
if the findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration irrelevanU
inadmissible material. The finding may also be said to be
perverse if it is "against the weight of evidence", or if the finding
H
STATE OF MAHARASHTRA v. FAZAI,. REHMAN 261
ABDUL [DR. B.S. CHAUHAN, J.]

so outrageously defies logic as to suffer from the vice of A
irrationality.

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

CRIMINAL APPEAL NO. 409 OF 201.1

State of Maharashtra ... Appellant c
Versus

Manjoor Qureshi & Ors. . .. Respondents

11. This criminal appeal has been preferred against the D
impugned judgment and order dated 2.8.2007 passed by a
Special Judge of the Designated Court under the TADA in
Bombay Blast Case No. 1/93, acquitting the .respondents of all
the charges. The respondents had been charged in addition
to the common charge of conspiracy under Section 3(3) TADA E
and Section 1208 IPC, read with the other provisions. They
were charged with knowingly abetting and facilitating the
commission of terrorist acts and acts preparatory to terrorist
acts as they had agreed to undergo weapons' training in
Pakistan in handling of arms and ammunition and explosives
F
for committing terrorist acts and for that purpose visited Oubai
but could not go to Pakistan as arrangement for training there
could not be made. They attended the conspiratorial meeting
at Dubai alongwith conspirators to plan the commission of
terrorist acts.
G
12. Mohmed Iqbal Ibrahim S/o Shaikh Ibrahim (A-127) has
died. Thus, this appeal stood abated qua him.

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

•
262 SUPREME COURT REPORTS [2013] 16 S.C.R.

A Hence, this appeal.

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

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

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

17. Confession of Shaikh Kasam @ Babulal Ismail
F Shaikh (A-109):

His confession revealed that he was working as an Office
Boy in the construction company of ljaz Khan in 1992. The said
office was closed after riots in Bombay in December 1992.
G Some persons namely Munna, Karimullah, Shehjada used to
come to the said construction company of ljaz and thus the
accused developed acquaintance with them. ljaz used to travel
between Bombay and Dubai. On 12.1.1993, Mr. Ethesham (A-
58) informed him that ljaz had come from Dubai and wanted
H to meet the respondent (A-109). The accused met ljaz Khan at
·.STATE OF MAHARASHTRA v. FAZAL REHMAN 263
ABDUL [DR. B.S. CHAUHAN, J.]
'···
the house of Haji Yakub in presence of Anwar. ljaz told them A
that in case something wrong happens to them they can talk
to him over. the telephone. Subsequently, they left leaving
Munna and Anwar there. Yakub (AA) later told him that riots
were increasing arid he would take them out of India for training
arid using revolvers for saving themselves from the riots. 8
The respondent (A-109) brought his passport from his house
and delivered the same to Haji Yakub. Subsequently, the
respondent (A-109) went to Dubai alongwith Murad, Ethesham,
Shakil, Shahnawaz on 14,2.1993.

Yakub Haji came to meet them and said that training could c
not be given this time, and it would be done next time. They
remained for 15 days in Dubai and their visa expired. They then
came back to Bombay .. Before going to Dubai, Yakub asked
them to take an oath by placing their hands on the Quran that
whatever they are doing, it was for the sake of Islam and they D
would not fight with each other and would not divulge their talks
to others.

18. Confession of Sultan·E-Rome Sardar Ali Gui CA-
114): E
He was working as a driver with a Marwari at Walkeshwar.
After the demolition of Babri Masjid he lost his job because his
employer was afraid of him as he was a Muslim. The accused
(A-114) wanted to go to Saudi Arabia for search of work.
Therefore, he got his passport ready. In the month of January, F
1993, he met Qamar Khan. ljaz Khan and Ethesham (A~58)
talked with them for 5-10 minutes. Then ljaz told liim that he had
to go to Ethesham as and when he was called and he would
be paid Rs.1,000/-, a pair of clothes and shoes. Ethesham
would train him in working a revolver. G

On 14.2.1993, he wentto Dubaialongvvith the others and
stayed there. for 14 days without any work/training and came
back to India. H~ further disclosed,that they were not given any
. . . training or any lectures (Taqreer) in Dubai. .H
264 SUPREME COURT REPORTS [~013) 16 S.C.R.

A 19. Confession of Abdul Aziz Abdul Kader (A-126):

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

E 20. Confession of Mohd. Igbal Ibrahim (A-127):

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

G 21. Confession of Murad Ibrahim Khan (A-130):

He corroborated the version given by other co-accused in
the confessional statement that he had gone to Dubai. He further
revealed that one day when they were in Dubai, Shakil told him
that he would go to Pakistan for weapon training but the
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 265
ABDUL [DR. B.S. CHAUHAN, J.]
arrangement had not yet been finalized. After a few days they A
came to know that they had been taken for weapon training but
arrangements could not be made anrl they had to return to
Bombay and on expiry of their visa they came back.

22. Confessional statement of Shaikh Mohmed B
Ethesham (A-58):

He disclosed that he was a close associate of Yeda Yakub
and was involved in all kinds of smuggling activities. He
revealed about the smuggling of arms and said that on 7.2.1993
when he was at the place of Hazi Yakub @ Yeda Yakub, and C
the latter informed him, Akbar, Babula! and Shahnawaz that
Muslims had suffered a considerable loss in the riots and that
they had to go to Dubai for training of arms and ammunition to
protect themselves. He, Shahnawaz, and Babulal were ready
to go to Dubai. Thus, they had gone to Dubai but came back D
without having any training.

23. Confession of Shahnawaz Khan (A-128):

His confessional statement revealed that he had gone to
Dubai alongwith other co-accused. He came to know after E
going to Dubai that they were going for arms' training to be held
in Pakistan. However, due to some reason arrangements could
not be made for training. Thus, he came to Bombay alongwith
other co-accused namely Iqbal, Etheshem, Babula! and Shahid
on 1.3.1993 and the remaining persons reached later on. F

24. The Designated Court after appreciating the entire
evidence has drawn a conclusion that the respondents may be
under the impression that they were being sent there for training
of arms so that it can be used in self defence and they came G
to know only ~11hen they were in Dubai that they were being sent
for training to Pakistan. However, the training could not be
finalized/arranged and they came back to Bombay. Therefore,
the learned Designated Court had drawn the inference that as
H
266 SUPREME COURT REPORTS [2013) 16 S.C.R.

A they did not have knowledge that they were going to Pakistan
for training in handling of arms they could not be held guilty.

25. The parameters laid down by this Court in entertaining
the appeal against the order of acquittal have to be applied.
B 26. We have gone through the entire record and we are
of the view that none of the respondents was aware of the
intention of the conspirators to send the respondents to
Pakistan for training to deal with the arms and ammunition
rather they had been taken away to Dubai on false pretext and
C had been misguided. Thus, we fully agree with the inference
drawn and conclusion reached by the Desig11ated Court. We
find no reason to interfere with the same. The appeal lacks
_merit and is accordingly dismissed.

D CRIMINAL APPEAL NOS. 601 OF 2011

State of Maharashtra through CBI ... Appellant

Versus

E Krishna Sadanand Mokal & Ors. . .. Respondents

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

28. Facts and circumstances giving rise to this appeal are
that all the respondents had been working as police constables
in the Police Department of Bombay and at the relevant time,
G i.e., January 1993 were posted as constables at Police Station,
Shrivardhan. After the Bombay blast on 12.3.1993, they had
been charged for conspiracy in general as well as under
Section 3(3) TADA and other charges for assisting and
facilitating the accused persons to smuggle and transport the
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 267
ABDUL [DR. B.S. CHAUHAN, J.]
contraband articles, i.e., arms and ammunition and permitting A
the said goods to be taken further in lieu of bribe.

The case against the said res~.)ndents had been that on
8th/9th of January, 1993, the arms, ammunition and explosives
were smuggled in India and after the landing at Dighi Jetty when
B
the contraband were being transported to Bombay in trucks,
the said trucks were intercepted by the police of Shrivardhan
Police Station headed by Inspector. Patil (A-116). The police
checked those vehicles for 10-15 minutes and permitted them
to go after completing a detailed bargain with the conspirators/
accused and reaching the settlement of the huge amount of C
Rs.7,00,000/- as a bribe. The accused did not have cash thus,
they had given 5 silver ingots as security which were
subsequently returned by the police officials to the accused
persons after the negotiated amount was paid. The
respondents/constables were also put to trial alongwith other D
co-accused (police officials) but they have been acquitted only
on the ground that there was no iota of evidence to show that
the respondents herein were also members of the Shrivardhan
Police Station which had intercepted those trucks.
E
Hence, this appeal.

29. Mr. Mukul Gupta, learned senior counsel appearing for
the appellant-State has submitted that the respondents were
police constables posted at Police Station Shrivardhan and
therefore, they were also the members of the party which F
intercepted the trucks carrying the contraband. The learned
Designated Court failed to appreciate the evidence on record
and has wrongly acquitted the respondents of the charges
leveled against them.
G
30. Ms. Farhana Shah, learned counsel appearing for the
respondents has submitted that it is nobody's case that all the
police force posted at Shrivardhan Police Station had gone to
check/intercept the trucks carrying the contraband. In the instant
case, there is nothing on record to show that either of the H
268 SUPREME COURT REPORTS [2013] 16 S.C.R.

A respondents was a member of the party which intercepted the
trucks carrying the contraband. Thus, the appeal is liable to be
dismissed.

31. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
B
32. In the confession of Mohmed Kasam Lajpuria (A-136)
recorded by Superintendent of Police, CBI at New Delhi Camp,
Mumbai, he disclosed that he was a close associate of Tiger
Memon (AA) etc. and had been indulged in various criminal
C activities including smuggling. He had been participating in the
landings and facilitating the transportation of the contraband
and smuggled goods. In January, 1993, he planned a landing
alongwith Mohd. Dossa, Salim Kutta (A-134), Firoz, Qyum
Sajani, Arif Lambu and the landing took place at Dighi Jetty.
o After getting the contraband goods from the sea to the seashore
the same were loaded in two trucks arranged by Uttam Potdar
(A.-30). The trucks were intercepted by police headed by
Inspector Patil and 6-7 constables from P.S. Shrivardhan.
Inspector Patil (A-116) asked Saleem and Firoz whether they
E were landing and transporting the contraband without making
any payment to the police. Meanwhile, Uttam Potdar (A-30) also
came alongwith one Custom Officer named Gurav (A-82) in a
jeep. Uttam Potdar (A-30) spoke to the police people and it
was decided that a sum of Rs.8,00,000/- should be paid to the
F police. As the accused persons did not have Rs.8,00,000/- in
cash, the police kept 5 silver ingots with them as a security.
Inspector Patil (A-116) asked them to take the silver ingots
back after making the payment in cash.

33. Uttam Potdar (A-30) revealed that he was a very close
G associate of smugglers including Tiger Memon (AA) and
Mechanic Chacha (A-136) etc., and had been participating in
landing and transportation of the contraband. He was called by
Shri R.K. Singh, Assistant Collector (A-102) on 4.12.1993
through a custom sepoy and asked about the earlier day's
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 269
ABDUL (DR. B.S. CHAUHAN, J.]

landing. Shri Gurav, Custom Inspector (A-82) also had contact A
with the said accused (A-30) and after negotiating, it was
decided to settle the issue of money. Accordingly, the matter
was settled and amount was paid to the custom officers. This
accused further revealed the mode of payment per landing to
the Shrivardhan Police Station as well as the custom police. B
He revealed the incident on 9.1.1993 when the trucks were
intercepted by the Shrivardhan Police. The vehicles were
checked by two Hawaldars, named Mali and Muneshwar. He
fully corroborated the statement of Mechanic Chacha (A-136)
that as they had no money to pay to the police, they paid the c
silver ingots as security.

34. Dilip Pansare (PW.97) deposed that he was working
as a mechanic in the State Transport Corporation at
Shrivardhan Depot. He was close associate of Uttam Potdar
(A-30). He accompanied Uttam Potdar (A-30) on 9.1.1993 D
when the vehicles carrying the contraband after landings were
intercepted by Shrivardhan Police Station. He deposed that the
vehicles after interception were thoroughly checked by two
constables. The police team was headed by Inspector Patil (A-
116) and there were 6-7 constables with him. He also gave full E
details of negotiation/settlement of the amount of bribe for
releasing the vehicles and giving 5 silver ingots as security as
they did not have the cash. Thus, he corroborated the statement
of Uttam Potdar (A-30) as well as of Mechanic Chacha (A-136).
F
35. In the ~onfessions of Dawood Phanse (A-14), he has
deposed that he was a landing agent.and was facilitating
transportation of smuggled goods of various smugglers in
partnership with Sharif Abdul Gafoor Parkar (A-17) including
Tiger Memon (AA). This accused (A-14) and Dadabhai (A-17) G
corroborated the version so far as this case is concerned only
to the extent of payment of money to Shrivardhan Police Station
for two landings. Mohd. Salim (A-134) corroborated the case
to the extent of interception of vehicles carrying the contraband
on 9.1.1993 by Shrivardhan Police at Gongdhar Phata. The
H
270 SUPREME COURT REPORTS [2013] 16 S.C.R.

A police team consisted of one Inspector and few constables.

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

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

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

39. In view of the above, we do not see any cogent reason
to interfere with the impugned judgment. The appeal lacks merit
and is, accordingly, dismissed.
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 271
ABDUL [DR. B.S. CHAUHAN, J.]
CRIMINAL APPEAL NO. 404 OF 2011 A

State of Maharashtra through CBI ... Appellant

Versus

Moiddin Abdul Kadar Cheruvattam . . . Respondent B

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

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

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

B. The Special Judge under TADA has discarded all the E
confessional statements on the ground that the officer who
recorded the confessional statement of the respondent and
other co-accused did not fulfill the requirement of law by giving
any warning to the said persons telling (i) that they were not
bound to make a confession and (ii) if made, it could be used F
against them as evidence, and thus acquitted them of all the
charges.

Hence, this appeal.

42. Shri Mukul Gupta, learned senior counsel appearing q
for the appellant has tried to impress upon us that undoubtedly
the warning had not been administered in the first part of any
of the said confessional statements but only after reflection
period, when the said persons again appeared for making their H
respective statements they had been warned properly. If Part I
272 SUPREME COURT REPORTS ·[2013] 16 S.C.R.

A and Part II of their statements are read together, it is evident
that the said accused persons were fully aware that they were
not bound to make the confession and if made, it would be
used against them.

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

44. We have considered the rival submissions made by
learned counsel appearing for the parties and perused the
record.
D 45. Evidence against the respondent (A-48):

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

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

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

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

46. First part of the confessional statement of the
respondent (A-48) recorded on 14.5. 1993, reads as under:

G "My name is M_ohiuddin Abdul Kadar, age 30 years,
occupation Sales Representative, Dubai, Place of
residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed
S.S.C. in the year 1978.

H I myself informed the Inspector of Crime Branch that
STATE OF MAHARASHTRA v. FAZAL REHMAN 273
ABDUL[DR. B.S. CHAUHAN, J.]
I wanted to make the confessional statement voluntarily. I A
was arrested by the Bombay Police on 3.4.93 from my
residence at Dongri in connection with the Bombay bomb
Blast case. For this reason, I wanted to give my
confessional statement.
B
I have been explained about my making the
confessional statement that the confessional statement,
which I am going to make will be used against me.

In this connection, I was given 48 hours. For
reflection, I will be produced on 17.5.93, if I want to make C
the confessional statement."

Sdl-
Sdl-
D
DCP
Accused"

47. Similarly the first part of the confessional statements
of co-accused Ahmed Shah Khan Mubarak Shah @ Salim
Khan Durani @ Salim Tonk (A-20), Aziz Ahmed Mohammed E
Ahmed Shaikh (A-21) and Ismail Abbas Patel (A-80) are very
cryptic. Further, there is no explanation or warning therein as
required by law. Therefore, such confessions are liable to be
discarded.
F
48. This Court in S.N. Dube v. N.B. Bhoir & Ors., (2000)
2 SCC 254 held that the compliance of Section 15 TADA and
Rule 15 of TADA Rules, is mandatory. It is necessary before
making of the confessional statement that the accused must be
warned that confessional statement if made will be used
against him and further that he is not bound to make the same. G

"Writing the certificate an.d making the memorandum are
thus made mandatory to prove that the accused was
explained that he was not bound to make a confession
and that if he made it it could be used against him as H
274 SUPREME COURT REPORTS (2013] 16 S.C.R.

A evidence, that the confession was voluntary and that it
was taken down by the police officer fully and correctly.
These matters are not left to be proved by oral evidence
alone. The requirement of the rule is preparation of
contemporaneous record regarding the manner of
B recording the confession in the presence of the person
making it."

The court further clarified that a confessional statement
would not be adversely affected if the certificate and
C memorandum are mixed or the format so prescribed is not
used by the recording officer.

49. This Court in Lal Singh v. State of Gujarat & Anr.,
(2001) 3 sec 221 held that:

D · "23. In view of the settled legal position, it is not possible
to accept the contention of learned Senior Counsel Mr
Sushi/ Kumar that as the accused were in police custody,
the confessional statements are either inadmissible in
evidence or are not reliable. Custodial interrogation in
such cases is permissible under the law to meet grave
E
situation arising out of terrorism unleashed by terrorist
activities by persons residing within or out$ide the
country. The learned counsel further submitted that in the
present case the guidelines suggested by this Court in
Kartar Singh v. State of Punjab (1994) 3 SCC 569, were
F not followed. In our view, this submission is without any
basis because in the present case confessional
statements were recorded prior to the date of decision in
the said case i.e. before 11-3-1994. Further, despite the
suggestion made by this Court in Kartar Singh case, the
G said guidelines are neither incorporated in the Act nor in
the Rules by Parliament. Therefore, it would be difficult
to accept the contention raised by learned counsel for the
accused that as the said guidelines are not followed,
confessional statements even if admissible in evidence,
H should not be relied upon for convicting the accused.
STATE OF MAHARASHTRA v. FAZAL REHMAN 275
ABDUL [DR. B.S. CHAUHAN, J.]

Further, this Court has not held in Kartar Singh case that A
if suggested guidelines are not followed then
confessional statement would be inadmissible in
evidence. Similar contention was negatived by this I Court
in S.N. Dube (supra), by holding that a police officer
recording the confession under Section 15 is really not 8
bound to follow any other procedure and the rules or the
guidelines framed by the Bombay High Court for
recording the confession by a Magistrate under Section
164 CrPC; the said guidelines do not by themselves
apply to recording of a confession under Section 15 of C
the TADA Act and it is for the court to appreciate the
confessional statement as the substantive piece of
evidence and find out whether it is voluntary and truthful.
Further, by a majority decision in State v. Nalini, (1999)
5 SCC 253, Court negatived the contentions that
confessional statement is not a substantive piece of D
evidence and cannot be used against the co-accused
·unless it is corroborated in material particulars by other
evidence and the confession of one accused cannot
corroborate the confession of another, by holding that to
that extent the provisions of the Evidence Act. including E
Section 30 would not be applicable. The decision in
Nalini (supra) was considered in S.N. Dube (supra). The
Court observed that Section 15 is an important departure
from the ordinary law and must receive that interpretation
which would achieve the object of that provision and not F
frustrate or truncate it and that the correct legal position
is that a confession recorded under Section 15 of the
TADA Act is a substantive piece of evidence and can be
used against a co-accused also."
G
50. In Bharatbhai v. State of Gujarat, (2002) 8 SCC 447,
this Court held: .

''46. In view of the aforesaid discussion, our conclusions
are as follows:
H
276 SUPREME COURT REPORTS [2013] 16 S.C.R.

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

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

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

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

52. In view of the above, we are of the considered opinion
G that the learned Designated Court rightly rejected the
confessional statement made by the respondent and the co-
accused as the first part of these statements has not been
recorded in consonance with the requirement of statutory
provisions.
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 277
ABDUL [DR. B.S. CHAUHAN, J.]

We concur with the view taken by the Special Judge. The A
appeal lacks merit, and is accordingly, dismissed.

CRIMINAL APPEAL N0.405 OF 2011

State of Maharashtra through CBI ... Appellant
B
Versus

Asfaq Kasam Hawaldar . . . Respondent

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

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

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

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

B. That the accused (A-38) transported arms, ammunition
and explosives which took place on 7 .2.1993 which were
smuggled into the country by Mushtaq @ Ibrahim @Tiger Abdul
Razak Memon and his associates for commission of terrorist G
acts in motor truck no. MHT 6745 driven by this accused from
Shekhadi to Wangni Tower.

C. The Special Judge after conclusion of the trial acquitted
the respondent of all the charges.
H
278 SUPREME COURT REPORTS [2013] 16 S.C.R.

A Hence, this appeal.

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

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

58. We have considered the rival submissions made by
learned counsel f9r the parties and perused the record.

59. Confessional statement of Tulsi Ram Dhondu
E Surve (A-62):

He revealed that he was working as a Chowkidar at
Wangni Tower and came in contact with the smugglers and
facilitated their activities many a times for loading and unloading
F the contraband smuggled by them. He (A-62) used to serve
them tea and food. On being asked by Dawood he (A-62) had
agreed to help the smugglers in loading and unloading at the
said tower for consideration. On 9.1.1993 at 8 hrs. in the night
one Maruti car entered the premises of the tower and Sarfaraz
G (A-55), son of Dawood Phanse got down from the Car and
asked him (A-62) to prepare tea. He prepared tea and served
the same to 9-10 persons. Tiger Memon (AA) was also with
them. After having tea they went away and came back at 12
o'Clock in the night with one truck and a tempo, a jeep and a
H Maruti car. Tiger Memon (AA) and his associates Iqbal, Anwar,
STATE OF MAHARASHTRA v. FAZAL REHMAN 279
ABDUL [DR. B.S. CHAUHAN, J.]
Munna, Sharif alighted from the vehicles and then the A
contraband was reloaded from the truck to the tempo. Tiger
Memon (AA) had given his men guns and pistols in their hands
and after reloading the contraband they all went away. On
7.2.1993, he came to know through Sharif that Dawood
Phanse's (A-14) contraband was about to come. The accused s
(A-62) informed his other colleagues at about 9.30 in the night.
He came alongwith More from the tower and waited at the
Kuchha road for them. After sometime a truck, followed by three
jeeps, a rickshaw and two motorcycles came there.
Subsequently, a truck and a jeep carrying some goods also c
came to the tower. The truck carrying the goods was owned
by one Hasan Adhikari, r/o Mhasla and was driven by Asfaq
Kasam Hawaldar (A-38). Alongwith the truck, Dawood
Phanse (A-62), Dadamiya Parkar (A-17), Sharif Adhikari, Abdul
Gharatkar were there in a jeep. Tiger Memon and his above- D
mentioned associates carrying guns and pistols got down from
another jeep. Sarfaraz Phanse (A-55), Khalil Nazir and Sajjad
Nazir kept the watch during this period. After transferring the
goods from one vehicle to another all vehicles left from there.
The wooden packings of the goods were burnt in the ditch near E
the tower.

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

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

H
280 SUPREME COURT REPORTS [2013) 16 S.C.R.

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

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

CRIMINAL APPEAL N0.394 OF 2011

State of Maharashtra ... Appellant

Versus
c
Ismail Abbas Patel . . . Respondent

64. This appeal has been preferred against the final
judgment and order dated 2.8.2007 passed by the Special
o Judge of the Designated Court under the TADA in Bombay
Blast Case No.1 of 1993, acquitting the respondent charged
under Section 3(3) and Section 1208 IPC and other provisions.

65. Facts and circumstances giving rise to this appeal are
that:
E
A. In addition to main charge of conspiracy, the
respondent was charged as he participated in the conspiratorial
meeting at Dubai, and made the arrangement and financed the
trip for his co-accused Shaikh Aziz to Dubai. Thus, he was
F charged under Section 3(3) TADA and various provi'sions of
IPC.

B. The Designated Court after conclusion of the trial
acquitted the respondent of all the charges.

G Hence, this appeal.

66. Shri Mukul Gupta, learned senior counsel appearing
for the State has submitted that there was ample evidence
against the respondent of his involvement in the aforesaid
H offence. However, the learned Designated Court has wrongly
STATE OF MAHARASHTRA v. FAZAL REHMAN 281
ABDUL [DR. 8.S. CHAUHAN, J.]
acquitted him. Thus, the appeal deserves to be allowed. A

67. Per contra, learned counsel appearing for the
respondent has opposed the appeal contending that the
findings of fact recorded by the court below are based on
evidence and by no means, the same can be held to· be 8
perverse. Thus, no interference is called for.

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

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

70. The confession of the respondent and other co- D
accused i.e. A-20 and A-21 has been discarded by the
Designated Court for the reason that it had not been recorded
strictly in accordance with the provisions of Section 15 TADA
and Rule 15 of TADA Rules, 1987. The confessional statement
of these accused had been recorded in two parts and there
had been some intervening period for re-consideration. While E
recording the first part of the confession, the officer recording
the statement did not inform the accused that he was not bound
to make the confession and further that in case he makes it, it
would be used against him as evidence.
F
71. In the first part of the confessional statement of the
respondent as his particulars have been described and further
stated that he was giving his confession of his own accord. It
was further recorded that the accused had been given 48 hours
to reconsider. G
72. Even in the second part of the confession which was
recorded on 4.5.1993 the respondent had not been warned that
he was not bound to make the confession. Though he was
asked as to whether he was making the statement under any
H

-
282 SUPREME COURT REPORTS [2013] 16 S.C.R.

A pressure and whether he was willing to make the confession
but even then he was not warned that he was not bound to make
the statement. The certificate issued by the officer regarding
the confessional statement mentions the belief of the recording
officer that the statement was signed of his own will.
B
73. Exactly the same is the position so far as the
confessional statements of co-accused Ahmed Shah Khan
Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-21)
are concerned.

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

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

CRIMINAL APPEAL N0.1033 OF 2012

State of Maharashtra ... Appellant
F
Versus

Rukhsana Mohd. Shafi Zariwala . . . Respondent

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

H
STATE OF MAHARASHTRA v. FAZAL REHMAN 283
ABDUL [DR. B:S. CHAUHAN, J.]
77. Facts and circumstances giving rise to this appeal are A
that:

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

Hence, this appeal.

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

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

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

81. Confessional statement of Parvez Nazir Ahmed Shaikh
(A-12) revealed about the incident of transportation of the H
284 SUPREME COURT REPORTS [2013] 16 S.C.R.

A contraband arms and ammunition from Jogeshwari to
Musafirkhana. He disclosed that he was a close associate of
lmtiyaz and Tiger Memon. He knew Shafi Zariwala, the husband
of the respondent who was working as driver of Tiger Memon
very well. He revealed his participation on various times in
s landing and transportation. On 11.3.1993 at 12 noon he went
to the house of Tiger Memon. At that time Asgar was also
present there. Tiger Memon (AA) gave him two suit cases, two
handbags Uust like neck hanging bags) and one big suit case
and asked him to go to Musafirkhana. He and Asgar took all
c the goods and kept the same in room no.17 of Musafirkhana
and their curiosity got the best of them and they opened the
bags and found that one bag contained AK-56 rifles and the
other bag contained some handgrenades and pen shaped
pipes. They closed the bag and went to Shafi's house and from
there went to Mahim. After some time, Shafi also came by jeep
0
and took him (A-12) to his sister-in-law's house at Jogeshwari.
Shafi's wife (respondent herein) was also there. Shafi kept 2
AK-56 rifles and some handgrenades in one bag and in the
bag he kept some pistols there. The accused (A-12), Shafi, hia
wife Rukhsana (respondent) and his sister-in-law all left for
E Mahim at about 8.30 P.M. Shafi dropped them at Mahim and
told them to go to Musafirkhana by a taxi and keep those bags
in room no.17 and after that came to Shafi's house. He
explained that the goods had been kept at Musafirkhana on the
instruction of Tiger Memon (AA). He revealed that after the
F Bombay Blast on 12.3.1993 he had shifted the contraband from
room nos.16 and 17 to the lavatory and further how the recovery
was made.

82. So far as the incident of transporting the goods from
G Jogeshwari to Musafirkhana is concerned, Ashrafur Rehman
Azimulla Shaikh (A~71) revealed that he had booked two rooms
i.e., Room Nos.16 and 17 on the first floor in Musafir Khana.
On the intervening night of 11.3.1993 and 12.3.1993 at about 1
1.00 a.m. Tiger Memon (AA) called him on telephone and
H asked him to reach Musafirkhana. Tiger Memon met him there.
STATE OF MAHARASHTRA v. FAZAL REHMAN 285
ABDUL[DR. S.S. CHAUHAN, J.]

There were three big suit cases and one small suit case, two A
hand bags, three or four plastic bags containing cartridges,
seven machine guns and seven small pistols etc.

He has given some reference to this incident, however, his
statement was discarded by the Designated Court in view of
8
the fact that the officer who recorded his statement did not meet
the statutory requirement of giving him the statutory warning that
he was not.bound to make his confession and if made it would
be used against him.

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

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

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

86. The only allegation against the respondent had been
that she had accompanied her hushand (AA) while he carrie.d
the arms, ammunition and explosives. Further, there is nothing H
286 SUPREME COURT REPORTS [2013] 16 S.C.R.

A on record to show that she had any knowledge of such arms,
and the purpose for which the same had been brought. Further,
the sister-in-law of the respondent was neither made the
accused nor a witness. Her husband is still absconding. In such
a fact-situation, the findings recorded by the learned
B Designated Court do not warrant any interference. The appeal
lacks merit, and is accordingly dismissed.

CRIMINAL APPEAL NO. 594 OF 2011

The State of Maharashtra ... Appellant
c
Versus

Sayyed Ismail Sayyed Ali Kadri .. . Respondent

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

E 88. Facts and circumstances giving rise to this appeal are
that:

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

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

Hence, this appeal.
H
'
STATE OF MAHARASHTRA v. FAZAL REHMAN 287
ABDUL [DR. B.S. CHAUHAN, J.]
90. Mr. Mukul Gupta, learned senior counsel appearing for A
the appellant has submitted that the respondent being father of
Shabir Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri
(A-133) (dead after being convicted by the Special Judge) was
a party to conspiracy and of the plan of committing terrorist acts
and was fully aware as the contraband had been concealed in 8
his house with his consent and connivance. He had also
participated when the contraband arms and ammunition were
shifted from his house ·to mango grove of Abdul Razak
Subedar and concealed there by digging the earth. He was
involved in disposal of the said articles in the creek. The Special C
Judge has wrongly given the benefit of doubt to him. Thus, the
appeal deserves to be allowed.

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

92. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
F
Respondent accused (A-105) did not make any
confession.

Confession of Faki Ali Faki Ahmed Subedar (A-74) :

93. The confessional statement of Faki Ali Faki Ahmed G
Subedar (A-74) revealed that Shabir had approached him in
the 2nd/3rd week of March, 1993 for help as Feroz Khan had
come from Bombay and told him that after the riots the situation
was very bad in Bombay and some boxes containing fire arms H
288 SUPREME COURT REPORTS [2013] 16 S.C.R.

A and bags containing cartridges were to be dumped in the creek.
He asked for help taking the said articles in the boat. The
acccused (A-74) agreed. Shabir, his brother Jamir (A-133,
since dead), Abdulla Surti and Gambas (A-81) took out three
wooden boxes and 6 green coloured bags kept under the straw
B and loaded them in a boat lying near the shore of the creek
and went in the water towards Kandalwada creek. The next day,
Shabir came and told him that certain arms, ammunition and
cartridges were to be hidden in the mango grove and he wanted
the said accused to help him. The accused went along with him.
c At that time, Gambas, Abdulla Surti, Jamir and Jamir's father
were there in his house. After reaching there, they took out 13
coloured bags containing cartridges and guns wrapped in
plastic paper and kept there in three bundles from underneath
the straw. These articles were put in the pit prepared earlier in
the mango orchard of Abdulla Razak Subedar who was livirig
0
in Nairobi at the time and the pit was covered with soil.

After about a month, he was interrogated by the police,
wherein he disclosed about the said 13 green .coloured ba'gs
containing cartridges and three bundles containing guns had
E been hidden in the mango orchard of Abdul Razak Subedar.
The hidden material was recovered from the said mango grove
and it contained 4 country made guns, 12 foreign made guns,
36 magazines and 26 cartridges.

F Confession of Jananrdan Pandurang Gambas (A-81):

94. He disclosed that he was not able to maintain a good
business so some smugglers persuaded him to purchase one
new boat and indulge in transportation of smuggled goods
particularly silver and gold through the sea. Shabir used to give
G him Rs.1000/- for such activities. On 2.12.1993, he was asked
by Shabir Kadri to come to the Jetty at around 9.00 p.m., for
unlo'ading silver and gold. So he participated in the said landing
and brought the goods to the sea shore with the help of Mohd.
Chacha (A-136) and Uttam Potdar (A-30) and for that many
H persons had helped and Uttam Potdar (A-30) gave Rs. 5,000/
STATE OF MAHARASHTRA v. FAZAL REHMAN 289
ABDUL [DR. B.S. CHAUHAN, J.]
- to each and every person for their assistance. After the A
Bombay Blast, one day Jamir (A-133, since dead) and his
brother Shabir called him (A-81) at Agarwada and he was told
that goods unloaded on the last occasion contained guns and
explosive substances i.e. "gola barood" and had to be hidden
beneath the ground and he was directed to remain present in B
the mango grove after dinner and dig the pit for hiding the
contraband. Accordingly, a pit was prepared and three boxes
each containing 4 rifles wrapped in gunny bags and 26 boxes
of thermal packing were buried in the ground. He was paid
Rs.1,000/- for that job. Shabir threatened him not to disclose c
the fact to anyone. When these articles were buried, Shabir
Jamir, Faki Ali Faki Chacha, Abdulla Surti, Sayyed Ismail Kadri,
father of Shabir were also present.

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

96. After appreciating the aforesaid evidence the Special
Judge came to the conclusion that the respondent (A-105) had
not made any confession. So far as the confession of Faki Ali E
Faki Chacha (A-74) is concerned, it contained reference
regarding the presence of one father, but the same does not
specifically reveal A-105 being person while the goods were
being concealed after taking them from the house of the ·
respondent-accused to the mango grove. The same conclusion F
was drawn regarding the confession of Jananrdan Pandurang
Gambas (A-81). He (A-81) made a passing remark revealing
the presence of respondent A-105 at the relevant time. Still the
same specifically failed to depict any act committed by him in
relation with the contraband goods. More so, there seems to
be some contradiction and variance in the sequence of events G
as given in the aforesaid confessions. Thus,jtwas difficult to
accept that the said material in confession of the co-accused
can be accepted without there being any independent
corroboration, though the corroboration was required only on
material points and not on each and every point. The H
290 SUPREME COURT REPORTS [2013] 16 S.C.R.

A confessional statement of the aforesaid accused particularly
Faki Ali Faki Chacha (A-74) and Jananrdan Pandurang
Gambas (A-81) cannot be said to be cogent enough for
establishing involvement of the respondent (A-105) in
commission of the acts amounting to a criminal offence
B required to be strictly proved.

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

98. In the instant case, there is no evidence on record to
C show that the respondent had been involved in the crime in any
manner. If his sons had indulged in the offence, his mere
presence in his house, where the contraband had been hidden,
would not make the respondent responsible.

D We do not find any cogent reason to interfere with the
impugned judgment and order. The appeal lacks merit and is
accordingly dismissed.

CRIMINAL APPEAL NO. 402 of 2011

E State of Maharashtra .... Appellant

Versus

Mohd. Ahmed Mansoor . . . Respondent

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

101. After conclusion of the trial, the Designated Court
acquitted the respondent of all the charges.
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 291
ABDUL [DR. B.S. CHAUHAN, J.]
Hence, this 'appeal. A

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

103. Ms. Farhana Shah, learned counsel appearing for the C
respondent has submitted that there is no iota of evidence
showing involvement of the respondent in any overt act or
conspiracy. The well reasoned judgment of the Designated
Court does not warrant interference by this court.
D
104. We have considered the rival submissions made by
learned counsel for the parties and perused the record.

The respondent did not make any confessional statement.

Evidence against the respondent : E
Confessional statement of Mohd. Hanif Mohd Usman
Shaikh (A-92):

105. The accused {A-92) revealed that he got a passport
in the year 1987 and visited Dubai and other gulf countries F
several times prior to Bombay Blast. During the riots in Bombay
in December, 1992 and January, 1993, he was working as the
driver of Salim Kurla. Salim Kurla asked A-92 to go to Dubai.
A-92 agreed and he was paid Rs. 1000/- in cash and Salim
Kurla agreed to arrange his ticket etc. Ticket of A-92 to Dubai G
was arranged by Salim Kurla as was done by him for Sayeed,
Usman and Ibrahim. All of them reached Dubai. There two
persons named Ahmed and Farooq were waiting for them
outside the airport. From there, A-92 and other accused were
taken to Delhi Darbar Hotel in two cars. On the next day, H
292 SUPREME COURT REPORTS [2013] 16 S.C.R.

A Ahmed and Farooq came to the hotel and told them that they
would go to Pakistan for work. They were also given some
money. After 4 days, Salim, Ahmed and Farooq came to the
hotel. Salim told them that their air tickets for going to Pakistan
were ready. Thereafter, Salim and Ahmed called them and
9 stated that great injustice had been done to the Muslim
community in Bombay riots in December 1992 and January
1993. Thus, in order to ensure that it was not repeated,
they should be given training of handling of arms/guns
and ammunition. They should be ready to go to Pakistan the
c next day. Salim, Ahmed and Farooq left the hotel. Next day
Ahmed and Farooq came to the hotel and delivered their
tickets and passports. After some time, Salim also came. The
accused (A-92) went with Usman, Ahmed and alongwith others
to Dubai airport. On the way, Ahmed gave one yellow coloured
D cap to Usman (PW.2) and told him to wear the same after
reaching Pakistan so that the person who was coming to
receive them, would be able to identify them. In Pakistan, they
were received at the airport by one Altaf and taken to the training
camp in a jungle. During their training, a person named Ahmed
came there and enquired about training. After completion of the
E training, two pathans took them to unknown bungalow in a jeep.
Thereafter, they came to Karachi and then Dubai and stayed
in Delhi Darbar Hotel.

Confessional Statement of Shaikh Ibrahim Shaikh
F Hussain Shaink CA-108):

106. He revealed that he was well acquainted with one
Ismail and after the riots in Bombay in December 1992 and
January 1993, he suffered a loss in business and used to stay
G at home. On 16.1.1993, Ismail came to his house and asked
him if he had a passport and whether he was willing to go to
Dubai. Accused (A-108) told Ismail that he had no money.
Ismail told him not to worry about money, he would make the
necessary payments. So, he got ready to go to Dubai. A-108
left for Dubai alongwith co-accused and reached Dubai where
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 293
ABDUL [DR. B.S. CHAUHAN, J.]
two persons named Ahmed and Farooq (whose names were A
disclosed by Salim) were waiting outside the airport. Ahmed
told them next day that they had to go to Pakistan for work and
Ahmed gave them each 200 Dinars for their expenses.
Ahmed and Farooq had been meeting them and facilitated
their stay and subsequent transit to Pakistan. Ahmed gave one B
yellow coloured cap to Usman (PW.2) and told him to wear it
in Pakistan so that they would be identified by the person who
would come to receive them at the airport. After reaching
Pakistan, Usman (PW.2) wore Yellow coloured cap. One
person came to receive them, Usman (PW.2) told him that c
Ahmed and Farooq had sent them from Dubai. They were
taken outside the airport and taken to training camp in a jungle.
He (A-108) got injured during the training so he was taken to
hospital at Islamabad for treatment. He stayed in the hospital
for six days. He was brought to Karachi airport from Islamabad D
by air by one Yusuf and one unknown person and then he
.reached Dubai. Yusuf took him to the house of Anees Bhai.
Ahmed was also present there. The next day the servant of
Ahmed took him to Delhi Darbar Hotel where he met other
persons. From there, they came back to Bombay.
,E
Confessional statement of Usman Man khan Shaikh (A-
115):

107. He revealed like other co-accused that he had also
gone to Dubai and two persons named Ahmed and Farooq F
were already waiting for them outside the airport. They had
facilitated their stay in Dubai and transit to Pakistan. All
arrangements were made by them. When the accused came
back after having training in Pakistan Ahmed had given him
200 Dinars for expenses. A-115 revealed that the said accused G
persons got training in Pakistan. During their training, Ahmed
came and enquired about their training. After completion of their
training, they came back to Dubai and went to Delhi Darbar
Hotel and then on 15.2.1993, Ahmed and Yusuf took them to
Dubai Airport and then arrived at Bombay.
H
294 SUPREME COURT REPORTS [2013] 16 S.C.R.

A 108. In his statement, Usman Ahmed Jan Khan (PW-2)
made reference to Ahmed without giving his full name and
address or any other particular, which may be a decisive factor
to determine as to whether the respondent was the real person
to whom the witness had been talking about.
8
109. The Special Judge has given benefit of doubt to the
respondent (A-132) reaching the conclusion that the
prosecution failed to disclose the correct identity of the accused.
None of the witness/accused had referred to his full name or
address even once. In such a fact-situation, the Special Judge
C has rightly given him the benefit of doubt.

110. In the facts and circumstances of the case, as the
prosecution failed to fix the identity of the accused who had
gone to Pakistan for training, we are of the opinion that the
D respondent has rightly been given the benefit of doubt.

111. The parameters laid down by this Court in
entertaining the appeal against the order of acquittal have to
be applied.
E 112. The appeal lacks merit, and the judgment and order
of acquittal does not deserve interference. The appeal is
dismissed accordingly.

CRIMINAL APPEAL NO. 1022 OF 2012
F
State of Maharashtra ... Appellant

Versus

Rashid Umar Alwar ... Respondent
G
113. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007, passed by the
Special Judge of the Designated Court under the TADA in the
Bombay Blast Case No. 1/93, by which the respondent had
been convicted under Section 111 read with Section 135 of the
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 295
ABDUL [DR. B.S. CHAUHAN, J.]
Customs Act, 1962, and awarded the sentence of 3 years A
alongwith a fine of Rs.25,000/-. However, he had been acquitted
of the general charge of conspiracy and second charge under
Section 3(3) TADA.

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

A. In addition to the main charge of conspiracy, the
respondent (A-27) was also charged for participating in the
landing and transportation of the arms, ammunition and
explosives, using his motor truck bearing registration No. MWT- C
6683, on 3.2.1993 from Shekhadi to Wangni Tower. About 59
bags of ROX explosives were taken by him in his truck
alongwith other co-accused to the field of Tulsi Ram Dhondu
Surve where it was buried and concealed.
D
B. After holding the trial, the respondent had been
acquitted of the charge of conspiracy, however, he has been
convicted for the other charges as mentioned hereinabove.

Hence, this appeal.
E
115. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that there was sufficient
evidence against the respondent (A-27), so far as the
participation and transportation of the explosives used in the
offences is concerned. Therefore, the acquittal under Section F
3(3) TADA and of the charge of general conspiracy is
unwarranted. The evidence on record makes it evident that he
had knowledge that contrabands were not silver but arms and
ammunition. Therefore, the appeal deserves to be allowed and
the respondent (A-27) should be convicted for the offences G
punishable under the aforesaid provisions.

116. Shri Mushtaq Ahmad, learned counsel appearing for
the respondent (A-27) has submitted that after appreciating the
evidence on record, the Designated Court reached the
H
296 SUPREME COURT REPORTS [2013) 16 S.C.R.

A conclusion after that even if the respondent (A-27) had
participated in landing and transportation of contraband, he had
no knowledge about its contents. In absence of any knowledge
that the contraband contained arms and ammunition, conviction
under the provisions of TADA is not permissible. The
respondent (A-27) has already served 3 years imprisonment,
8
and paid a fine of Rs.25,000/-. Thus, no further consideration
of the appeal is required. Therefore, the appeal is liable to be
dismissed.

t17. We have considered the rival submissions made by
C learned counsel for the µarties and perused the record.

Evidence against him:

Confession of the Respondent Rashid Umar Alware (A-
27):
D
118. In his own confession, Rashid Umar Alware (A-27)
has admitted that he owned a truck bearing registration
No.MWT-6683 and he drove himself. !n the first week of
February, 1993 he had participated in the landing and
E transportation of silver at the behest of other co-accused by
driving his truck to Shekhadi village and bringing the
contraband. He disclosed that his truck was loaded with
contraband and when the truck was moving it was followed by
a jeep and they reached Wangni Tower. There two persons took
F him aside and was asked to wait at one place. After unloading
some of the goods he drove the truck away from the Tower. The
remaining goods were unloaded and the same was kept in one
pit in the land. At that time he was kept at a distance from where
unloading of the goods could not be seen. He was paid a sum
G of Rs.20,000/- for transportation etc.
Confession of Dawood @Dawood Takllya Mohammed
Phanse @ Phanasmiyan (A-14):

119. He disclosed that he was a very close associate of
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 297
ABDUL [DR. S.S. CHAUHAN, J.]

Tiger Memon (AA) and used to participate in landing and A
transportation of smuggled goods/contraband. In the first week
of February, 1993, five-seven persons with him had gone for
landing at Shekhadi. As per the pre-arrangement, Rashid Umar
Alware (A-27) was called from Borli with his truck and 35-40
persons were arranged for loading and unloading the goods. B
The goods were brought from the trawlers to the shore by Tiger
Memon, (AA) and other persons armed with guns and were
loaded in the truck.

Confession of Muzamil Umar Kadri (A-25):
c
120. He (A-25) disclosed that he reached Borli village on
3.2.1993 and asked Rashid Umar Alware (A-27) to accompany
him with his truck. He came driving his truck at the place of
landing. Other accused persons were there. They reached
Shekhadi and the goods were loaded in the truck. D

Confession of Sajjad Alam @ Igbal Abdul Hakim Nazir CA-
61 ):

121. He corroborated the version given by other co-
accused that on 3.2.1993 the landing took place and the E
contraband was transported by the truck of the respondent (A-
27).

He also disclosed that most of the persons were not
permitted to see when the loading and unloading took F
place at Wangni Tower.

Confession of Tulsi Ram Dhondu Surve CA-62):

122. He (A-62) has corroborated the version given by
other co-accused disclosing that the said truck used for G
transportation belonged to Rashid Umar Alware (A-27) from
Borli and he himself was driving the truck. The goods brought
in the Wangni Tower contained guns and pistols. The wori of
loading of the goods from the truck in a jeep and tempo started
after bringing the same by truck from Shekhadi. Out of the H
298 SUPREME COURT REPORTS [2013] 16 S.C.R.

A aforesaid goods 59 bags remained. The said bags were taken
by the truck of the respondent (A-27) in the field and were
unloaded on the steps of the house with the help of the labourers
on the field and the same were covered with the soil. When he
asked Dawood whether those were the silver bricks, he was
B told that it was "Kala Sabun". Tiger Memon (AA) intimidated
him and warned not to tell to anyone about the same. Tiger
Memon took one bundle from the said bundles and saw the
same and ascertained as to whether the goods therein were
proper or not and threw the plastic bag at that place and
c packed the same in another bundle and took the same with him.
It was learnt later that one truck had arrived on 4.2.1993 in the
evening and carried away the remaining 59 bags.

123. The Designated Court after appreciating the entire
evidence on record came to the following conclusion:
D
"Now with regard to submission canvassed on behalf of
A-27 and after carefully considering the material in his
confession and the same having shown the manner in
which he had acted in episode it is crystal clear that he
E was full aware that he was involved in an illegal operation.
Having regard to same and so also having regard to the
amount received by him it will be difficult to perceive that
he was not aware that he was effecting any illegal
operation. Now considering the acts committed by him
F clearly denotes of himself having transported the goods
brought into the country at a p lace which was not a port
and all the facts regarding the said operation the same
are sufficient to denote of the same being a smuggling
operation. However, there being no express evidence
of A-27 having seen the nature of goods transported
G
and the evidence having indicated that he cannot be
said to be a person present at Wangni tower when
the exchange of material from vehicles to another
vehicle was effected for concealing the same in cavity
and the person from Bombay being only present along
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 299
ABDUL [DR. B.S. CHAUHAN, J.]

with Tiger Memon and A-14 & A-17 his liability would be A
restricted for commission of offences under Customs Act
he would be required to be held guilty only for
commission of offence under Section 111 rlw Section
135(b) of Customs Act and would be required to be held
not guifty for commission of other offences including that B
of conspiracy in view of his acts being not of a nature for
coming to the conclusion of the same being for furthering
the object of conspiracy of or involvement of A-27 in the
same."

(Emphasis added) C
124. The parameters laid down by this Court in entertaining
the appeal against the order of acquittal have to be applied.

125. There is no evidence on record to show that the D
respondent had any knowledge about the nature of the articles
smuggled in India. In view thereof, we do not find any cogent
reason to interfere with the well-reasoned judgment of the
Designated Court. The appeal lacks merit, and is accordingly,
dismissed.
E
CRIMINAL APPEAL NO. 393 OF 2011

The State of Maharashtra ... Appellant

Versus
F
Sharif Khan Abbas Adhikari ... Respondent

126. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007 passed by the
Special Judge of the Designated Court under the TADA in the G
Bombay Blast Case No. 1/93, by which the respondent had
been convicted under Section 111 read with Section 135 of the
Customs Act, 1962, and awarded the sentence of 3 years,
alongwith a fine of Rs.25,000/-, and in default of payment of fine,
H
300 SUPREME COURT REPORTS [2013] 16 S.C.R.

A to suffer further RI for a period of 6 months. However, he had
been acquitted of the charge of conspiracy and charge under
Section 3(3) TADA.

127. Facts and circumstances giving rise to this appeal
am that:
B
A. In addition to the main charge of conspiracy, the
respondent was also charged for participating in the landing
and transportation of the arms, ammunition and explosives at
Shekhadi, Dist. Raigad, for committing terrorist acts and also
c by shifting the said contrabands from motor truck bearing
registration No. MWT-6683 on 3.2.1993 into tempos and motor
jeeps at Wangni Micro Tower Mhasla.

B. After holding the trial, the respondent has been
D acquitted of the aforesaid charges, however, convicted for the
other charges as mentioned hereinabove.

Hence, this appeal.

128. Shri Mukul Gupta, learned senior counsel appearing
E for the appellant has submitted that there is sufficient evidence
against the respondent so far as his participation in landing and
transportation of the arms, ammunition, explosives etc.
Therefore, the acquittal under Section 3(3) TADA, and of the
charge of conspiracy is unwarranted. The evidence on record
F makes it evident that he had knowledge that contraband were
not silver, but arms and ammunition. Therefore, appeal
deserves to be allowed, and the respondent should be
convicted for the aforesaid offences.

129. Ms. Farhana Shah, learned counsel appearing for the
G respondent has submitted that after appreciating the evidence
on n3cord, the Designated Court reached the conclusion that
even if the respondent had participated in landing and
transportation of contraband, he had no knowledge about the
nature of those articles. In the absence of any knowledge
H that those smuqqled aoods contained arms and ammunition,
\/

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E The
E Sup re
[(
L
Court
y 'Reports·
Official Journal
ofReportable S11pre111e Court Decisions

Sanjay Dutt (A-117) v. The State of Maharashtra, Through CBI (STF), Bombay · ....P-368

i
I Union of India and Others v. Sanjay Jethi and Another .... P-495
I
J
•
STATE OF MAHARASHTRA v. FAZAL REHMAN 301
ABDUL [DR. B.S. CHAUHAN, J.]

conviction under the provisions of TADA is not pemiissible. The A
respondent had already served 3 years imprisonment and paid
a fine of Rs.25,0001-. Thus, no further consideration of the
appeal is required. Thus, the appeal i~ liable to be dismissed.

130. We have considered the rival submissions made by
8
learned counsel for the parties and perused the record.

Evidence against the respondent:

Confession of Khalil Ahmed Sayed Ali Nasir (A-42):

131. He disclosed about the incident of landing and
c
transportation on 3.2.1993 that the goods were brought by the
truck by Rashid Umar Alware (A-27) who was driving the truck
himself. In the said truck other persons namely Abdul Salam
Hishamuddin Nazir, Bashir Fakji, Sharif Khan Abbas Adhikari D
(A-60), Muzammil Umar Kadri and Azimbhai Pardesi were
sitting.

Confession of Tulsi Ram Dhondu Surve CA-62):

132. He was the employee at the Wangni Tower. He E
disclosed that he knew respondent Sharif Khan Abbas Adhikari
(A-60), resident of Mhasla and he was the person who brought
Dawood@ Dawood Taklya Mohammed Phanse (A-14) to him
1 % years ago. They had persuaded him (A-62) to help in
loading and unloading the smuggled silver and other goods in F
the tower for a handsome consideration. So far as the relevant
incident is concerned, he disclosed that some of the persons
including Sharif Khan Abbas Adhikari (A-60) came there with
contraband at about midnight and thereafter the goods were
loaded in the tempo from the truck. They paid Rs.1,0001- each
to the said accused, Harishchandra Surve (PW-108), and Vijay I G
Govind. More (PW-137), the other employees at the Wangni
Tower. He had been informed by Sharif Khan Abbas Adhikari
(A-60) regarding the landing and bringing the goods by
Dawood Phanse (A-14) and that is why the accused made all
the arrangements. . H
302 SUPREME COURT REPORTS [2013) 16 S.C.R.

A Deposition of Harish Chandra Surve (PW-108):

133. He corroborated the version given by Tulsi Ram
Dhondu Surve (A-62) and regarding the said incident he
disclosed that he knew all the co-accused/conspirators. The
truck loaded with silver bricks came there and the bricks were
8 shifted in the tempo and jeep. Thereafter all the vehicles left the
tower. The deal was arranged by Tulsi Ram Dhondu Surve (A-
62) on consideration fixed by Dawood Phanse (A-14). The truck
of Rashid Umar Alware (A-27) was carrying silver bricks and
wooden boxes of square shape. Silver bricks were wrapped
C in a gunny cloth. Persons in Maruti car were having small size
guns. He had not seen the weapons with the persons who had
accompanied the jeep and tempo. He further identified Sharif
Khan Abbas Adhikari (A-60) in court to be the person who was
in the jeep.
D
Deposition of Vijay Govind More (PW-137):

134. In respect of the incident dated 3.2.1993, he
deposed that Tiger Memon (AA), Dawood Phanse (A-14),
E Sharif Khan Abbas Adhikari (A-60), Abdul Gharatkar,
Dadamiya Parkar (A-17), Sarfaraz Phanse (A-55) were
amongst the said persons. He further deposed that Dawood
Phanse (A-14), Sharif Khan Abbas Adhikari (A-60) and others
were the occupants of one of the jeep and he also identified
Sharif Khan Abbas Adhikari (A-60) in court.
F
135. The Designated court after appreciating the entire
evidence on record came to the following conclusion:
"Now carefully considering relevant material from
confession of A-42 and A-62 about which excerpts are
G
recited hereinabove it must be said that though same
reveals involvement of A-60 in relevant landing
operation still close look at the same and so also other
evidence does not reveal any material indicating that
A-60 was aware of nature of material which were
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 303
ABDUL [DR. B.S. CHAUHAN, J.]
smuggled during said operation. The same is obvious A
as hardly there is any material revealing that A-60
was present alongwith Tiger Memon when packets of
goods were opened by Tiger ;,,emon on coast.
Similarly, evidence is contrary regarding presence of
A-60 at Wangni Tower when goods were exchanged. B
Having regard to same it will be extremely difficult to hold
A-60 guilty for offence under Section 3(3) TADA."

Having regard to fact that prosecution evidence
about which detail dilation is made while recording the
reasoning regarding the conclusion arrived about gljilt of C
aforesaid accused and the same amongst other having
denoted that A-33 and A-56 were owners of the boat
which was used in contraband operation, both of them
being involved twice in such operation, and even prior to
same themselves and so also A-19 being engaged in D
such activities, the quantity of goods which w~~
transported by A-19 being 48 cartons i.e. approximately
960 Kg. allegedly being silver as told to them, confession
of A-14 revealing amount of Rs. 24, 0001- being paid to
boatmen, A-27I having received an amount of Rs.20,0001 E
- for transpor:tation effected by him. A-60 also being
involved twice in transportation operation as disclosed
· from the confession of A-62 and A-42 and even prior to
same himself being involved in smuggling operations
are the factors for not accepting submissions advanced F
for showing leniency on the count of financial condition
etc. Needless to add that in the event of crimes being
committed for earning handsome profits then hardly there
would be any scope to show leniency on said count as
the same will have an effect of causing erroneous G
impression of culprits being permitted to acquire the
profits by commission of crimes. Needless to add that the
same would warrant of levying a sentence of an
appropriate amount of fine in addition to the sentence of
rigorous imprisonment." (Emphasis added) H
304 SUPREME COURT REPORTS (2013] 16 S.C.R.

A 136. The parameters laid down by this Court in
entertaining the appeal against the order of acquittal have
to be applied.

137. There is no evidence on record to show that the
respondent had any knowledge about the nature of the articles
8
smuggled in India. In view thereof, we agree with the reasoning
given by the Special Judge. No interference is warranted on
the facts of the case. The appeal is accordingly. dismissed.

CRIMINAL APPEAL NO. 391 OF 2011
c
State of Maharashtra ... A-ppellant

Versus

Sharif Abdul Gafoor Parkar @ Dadabhai. .. Respondent
D
138. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007, passed by the
Special Judge of the Designated Court under the TADA in the
Bombay Blast Case No. 1/93, by which the respondent (A-17)
E stood convicted under Section 3(3) TADA, and was awarded
punishment of 7 years RI and a fine of Rs.50,000/- and in default
of payment of fine, to suffer suitable RI, under Section 5 TADA,
he was awarded 10 years RI and a fine of Rs.50,000/-, and in
default of payment of fine, further R.I. for one year; and under
F Section 6 TADA, was awarded 14 years RI, and a fine of Rs.2
lakhs, and in default, to suffer further R.I. for 3 years. All the
sentences were directed to run concurrently.

As the respondent (A-17) has been acquitted of the charge
of conspiracy, the present appeal has been filed by the State.
G
139. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted, that there is ample evidence
on record to show that respondent (A-17) was a close
associate of Tiger Memon (AA) and was a party throughout in
H hatching the conspiracy and, therefore, has wrongly been
STATE OF MAHARASHTRA v. FAZAL REHMAN 305
ABDUL [DR. B.S. CHAUHAN, J.]
acquitted for the said charge. In the statement of the respondent A
(A-17) under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter referred to as Cr.PC.), before .the learned
Designated Court, he himself admitted th<3:t he was fully aware
of the contraband and knew that the same was going to be
used against Hindus for taking revenge. Therefore, the appeal . B
deserves to be allowed.

140. Shri Sushil Karanjakar, learned counsel appearing for
the respondent (A-17) has submitted that the respondent has
already served the sentence of 14 years awarded by the
Designated Court and paid the fine and did not file any appeal C
against his conviction. In spite of the fact that the respondent
(A-17) was fully aware that the arms, ammunition and
explosives that had been smuggled into India by Tiger Memon
(AA) would be used for terrorist activities, he was unable to give
any other person this information as he had been threatened D
with dire consequences. Thus, the respondent (A-17) acted
under threat and coercion. It was further submitted that the
confessions of the co-accused used by the learned Designated
Court to convict the resJilondent (A-17) were made prior to the
date of the amendment i.e. 22.5.1993 except the colti1ession E
of Nasir Dhakla (A-64). However, the statement of Nasir Dhakla
(A-64) cannot be relied upon as there was no corroboration of
the same.

Therefore, at such a belated stage there is no reason to
F
entertain the appeal and convict the said respondent for·
conspiracy, as he had· already suffered enough. Therefore, the
appeal is liable to be dismissed.

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

Evidence against the respondent (A-17):

Confessional statement of Dadabhai Parkar (A-17):
H
306 SUPREME COURT REPORTS [2013) 16 S.C.R.

A · 142. He disclosed that he was a very close associate of
Tiger Memon (AA) and used to participate in smuggling
activities. He had been called by Tiger Memon (AA) many times
for landing etc. So far as the landing on 3.2.1993 is concerned,
he disclosed that on instructions of Tiger Memon he contacted
B R.K. Singh (A-102), the Customs Officer and told him that he
was an informant and asked him to come to hotel Big Splash.
He (A-102) expressed his inability to· come to the hotel Big
Splash but assured that his Superintendent, Sayyed (A-90)
would come. The accused (A-17) and Tiger Memon (AA) had
C some discussion with Sayyed (A-90) and Tiger Memon had told
him about his programme of landing of smuggled goods. On
3.2.1993, he (A-17) left with co-accused and participated in the
landing and brought the smuggled goods. There was some
material in the jeep and cardboard boxes which were covered
with gunny cloth. Inside the boxes there was packing of plastic
0
and inside, in some boxes hand bombs, wire, rifles and pistols
and cartridges were there. Tiger Memon (AA) had been
checking those goods and preparing a list. Baba, Anwar, Shafi
and others were keeping the arms and ammunition etc. in the
cavities.of jeep and tempo. Among the goods that were landed
E there, a \chemical by name black soap was also there. As there
was insufficient space in the tempo, Tiger Memon (AA)
instructed his man to bury 59 bags in the land opposite the
tower. The cardboard boxes and empties were handed over
to some persons and they destroyed the same by burning them.
F As to the packages of "black soap" which had been torn, Tiger
Memon gave them to him (A-17) and instructed .him (A-17) that
he had to be careful while burning them as they may explode.
He burnt the same and at that time heard the noise of explosion
which was very mild. The work was complete by 5.00 a.m. and
G they left for Bombay.

Again on 9.2.1993 there was another landing and Tiger
Memon (AA), Javed, Yakub, Anwar, Shafi, lmtiyaz, Parvez,
Mohd. Hussain etc. all proceeded to Wangni Tower. At that
H time there were 2 tempos, 4 jeeps and one Maruti car. They
STATE OF MAHARASHTRA v. FAZAL REHMAN 307.
ABDUL [DR. B.S. CHAUHAN, J.] ·
went to Coastal side at Shekhadi and after receiving the A
contraband from the trawler they loaded the same in a truck and
came to the tower. Two boxes from the tempo were taken out
and broken and the goods like pistols, weapons were
a<;ljusted in the cavities of the jeep and the empty boxes were
bu~. B

It was on 19.2.1993 that he was paid a sum of Rs.5 lakhs
by Asgar Mukadam @ Munna. He also received Rs.9 lakhs
from Shafi and one lakh from Gani. So, in total he received
Rs.15 lakhs and after deducting all the expenses, the three
partners received Rs.70/75 thousand each. Out of the said 15 C
lakhs, he had paid to Customs Office, Shrivardhan; Customs
Office, Mt;irud; Customs Office Adgaon; Mhasla Police Station,
Shrivardhan Police Station, Borli Out post, Trawler owners,
trucks and to Hamals.
D
Confession of Dawood @ Dawood Taklya Mohammed
.Phanse @ Phanasmiyan A-14:

143. The said accused (A-14) disclosed that he had been
doing the work of landing of smuggled goods of various
E
smugglers in partnership with Sharif Abdul Gafoor Parkar @
Dadabhai (A-17), resi.den.t of village Sandheri and Rahim
Abbas Karbalekar @ Rahim Laundriwala of village Shrivardhan
for last 5~6 years. He (A-14) had been attending the landing of
silverier last 2 y~ars for Tiger Memon (AA). He disclosed that
he had visited Dubai at the instance of Tiger Memon.and met F
Dawood Ibrahim Kaskar. He did not know Q~dabhai (A-17),
howeve~ he could identify him as he had seen ilis photograph
in the newspaper several times. Dadabhai (A"17) asked him
(A-14) as to whether he was interested to work foNlirn and he
(A-14) said that he had stopped the work of silver smuggling. G
He c\vould transport chemicals/explosives and arms
con'signments. After pressing his teeth Dawood Ibrahim told him
(A-14) that Babri Masjid had been put to martyrdom and they
have to take revenge and then asked how much it would cost.
Then Tiger Memon (AA) told him that it would cost about 9-10 H
I
308 SUPREME COURT REPORTS [2013] 16 S.C.R.

A lakhs. Tiger Memon (AA) asked him (A-14) to make the
arrangements fully.

So far as the incident dated 3.2.1993 is concerned, he (A-
14) disclosed that Sharif Abdul Gafoor Parkar@ Dadabhal (A-
B 17) called Rahim Laundriwala and said that landing had to take
place that evening and asked him to make all arrangements
and to talk with Customs officers. He (A-17) disclosed about
the landing and bringing the smuggled goods by the trucks. He
(A-17) came with Tiger Memon (AA) in his jeep and reached
the tower where Sharif Abdul Gafoor Parkar @ Dadabhai (A-
C 17) and Tiger's men were already present. Tiger's men
unloaded the goods from the truck. The boxes contained Rifles,
pistols, ammunition, wire, handgrenades, and something
looking like black soap. Out of the said boxes, Tiger Memon
found something like white pencil and showed it to Sharif Abdul
D Gafoor Parkar-@ Dadabhai (A-17) and told him (A-17) that it
could blow up Oberoi Hotel. He (A-14) further disclosed that
he (A-17) had loaded the boxes in the truck of Rashid, there
were 59 items and he (A-17) asked Rashid to unload them at
the spot which had been dug up for this purpose. Two-three days
E thereafter, Sharif Abdul Gafoor Parkar@ Dadabhai (A-17) told
him (A-14) that the black soap had been loaded by him arid
other persons in the tempo.

Confessional statement of Asgar Yusuf Mugadam (A-10):
F 144. He (A-10) disclosed that he (A-17) was very close
associate of Tiger Memon (AA) and had participated in the
smuggling activities etc. and was involved in landing and
transportation of silver, arms and ammunition with Tiger Memon
(AA). So far as the present respondent (A-17) is concerned,
G he deposed that Tiger Memon (AA) had told the accused (A-
10) that Fifteen Lakh rupees are to be given to Dadabhai (A-
17) for landing. The accused (A-10) and Parvez took Rs. 5
lakhs from Chokshi and gave it to Dadabhai (A-17) after going
to his residence in Juhu.
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 309
ABDUL [DR. B.S. CHAUHAN, J.]

Confession of Abdul Gani lsmial Turk (A-11): A

145. So far as the present respondent (A-17) is
concerned, he stated that he was a close associate of Tiger
Memon (AA) who was dealing with the smuggling of gold and
silver. He used to go to Mhasla in District Raigad, intermittently. B
In the first week of September, 1992, he went alongwith Tiger
Memon (AA) and others to Mhasla by jeep and Maruti car. On
the way, they met Dadabhai (A-17) also. He was indulging in
landing and transportation and the respondent (A-17) alongwith
40-50 persons. On about 3rd February, 1993, he disclosed that C
at about 1 O'Clock in the night, Tiger Memon (AA) came with
many persons including Dadabhai (A-17) alongwith a motor
lorry and the goods on that lorry were unloaded at one room of
Wangni Tower. Tiger Memon (AA) checked all the goods in their
presence and they had witnessed 70/80 black coloured boxes
of chemical, 250/300 handgrenades, 15/20 small pistols and D
60-70 big rifles, wires like electrical wires, empty magazines
(cassettes) of rifles and large number of bullets. All these were
packed in cardboard boxes, carton and gunny bags. In respect
of the incident dated 8th/9th March, 1993, this accused (A-11)
disclosed about the presence of the said respondent (A-17) E
alongwith other co-accused persons who had already reached
by a Maruti-1000 car at Vesava at about 4.30 a.m. There they
took 'Sarai' and then went to the hill side in the jungle, where
Tiger Memon (AA) was throwing handgrenades in the ditch in
order to give training to 5-7 persons. Those persons also F
practiced on operating r~fles. This training went on for two
hours. Dadabhai (A-17) was staying downside. When around
5-6 persons assembled there on hearing the sound of gun-
firing, Dadabhai (A-17) told them that film shooting was going
on the hill, so they went away. Those persons were known to G
Dadabhai (A-17). It was at that time about 12 O'clock in the
noon, those persons after getting training, came down and
handed over empty magazines to Dadabhai (A-17) and left for
Bombay.
H
310 SUPREME COURT REPORTS (2013] 16 S.C.R.

A Confessional statement of Parvez Nazir Ahmad Shaikh
ffi.:.g).:

146. So far as the present respondent (A-17) is
concerned, he disclosed that on 3rd February, 1993, after
8 landing the smuggled goods, they were brought to the Wangni
Tower in a motor lorry by Tiger Memon (AA) alongwith other co-
accused, namely, Shafi, Anwar, Javed, Yakub, Dadabhai (A-
17) and Dawood Taklya (A-14) etc. All the goods in the lorry
were unloaded in the Wangni Tower and in accordance with the
C number series written on the packages, all the goods were
separated from each other. After shifting the goods/contraband,
all the material which was used for packing was burnt by
Dadabhai (A-17) and his men, and as there was no space in
the vehicles for keeping 59 bags of chemical, they were loaded
again in the truck, what happened of those thereafter, he (A-
D 12) did not know. He further deposed that Tiger Memon (AA)
had shown a pencil like article and said that this pencil costs
Rs.25,000/- and with this pencil, he could explode one Oberoi
Hotel. In the entire incident of smuggling on 3rd February, 1993,
Dadabhai (A-17) was all along with Tiger Memon (AA)
E alongwith other persons.

Confessional statement of Mohomed Iqbal Mohomed
Yusuf Shaikh (A-23):

F 147. He disclosed in respect of the incident of landing/
transportation, and corroborated the statements of other co-
accused and disclosed that Dadabhai (A-17) was present and
participated in the said activity and he (A-17) was present when
the bomb was thrown by Tiger Bhai and Mehmud while training
certain persons on the hillock. After hearing the sound after the
G explosion, Tiger Memon (AA) told Dadabhai· (A-17) that the
said hillock was not safe. Then Dadabhai (A-17) took them to
another place. The said hill was far away from the earlier place
in the jungle. Tiger Memon (AA) made the accused (A-23) and
other persons practice gun firing by rifle AK-56. After having
H training, they came down the hill and found Dadabhai (A-17)
STATE OF MAHARASHTRA v. FAZAL REHMAN 311
ABDUL [DR. B.S. CHAUHAN, J.]

standing there near the car and from there they came back to A
Bombay.

Confessional statement of Shanawaz Abdul Kadar
Qureshi (A-29):
B
148. He corroborated the other co-accused and he
disclosed that when landing took place, they brought the
contraband and started unloading and separating the goods
which were wrapped in gunny bags. The rest of the 50-60 big
boxes which were very big, were again loaded in the same
truck by them. The empty cartons were burnt by Dadabhai (A- C
17) and his men. After loading the articles, the truck left.

Confessional statement of Bashir Ahmad Gani Khairulla
(A-13):
D
149. He disclosed that when they went for landing, Tiger
Memon (AA) was accompanied by various co-accused
including Dadabhai (A-17).

Confessional statement of Manoj Kumar Bhanwar Lal
Gupta (A-24): E

150. He disclosed that at about 4.00 p.m., on 2nd
February, 1993, Tiger Memon (AA) came to the Mhasla Tower
alongwith 25 boys including Dadabhai (A-17).
F
Confessional statement of Muzammil Umar Kadri (A-25):

151. He disclosed that Dadabhai (A-17) was.the partner
of Rahim Laundrywala and Dawood Taklya (A-14) ~nd he had
seen all of them near the Wangni Tower.
G
Confessional statement of Syed Abdul Rahman
Kamruddin Syed (A-28):

152. He disclosed the involvement of Dadabhai (A-17)
alongwith others in the purchase of sacks for loading an;d
unloading from a firm. H
312 SUPREME COURT REPORTS (2013] 16 S.C.R.
'
A Confessional statement of Khalil Ahmed Saved Ali Nasir
(A-42):

153. He disclosed that respondent (A-17) was a close
associate of Dawood Taklya (A-14) and Rahim Laundrywala.

B Confessional statement of Mohammed Rafiq @ Rafiq
Madi Musa Biyariwala (A-46):

154. He disclosed that during the relevant period of 3rd
February, 1993, they had been staying at Alibagh alongwith
c respondent (A-17). He left with Shafi for Sandheri village. The
lorry also followed them. On reaching the village Sanderi,
Dadabhai (A-17) loaded 40-50 bundles of empty gunny bags
in the lorry. Dadabhai (A-17) loaded the truck with 59 gunny
bags. The said accused and Dadabhai (A-17) went to the
0 house of Dadabhai (A-17) in Maruti car and found two jeeps
already parked near the house.

Confessional statement of Sujjad Alam Abdul Hakim
Nazir (A-61 ):

E 155. He corroborated the version of the other accused in
respect of the loading and unloading at Wangni Tower on 3rd
February, 1993 and disclosed that Dadabhai (A-17) was also
present there.

F Confessional statement of Tulsi Ram Dhondu Surve (A-
~:

156. He disclosed about the loading and unloading of
contraband at Wangni Tower and participation of Dadabhai (A-
17) alongwith other accused.
G
Confessional statement of Nasir Abdul Kadar Kewel @
Nasir Dhakla (A-64):

157. He corroborated the version of Tulsi Ram Dhondu
Surve (A-62) in. all material respect.
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 313
ABDUL [DR. B.S. CHAUHAN, J.]

Confessional statement of Gulam Hafiz (A-73): A

158. He was a hotel employee and disclosed that at the
relevant time, respondent (A-17) who was a landing agent of
Tiger Memon (AA), and smuggler of gold and silver, came there
to the hotel alongwith a person and from there they went to
B
Wangni Tower.

Confessional statement of Mohamed Sultan Sayeed (A-
W:
159. He disclosed about the meeting in the hotel with c
Dadabhai (A-17) and he has called the said accused to furnish
some information about landing etc. as he wanted to give secret
message to Shri R.K. Singh, Assistant Collector (A-102). He
(A-90) also disclosed that this accused (A-17) was son-in-law
of A.R.Antulay's sister.
D
Confessional statement of Mohd. Parvez Zulifkar Qureshi
(A-100):

160. He also corroborated-the version of other witnesses/
accused, in all material respect and supported the case of the E
prosecution.

Evidence of Usman (PW-2) :

161. According to his deposition, the witness himself was
involved in anti-social activities. He knew respondent (A-17). It F
was respondent (A-17) who booked the room in hotel Big
Splash for the boys of Tiger Memon(AA). Respondent (A-17)
helped Tiger Memon (AA) in collecting bags from· the trawler.
He was the·person who had supplied the boys, for loading and
unloading the contraband and after shifting the goods, the empty G
boxes of ROX etc. were destroyed by respondent (A-17). This
witness also identified the respondent (A-17) in court.

Evidence of Vijay Govind More (PW-137) :
H
314 SUPREME COURT REPORTS [2013] 16 S.C.R.

A 162. According to this witness, the respondent (A-17) was
involved in the smuggling and in the incident of February 1993.
He was the agent of landing and transportation with Dawood
Phanse (A-14) and had brought the goods to Wangni Tower.
Therein, it was shifted from truck to tempos.
B
163. Harish Chandra Surve (PW-108) corroborated the
version given by the respondent (A-17) and he (PW.108)
deposed that he had come on the relevant date, i.e., on 3rd
February at Wangni Tower alongwith Dawood Phanse (A-14)
in jeep and he participated in shifting the goods from truck to
C tempos. He identified respondent (A-17) in the court.

164.Narendra Thale (PW-141) is the employee of Hotel
Big Splash and deposed that respondent (A-17) booked the
rooms in Hotel Big Splash and thus, corroborated the version
D given by Parvez Nazir Ahmed Shaikh (A-12).

165. Vijay D. Kadam (PW-344) supported the version of
other witness/ accused and particularly in respect of booking
the rooms in Hotel Big Splash by respondent (A-17).

E 166. Dileep M. Katarmal (PW-284) deposed that he was
the Manager of the Company from where the jute bags were
purchased in bulk and it was respondent (A-17) with his son
Mujib Sharif Parkar (A-131) who had purchased the bags.

F 167. Jahi S. •<irkire (PW-285) corroborated the version
of Dileep M. Katarmal (PW.284) in respect of purchase of
gunny bags. Suresh Meecheri (PW.485) is the recovery
witness.

168. The aforesaid evidence was considered and
G appreciated by the learned Designated Court, which recorded
the following conclusions:-

(i) Respondent (A-17) was guilty of the offences charged
directly against him which in its term established his
H engagement to carry out the object of the conspiracy and
STATE OF MAHARASHTRA v. FAZAL REHMAN 315
ABDUL[DR. B.S. CHAUHAN, J.]

it made him guilty in the conspiracy charge also. A

(ii) Respondent (A-17) was fully aware about the nature
of goods smuggled into India that it contained rifles, pistols,
bullets, detonators, hand-grenades etc.

(iii) That in spite of the knowledge of nature of B
contrabands/smuggled goods, respondent (A-17)
continued with the operation which he had undertaken.

(iv) Applying the test of judicial pronouncements by this
Court, respondent (A-17) was party to a conspiracy for c
which charge at head firstly was framed against him.

(v) Hardly there was any evidence to reveal that respondent
(A-17) was present in the meeting which had taken place in
Hotel Big Splash by Tiger Memon.
D
(vi) Though there was some evidence which created
suspicion of high degree regarding involvement of respondent
(A-17) in conspiracy for which charge at head firstly was
framed, respondent (A-17) was not liable for conspiracy as it
was not proved that he was a party to the agreement for E.
commission of illegal acts. As he had not been the party to such
meeting, he could not be held liable for conspiracy on the said
counf alone.

(vii) Respondent (A-17) had effected the landing and
F
continued with the sa·id landing in spite of acquiring the
knowledge of said landing being not of silver and being of arms,
ammunitions and explosive substance. He was not liable for
offence of conspiracy as his act had not transcended beyond
effecting the said landing for which he had agreed before G
knowing precise nature of goods to be smuggled.

(viii) Respondent (A-17) did not do anything to furthering
the object of conspiracy. Therefore, he could not be held liable
for the offence of conspiracy. Thus, he did not act for furthering
the object of conspiracy and was not liable for the said offence. H
316 SUPREME COURT REPORTS [2013] 16 S.C.R.

A More so, he did not participate in the crime committed at
Bombay in furtherance of the object of conspiracy.

The aforesaid findings make it crystal clear that they were
mutually inconsistent and could not be in consonance with each
B other.

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

c 170. The respondent (A-17) while making his statement
under Section 313 CrPC answered the court as under:

"I knew that all the weapons and explosives were to be
used in Mumbai and that Bombay Blast were to be brought
about at various places and that revenge on Hindus was
D to be taken. But sJnce Tiger Memon had threatened him
he did not disclose the same to anyone."

171. The Special Judge recorded the finding that the
respondent did not do anything to further the object of
E conspiracy. However, landing was not of silver and gold, but of
arms, ammunition and explosives. The respondent was fully
aware of the nature of the smuggled articles and also the
purpose for which the contraband goods had been smuggled
into India. Even after having such a knowledge, his close
F association with Tiger Memon (AA) confirmed and he
participated and facilitated the transportation of the said
articles.

In such a fact-situation, the Special Judge was not justified
G in acquitting the respondent (A-17) of the charge of conspiracy.

The appeal is allowed. The respondent is convicted for the
charge firstly, and awarded the life imprisonment. He is directed
to surrender before the learned Designated Court within a
period of four weeks to serve out the remaining sentence,
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 317
ABDUL [DR. B.S. CHAUHAN, J.]
failing which the Designated Court will secure his custody and A
send him to jail to serve out the sentence.

CRIMINAL APPEAL NO. ~027 OF 2012

State of Maharashtra ... Appellant
B
Versus

Manoj Kumar Bhanwarlal Gupta ... Respondent

172. This criminal appeal has been preferred against the
impugned judgments and orders dated 5.6.2007 and 2.8.2007 C
passed by the Special Judge of the Designated Court under
the TADA in Bombay Blast Case No. 1/93, by which The
respondent (A-24) has been acquitted of the charge of
conspiracy and has been convicted under Section 3(3) TADA
and has been awarded the sentence of 7 years RI and a fine D
of Rs.50,000/-, and in default of payment of fine to suffer further
RI for a period of one year. Further, under Section 5 TADA, he
was awarded 10 years imprisonment and a fine of Rs.1 lakh,
and in default of payment of fine to suffer further RI for three
years. He was further found guilty under Section 6 TADA and E
was awarded the sentence of 14 years and a fine of Rs.1 lakh,
and in default of payment of fine to suffer further RI for three
years. He was also convicted under Section 3(3) TADA and
Section 201 IPC, and was awarded 5 years imprisonment and
a fine of Rs.25,000/-, and in default of payment of fine to suffer F
further RI for a period of six month. All the sentences have been
directed to run concurrently.

173. Facts and circumstances giving rise to this appeal
are that:
G
A. In addition to the main charge of conspiracy, the
respondent (A-24) was charged under Section 3(3) TADA, for
his participation in weapons' training conducted by Tiger
Memon for handling arms, ammunition and explosives which
took place at Sandheri and Bhorghat, (Dist. Raigad) and his H
318 SUPREME COURT REPORTS [2013] 16 S.C.R.

A association in smuggling, landing and transportation of the
arms, ammunition and explosives on 3rd and 7th February,
1993; thirdly, he was charged under Sections 5 and 6 TADA
for having possession of 2 pistols, one revolver and one country
made pistol unauthorisedly; and lastly for his involvement in
B disposal of 59 packages of explosives i.e. ROX, by engaging
the services of others and throwing them at Nagla Sunder
Creek. He (A-24) was thus found guilty under Section 3(3)
TADA and Section 201 IPC.

B. After conclusion of the trial, the respondent was held
C guilty of the charges as referred to hereinabove, but has been
acquitted of the charge of conspiracy.

Hence, this appeal.

0 174. Mr. Satya Kam, learned counsel appearing for the
appellant has submitted that the involvement of the respondent
(A-24) had been from the very beginning and he had been in
close association of Tiger Memon (AA) and was involved in
hatching the conspiracy, assisting him in landing and
E transportation of arms, ammunition and explosives. Therefore,
he ought to have been convicted for the first charge. Thus, the
appeal deserves to be allowed.

175. On the contrary, Ms. Farhana Shah, learned counsel
for the respondent (A-24) has submitted that he had already
F served the sentence of 14 years and deposited the fine, and
has already suffered a lot. Therefore, it is not warranted to
entertain this appeal against his acquittal in view of the
parameters laid down by this Court in this regard. Therefore,
the appeal is liable to be dismissed.
G
176. We have considered the rival submissions made by
learned counsel for the parties and perused the record.

177. Evidence against the respondent (A-24):

H (a) Confessional statement of Manoj Kumar Bhanwartal
STATE OF MAHARASHTRA v. FAZAL REHMAN 319
ABDUL [DR. B.S. CHAUHAN, J.]
Gupta (A-24) A

(b) Confessional statement of lmtiyaz Yunusmiya
Ghavte (A-15)

(c) Confessional statement of Noor Mohammed Haji
Mohammed Khan (A-50) B

(d) Confessional statement of Nasir Abdul Kader
Kewal @Nasir Dakhla (A-64)

(e) Confessional statement of Tulsi Ram Dhondu
Surve (A-62)
c
(f) Confessional statement of Mohd. Dawood Mohd.
Yusuf Khan (A-91)

(g) Confessional statement of Shahnawaz Abdul D
Kadar Qureshi (A-29)

(h) Confessional statement of Shaikh Mohmed
Ethesham Haji Gulam Rasool Shaikh (A-58)

(i) Deposition of Mohd. Usman Jan Khan (PW.2) E

178. Confessional statement of Manoj Kumar
Bhanwarlal Gupta CA-24) :

His confessional statement was recorded on 30.4.1993
and 9.5.1993. The respondent (A-24) in his confessional F
statement had disclosed that he had been indulged in the
criminal activities since very young age and had committed
murders and was indulged in Hawala business with lijaz Mohd.
Sharif@ Eijaz Pathan@ Sayyed Zakir (A-137-dead) who was
living at that time in Dubai as well as in Bombay. He had G
murdered Majeed in 1986 and absconded. He had also
committed the murder of one Hameed alongwith Dawood
Shamsher Aziz. Even though, he had been arrested several
times in most of the cases but, he had been ~ranted bail.
H
320 SUPREME COURT REPORTS [2013] 16 S.C.R.

A In July 1989, he had murdered Kamaljit Singh as per the
instructions of Ayub and then murdered one Mahmood who had
murdered his friend Kailash Jain in Udaipur, Rajasthan.
However, in these cases he remained absconding. Further in
January, 1992, he came back to Bombay and started Hawala
B business and at that time he stabbed a person named Hallu
and remained absconded. He had developed close
association with Tiger Memon (AA). On 2.2.1993, Tiger
Memon, Hazi Yakoob@ Hazi Yeda Yakoob (AA) accompanied
by 20-25 persons went to Mhasla tower and met Dawood @
c Dawood Taklya Mohammed Phanse @ Phanasmiya, (A-14)
and Dadabhai (A-17) there. They all went to Shekhadi
alongwith Tiger Memon where he (AA) alongwith others went
in the sea and came back with certain bags. The bags were
containing AK-56 rifles, handgrenades, magazines and pistols.
D Tiger Memon gave him (A-24) one AK-56 rifle, 2 loaded
magazines and 1 bag containing handgrenades. Tiger Memon
asked him (A-24) to sit alertly on the sea-shore and also
explained to him the procedure of using the handgrenades by
removing its pin. After some time, a truck came there and the
E goods were shifted from boats into the truck. He went to Mhasla
Tower by another jeep where the packets were unloaded and
opened. There were AK-56 rifles, handgrenades, pistols and
cartridges in those packets. He had seen those packets
containing black soap. The black soap was unloaded in two
F tempos and weapons and cartridges were loaded in jeep and
tempos in the cavities made therein. Altogether, there were five
jeeps and two tempos for all these goods. On the instructions.
of Tiger Memon, the vehicles left in different directions. Tiger
Memon and Haji Yeda Yakoob told him (A-24) to stay in the
G house of Hazi Yakoob at Khar, and he (A-24) stayed there.

Respondent (A-24) again participated in the second
landing on 9.2.1993 wherein uploading of goods started and
were unloaded within two hours. Tiger Memon (AA) brought the
goods to Mhasla Tower and left next morning for Bombay. Tiger
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 321
ABDUL [DR. B.S. CHAUHAN, J.]
Memon (AA) paid him (A-24) a sum of Rs.20,000/- for the job. A
lijaz Pathan (A-137) telephoned him from Dubai and warned
him not to disclose it to anybody. Further, Respondent (A-24)
was contacted by the co-accused for the disposal of 59 packets
stored in a godown and he had taken Rs. 5 lacs for doing the
job and got the said goods destroyed through his persons in B
Nagla Bunder Creek. He (A-24) disclosed that the contraband
used in Bombay Blast were the same which had been unloaded
at Shrivardhan.

179. Confessional statement of lmtiyaz Yunusmiya C
Ghavte (A-15):

He (A-15) has disclosed that on 3.2.1993, Tiger Memon
and other people were there at Shekhadi, and Munna (A-24)
was also one of them. They were carrying bags on their back.
When t~e bags were opened it contained AK-56 rifles, D
handgrenades, magazines, cartridges and explosives. Tiger
Memon was noting down the calculation of the unloaded articles
in his diary. He (A-15) has disclosed that in the second week
of February 1993, Munna (A-24) was given two rifles at the
instance of Bhai whicti were brought by him in a suitcase. The E
accused witness, Shaikh Ali, Munna (A-24) and three other
persons were asked to sit in the tempo containing 84 bags of
the explosives.

180. Confessional statement of Noor Mohammed Haji F
Mohammed Khan (A-50):

He has also made the disclosure statement in respect of
the disposal of the 59 bags containing ROX in a godown which
were thrown with the help of Munna (A-24) at the instance of
Rashid Khan. He (A-50) has disclosed that he asked Rashid G
Khan to help him in arranging the said material. Rashid told him
that he would get it done through his friend Munna (A-24), who
has a large number of boys to do the said job. They decided
to pay Munna (A-24) a sum of Rs.5 lakhs for throwing the
H
322 SUPREME COURT REPORTS [2013] 16 S.C.R.

A material and the 59 packets containing ROX in the Nagla
Creek by the boys of Munna (A-24).

181. Confessional statement of Nasir Abdul Kader
Kewal @Nasir Dakhla (A-64):
B This accused (A-64) has disclosed about the landing at
Shekhadi in which Munna (A-24) had participated with others.
He (A-64) has disclosed about the full participation of Munna
(A-24) in landing and transportation of arms and ammunition
brought from Shekhadi to Bombay in the tempo of Haji and
C further disclosed that he had always been moving alongwith
Tiger Memon (AA) during the said operation.

182. Confessional statement of Tulsi Ram Dhondu
Surve (A-62):
D This accused had disclosed about the incident at Wangni
Tower on the relevant date and disclosed that Munna (A-24)
was with Tiger Memon at Wangni Tower alongwith other
persons, and they first unloaded the contraband at Wangni
Tower and then uploaded it in the jeep and tempo and most of
E the persons were armed with guns and pistols there.

183. Confessional statement of Mohd. Dawood
Mohd. Yusuf Khan (A-91):

F This accused has disclosed that 7-8 days before Ramzan
in 1993 he went to M.K. Builders, Sandra on the instructions
of lijaz Bhai (A-137) from Bombay and there he met with Dev
who contacted lijaz Bhai (A-137) and told him that A-24 had
arrived. At that time lijaz (A-137) and Munna (A-24) came out
of the office, and gave him the key of the vehicle parked
G outside. They all boarded the vehicle and Munna (A-24) sat in
the back seat. He (A-24) saw a black bag lying on the back
seat and lijaz (A-137) told him about the three stunguns lying
inside the bag, and asked him to keep them in his house for
some time. When they reached Kurla, lijaz (A-137) asked
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 323
ABDUL [DR. B.S. CHAUHAN, J.]

Munna (A-24) tp leave. Thereupon, Munna (A-24) took the bag A
from the back seat and handed it over to the accused witness
(A-91).

184. Confessional statement of Shahnawaz Abdul
Kadar Qureshi (A-29):
B
He (A-29) has disclosed that on the last days of January
or in the first week of February, 1993, Javed Chikna asked (A-
29) to accompany him to receive the smuggled goods of Tiger
Memon. They went to Jetty and found three boys there including
Munna (A-24), who also participated in the landing and C
transportation.

185. Confessional statement of Shaikh Mohmed
Ethesham Haji Gulam Rasool Shaikh CA-58):

This accused (A-58) has disclosed that Munna was in close D
association of Tiger Memon and of other co-accused, and was
staying in the house of Haji Yakoob @ Yakoob Yeda (AA).

186. Deposition of Mohd. Usman Jan Khan (PW.2):
E
He has deposed that in December 1992, riots took place
in Bombay and Javed Chikna was wounded by a police bullet
and was admitted in the hospital. He (PW.2) and Shahnawaz
visited him there. While attending the funeral of the son of Aziz,
he met Shafi, the driver of Tiger Memon. Shafi spoke in F
confidence with Javed Chikna and Javed Chikna took the
witness accused alongwith him on the next day to the coastal
area where Tiger Memon's goods were coming. He (PW.2) had
participated in the landing and transportation alongwith the
other persons and Munna (A-24) was also one of them. He had
met Tiger Memon in hotel Big Splash in Rooms nos. 51, 54 G
and 55 booked. They stayed there and at that time they were
told by Tiger Memon that the government failed to stop the
hurniliation of Muslims, thus, he had arranged some arms and
ammunition from Pakistan which were to reach on that day. In
H
324 SUPREME COURT REPORTS (2013] 16 S.C.R.

A the said meeting, a large number of persons were there
including Munna (A-24).

He has also deposed his participation in landing on 3rd
and 7th February, 1993 in which the arms, ammuniti9n,
B particularly AK-56 rifles, pistols and handgrenades had been
smuggled. Karimullah was also there. They had brought the
material to Wangni Tower. After unloading and opening the
same they were again shifted in the jeeps and tempos, and
were brought to Bombay. Munna (A-24) was also in the party.

C 187. The Special Judge had recorded the finding that the
corroborative material supported his involvement in the
Shekhadi landing and. transportation, and he was absconding
alongwith other accused. However, he was acquitted from the
first charge on the basis of following reasons:
D
"Due to his involvement in Shekhadi landing he could be
convicted under Section 3(3) TADA, but it would be
significant to note even the evidence pertaining to
Shekhadi landings and acts committed by Munna (A-24)
in connection with said landings for which he had been
E
held guilty clearly reveal that Munna (A-24) was not the
main person responsible for effecting the said landing nor
had played any prominent role except escorting Tiger
Memon who was effecting the said landing and the goods
which were to be landed and were to be transported from
F Shekhadi to Wangni Tower and thereafter to Bombay.
Even considering the role played by Munna (A-24)
who participated in the said landing clearly appeared
to be on much lower pedestal than the other who
were primarily responsible in organizing and
G effecting the said landing i.e. Tiger Memon, A-14, A·
17, A-15 and few more. Even considering his further acts
for which he has been held guilty under Sections 5 and 6
of TADA, it was clear that same were not committed by
him in pursuance of any conspiracy of Bombay Blast.
H Further, considering the quantum of contraband
STATE OF MAHARASHTRA v. FAZAL REHMAN 325
ABOUL[OR. B.S. CHAUHAN, J.]
arms and ammunitions of pistols, revolver and ·A
country made pistol he could be found guilty for
commission of offences under Sections 5 and 6
TADA. Even considering his role played by him in disposal
of ROX, it was clear that though he was involved still
he was not the main person in disposal of the said B
ROX or the same was the material which was brought
in Shekhkadi landing by Tiger Memon and stored in
the godown. His involvement was only that he had been
uptil hotel at Ghodbunder. He had hardly played any
prominent role in disposal of any ROX and had allowed c
his name to be used by other accused for knocking
handsome amount of money from Noor Mohammed Haji
Mohammed Khan (A-50) in whose godown such material
was found stored. Evidence further revealed that he could
receive only a sum of Rs.10,000/- out of the amount of Rs.5
0
lakhs which was taken by accused Mohd. Jindran and
Rashid Khan from Noor Mohammed Haji Mohammed
Khan (A-50) for disposal of the said material. Therefore,
he cannot be held responsible for acting in
pursuance of main conspiracy and his case would E
definitely fall on lower pedestal than such other
accused persons who were repeatedly committed
different acts in pursuance of main conspiracy."

(emphasis added)
F
188. The parameters laid down by this Court in
entertaining the appeal against the order of acquittal have to
be applied.

189. From the confessional statement made by the
accused it can be ascertained that he (A-24) was aware of the G
arms and ammunition being landed. He stated that he was given
arms and further, was told to sit on alert. He also stated that
Tiger Memon (AA) even taught him how to use handgrenades
and also paid him for his services. He was also later contacted
by co-accused for the disposal of 59 packets stored in a H
326 SUPREME COURT REPORTS [2013] 16 S.C.R.

A godown and was paid Rs. 5 lakhs for the same. He further
revealed that the contraband used in the Bombay Blast of
12.3.1993, was the same as had been landed by him and other
co-accused at Shrivardhan. Co-accused lmtiyaz (A-15), Noor
Mohammed (A-50), Nasir Dhakla (A-64), Tulsi Ram (A-62)
B Dawood Yusuf (A-91 ), Shahnawaz (A-29) and Ethesham (A-58)
have corroborated the knowledge of the respondent and the fact
that he was present when the landing was taking place.

190. The involvement and participation of Munna (A-24)
C was throughout the main conspiracy. The order of the learned
Designated Court acquitting him on the charge of larger
conspiracy is perverse, in view of the evidence on record.
Therefore, conspiracy stands proved. Judgment to that extent
is set aside and the appeal is allowed, and the sentence is
enhanced to .life imprisonment. The respondent is directed to
D surrender before the learned Designated Court within a period
of four weeks to serve out the remaining sentence, failing which
the Designated Court will secure his custody and send him to
jail to serve out the sentence.

E CRIMINAL APPEAL NO. 597 OF 2011

State of Maharashtra through CBI .. Appellant

Versus

F Sarfaraj Dawood Phanse ... Respondent

191. This appeal has been preferred against the judgment
and order dated 2.8.2007, passed by the Special Judge of the
Designated Court under the TADA for the Bombay Blast case,
G Greater Bombay, in the Bombay Blast Case No. 1/93, by which
the respondent has been convicted under Section 3(3) TADA
and acquitted of the main charge of conspiracy.

192. In addition to the main charge of conspiracy, the
respondent (A-55) has been found guilty for offence punishable
H under Section 3(3) TADA, and on the said count, he has been
STATE OF MAHARASHTRA v. FAZAL REHMAN 327
ABDUL [DR. B.S. CHAUHAN, J.]

convicted and sentenced to suffer RI for 9 years, alongwith a A
fine of Rs.25,000/-, and in default, to suffer RI for 6 months.
However, the respondent has been acquitted of the first charge
of conspiracy.

Hence, this appeal.
B
193. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that acquittal of the respondent
on the charge of conspiracy is unwarranted and uncalled for as
large number of co-accused, particularly, Abdul Gani Ismail
Turk (A-11), Suleman Mohammed Kasam Ghavate (A-18), C
Ibrahim (A-41 ), Sajjad Alam (A-61 ), Tulsi Ram Dhondu Surve
(A-62), Mohd. Sultan Sayyed (A-90) and the depositions of
Harish Chandra Surve (PW-108) and Vijay Govind More (PW-
137) specifically revealed a very deep involvement of the
respondent ir the offence and the evidence is sufficient o
warranting his conviction for the charge of conspiracy also.
Therefore, the appeal deserves ·to be allowed.

194. On the contrary, Ms. Farhana Shah, learned counsel
appearing for the respondent has submitted that he had already E
served the sentence of 10 years, though awarded the sentence
of 9 years, and also deposited a fine of Rs.25,000/-. There is
nothing on record to implicate the said respondent in
conspiracy, as he had no knowledge as what was going to
happen, and he had no intention to participate in the offence,
for which he has been charged so far as the conspiracy is F
concerned. Therefore, no further conviction is required.

195. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
G
196. Respondent has not made any confessional
statement.

Confessional statement of Abdul Gani Ismail Turk (A-11 ):

197. The confessional statement of Abdul Gani Ismail Turk H
328 SUPREME COURT REPORTS (2013) 16 S.C.R.

A (A-11) revealed that on 8th/9th February 1993, Suleman
Mohammed Kasam Ghavate (A-18) and (A-11) returned to
Mhasla from Panvel after meeting Tiger Memon (AA), when
they were carrying the goods brought from Mhasla and went
to the house of accused Dawood @ Dawood Taklya
8 Mohammed Phanse (A-14), and thereafter accused Sarfaraj
Dawood Phanse (A-55) had accompanied Abdul Gani Ismail
Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18)
to Bombay and they dropped Sarfaraz Dawood Phanse (A-
55) at the guest house at Sandra at the say of Dawood Phanse
C (A-14).

Confessional statement of Dawood @ Dawood Taklya
Mohammed Phanse (A-14) :

198. The confessional statement of Dawood Phanse (A-
D 14) revealed that after his arrival from Bombay, Sarfaraz
Dawood Phanse (A-55) told him that the absconding accused
Shafi had been to their house and told that he had kept the
weapons in the house of Muzammil Umar Kadri (A-25).

Confessional statement of Suleman Mohammed Kasam
E Ghavate (A-18) :

199. The confessional statement of Suleman Mohammed
Kasam Ghavate (A-18) disclosed that the said accused had
been to Mhasla alongwith Abdul Gani Ismail Turk (A-11) and
F Uttam Shantaram Potdar (A-30) for bringing the part of the
goods which had been smuggled in the first landing operation.
He also corroborated the meeting of Abdul Gani lsmial Turk
(A-11) and Suleman Mohammed Kasam Ghavate (A-18) with
Tiger Memon (AA) at Panvel and had given the message of
G Tiger Memon (AA) to Dawood @ Dawood Taklya Mohammed
Phanse (A-14) and thereafter taken the accused (A-55)
alongwith him to Bombay.

Confessional statement of Saiiad Alam CA-61 ):

H 200. The confessional statement of Sajjad Alam (A-61)
STATE OF MAHARASHTRA v. FAZAL REHMAN 329
ABDUL [DR. S.S. CHAUHAN, J.]
revealed that on 20.1.1993 that said accused (A-61) had gone A
to the house of his grandmother and at that time he found
accused Muzammil Umar Kadri (A-25) present taking 16 rifles
and 32 magazines by a jeep alongwith accused (A-55).

Confessional statement of Tulsi Ram Dhondu Surve (A-
8
62):

201. The confessional statement of Tulsi Ram Dhondu
Surve (A-62) disclosed that during the second landing and
transportation operation of contraband goods organised by
'Dawood @ Dawood Taklya Mohammed Pharise (A-14) and C
Tiger Memon (AA}, accuse.d (A-55) was also present near
Wangni Tower alongwith other co-accused.

Confessional statement of Mohd. Sultan s·ayyed (A-90):

202. The confessional statement of Mohd. Sultan Sayyed D
(A-90) disclosed that on 12.2.1993, respondent (A-55) had
been to the rest house at Mhasla and enquired about R.K.
Singh, Assistant Custom Collector (A-102). The respondent (A-
55) was carrying one plastic bag containing Rs.3 lacs with him
which he handed over to R.K. Singh. E.

203. The Designated Court after considering the entire
evidence came to the following conclusion:

"53-8) Thus considering material contained in F
confessions of above stated accused and so also
evidence to which brief reference is made in the later part
it can be safely said that A-55 who is son of main landing
agent responsible for Shekhadi landing i.e. A-14 was
involved not only in said landing but so also even earlier
to same in committing nefarious activities. Needless to G
add that as denoted by further dilation involvement of A-
.55 in commission of acts for which he is charged at head
2ndly and, consequently in commission of offence u/sec.
3(3) of TADA Act is squarely borne from the same.
H
330 SUPREME COURT REPORTS [2013] 16 S.C.R.

A With regard to argument canvassed that material in
above referred confession or that of wftnesses pertaining
to events which had occurred at Wangni Tower not
disclosing any positive overt act on part of A-55 or that
at time of exchange of goods he was not at Wangni
8 Tower or that he was only travelling on motor cycle etc.
and as such himself being involved by Investigating
Agency in case only because he is son of A-14 does not
appeal to mind after considering in proper perceptive
relevant material. Even accepting that A-55 was then
c moving on motor cycle still considering time of dead
night at which he was doing so, place at which he was
moving etc. clearly shows falsity of all said submissions
after considering material in entirety disclosing acts
committed by A-55. The same considered upon earlier
acts of A-55 in concealment of weapons at his house in
D
absence of his father etc. his participation in going to
house of A- 42 as disclosed by aforesaid material clearly
repels all said submission.

However, even carefully considering all material!
E evidence available against A-55 and same having not
transcended beyond acts committed by him in facilitating
Dighi landing and/or transportation of goods smuggled
and same failing to disclose any material showing his
nexus with conspiracy for which he is charged with
F or conspiracy for which his father A-14 held to be
guilty it will be extremely difficult to accept that his
guilt for same can be said to have been established
by prosecution only on basis of his guilt found to be
€!Stablished for commission of offence u/sec. 3 (3) of
G TADA Act''.

(Emphasis added)

204. We do not see any cogent reason to interfere with
the impugned judgment applying the parameters laid down
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 331
ABDUL [DR. B.S. CHAUHAN, J.]
by this court for interference against the order of acquittal. A
The evidence on record disclosed his involvement and
association with Tiger Memon (AA) in landing and
transportation, but that is because his father Dawood
Phanse (A-14), was the landing agent. The appeal lacks
merit, and is accordingly, dismissed. B

CRIMINAL APPEAL NO. 407 OF 2011

The State of Maharashtra through CBI .. Appellant

Versus c
Ayub Ibrahim Patel . . . Respondent

205. This appeal has been preferred against the
judgments and orders dated 10.11.06 and 31.05.07, passed
by the Special Judge of the Designated Court under the TADA D
for the Bombay Blast case, Greater Bombay in Bombay Blast
Case No.1/93, by which the respondent Ayub Ibrahim Patel (A-
72) has been found guilty for the offences punishable under
Section 3(3) TADA and on the said count has been convicted
and sentenced to suffer RI for 5 years alongwith a fine of E
Rs.25,000/- and in default, to further undergo RI for 6 months.
He has also been found guilty under Section 5 TADA and has
been sentenced to suffer RI for 10 years and has been ordered
to pay a fine of Rs.50,000/-, in default of payment of fine, he
has been ordered to suffer further RI for one year. The F
Respondent has further been found guilty under Section 6
TADA, and has been sentenced to suffer RI for 10 years and
has been ordered to pay a fine of Rs.50,000/-. In default of
payment of fine, he has been sentenced to suffer further RI for
one year. The Respondent also stands convicted under G
Sections 3 and 7 read with Section 25( 1-A)( 1-B)(a) of the Arms
Act. However, he has been acquitted of the charge of
conspiracy.

Hence, this appeal.
H
332 SUPREME COURT REPORTS (2013] 16 S.C.R.

A 206. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that the respondent had been
found to be in the unauthorized possession of 20 hand
grenades, which were part of the consignment of arms that had
been smuggled into India by the terrorists. The said hand
B grenades were recovered from his house upon his disclosure
statement. Therefore, he ought to have been held guilty for the
charge of conspiracy.

207. On the contrary, Shri S.P Sinha, learned counsel
appearing for the respondent has submitted that the
C respondent has not preferred any appeal against his conviction
on any other charges. He has already served out the sentence
that was awarded to him, and has also paid the fine. After
appreciating the evidence on record, the Special Judge has
acquitted the respondent of the charge of conspiracy.The facts
D of the case do not warrant any further interference. :rhus, the
appeal is liable to be dismissed.

208. We have considered the rival submissions made by
the learned counsel for the parties and perused the evidence
E on record.

209. Confessional statement of Baba alias Ibrahim
Mussa Chauhan (A- 41) revealed that he was well acquainted
with Abu Salem (AA), and Anis Ibrahim Kaskar, brother of
Dawood Ibrahim. On 15th January 1993, Salem telephoned him
F (A-41) to find a garage equipped with closed shutters. In this
regard he (A-41) spoke to Salem and Anis Ibrahim Kaskar
several times. Salem asked him (A-41) to keep 2/3 AK-56
Rifles for a few days and also told him that they should be kept
by him (A-41) at his house. On 16th January, 1993 Salem came
G to his house and then they went to the house of Sanjay Dutt (A-
117) and delivered some of the contraband arms to him. A bag
containing 20 grenades was kept by him (A-41) in the car
owned by Sameer (A-53) and a bag containing 3 Rifles, 16
Magazines, 25 hand grenades and 750 bullets was taken by
H him (A-41). The said goods were not taken back by Salem as
STATE OF MAHARASHTRA v. FAZAL REHMAN 333
ABDUL[DR. B.S. CHAUHAN, J.]
promised, so he (A-41) contacted Salem to take it back. A-41 A
received a message to give 2 AK-56 Rifles, 6 Magazines to
Salem Kurla. After some time Salem met A-41 and the latter
informed Salem that remaining ~oods were kept with a
man named Ayub residing at Oshivara. At that time Salem
had 30 loaded magazines wrapped in a plastic bag and he B
· handed over the bag over to A-41 and told him (A-41) that he
had spoken to Ayub via telephone and asked him to keep the
goods with A-41. Accordingly, on the same day Ayub came
with a bag containing 1 AK -56 Rifle, which along with
magazines and a bag was kept at one place. After 2/3 days, c
Salem came to A-41 and handed over a vehicle asking him to
leave it at a place near Ram and Shyam Talkies at Jogeshwari
and hand over the vehicle to Ayub and there were further
instructions for Ayub to keep all the goods except hand
grenades in the car and to leave the car near the office of
0
Salem. A-41 handed over the car to Ayub and conveyed the
message. After Bombay blast, Salem Kurla was arrested and
on his information police arrested A- 41 on or about 28th of
March 1993. After his arrest, the father of A-41 obtained the
bag which he had kept with Ayub through Haji Ismail and E
produced it before the police.

210. Recovery panchnamas - Exts.154-155 make it clea·r
that Sub- Inspector Nerlekar had interrogated the accused Ayub
Ibrahim Patel (A-72) and he expressed his desire to make the
disclosure statement. At· that time, two Panchas were called F
through the Constable and in their presence, Ayub Ibrahim Patel
(A-72) made the statement that he had concealed the hand-
grenades, the recovery of which he would get effected. The
recovery was made and proved by Nerlekar (PW.605) and the
panch witness (PW.44). According to the said witnesses, after G
recording the disclosure statement, i.e., the panchnama, the
accused (A-72) led the Panchas and police team to room
no.202 on the second floor of Noora Building in Dalwai
compound, opposite Ajit Glass Factory Oshiwara(West). The
appellant (A-72) rang the door bell of the said room and the H
334 SUPREME COURT REPORTS (2013] 16 S.C.R.

A door was opened by one lady and she was introduced by A-
72 as his wife named Smt. Kausar. Thereafter, Ayub Ibrahim
Patel (A-72) led the panchas and police in the said room and
took out a plastic bag from a steel cupboard near the eastern
wall of the house. The said bag contained 20 hand-grenades.
s The same was handed over to the Sub-Inspector Nerlekar (PW
- 605) who drew a panchn~ma and left for Worli Police Station
with the hand grenades.

211. The Special Judge after appreciating the entire
evidence summarised the whole case against Ayub Ibrahim
C Patel (A-72) as under:

"However, after carefully considering the matters from the
said confession reveals that A-41 had handed over the bag
containing 25 hand grenades to Iqbal Tunda and had
D informed about the same to Salem and Iqbal Tunda had
informed him of the same being kept with Ayub residing
at Oshiwara still there appears full substance in the
criticism advanced by the Id. Defence counsel that hardly
there exists any material on record to come to the
E conclusion that the person by name Ayub from Oshiwara
referred in the said confession is A-72. There is also further
substance in the defence criticism in such an eventuality
25 hand grenades could have been found with A-
72 .....Thus considering the aforesaid evidence of recovery
F and particularly statement made by A-72 showing his
authorship in keeping the relevant hand grenades and apart
from same A-72 at the trial having not given any other
explanation about the reason because of which such hand
grenades were in his house or his knowledge about the
same all the said factors establishes himself being in
G
possession of such contraband material attracting the
provisions of Sec. 5 of TADA. Now considering the statutory
presumption arising out of the relevant facets established
and the same having remained unrebutted at the trial will
safely lead to only conclusion of A-72 of having possessed
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 335
ABDUL [DR. B.S. CHAUHAN, J.]
the same for the purpose of terrorist act or terrorist activity. A
The same is apparent in view of the law regarding the same
as explained by the Hon'ble Constitutional Bench of the
Apex Court in the decision in the case of Sanjay Dutt v.
State of Maharashtra reported in 1995(5) SCC 410. In
view of the same A-72 will be required to be held guilty B
for commission of offence u/s 5 of TADA.

Though the aforesaid evidence clearly establish~s of A-
72 to be in possession of such contraband material within
notified area still there being no evidence to come to C
the conclusion that the same were part & parcel of
the consignment smuggled into country by co-
conspirators for commission of terrorist acts for
which the charge at head 1stly is framed, A-72 cannot
be held guilty for the said conspiracy. However,
possessing huge quantity of hand grenades considered D
with other evidence not denoting involvement of A-72 in
any terrorist activity also leads to the conclusion of the
same being either kept with him for storage purpose and/
or for assisting some other co-conspirators for
commission of terrorist acts. Needless to add that the E
same is also suggestive of A- 72 having made the
preparation for commission of terrorist acts. In view of the
same A-72 will be also required to be held guilty for
commission of offence u/s. 3 (3) of TADA. Similarly
considering the quantity of hand grenades found in F
possession of A-72 the same also denotes of himself
having committed offence u/s. 6 of TADA and so also the
offence punishable u/s.3 & 7 r/w Sec. 25(1-A) (1-B)(a) of
Arms Act.
~ G
In light of discussion made hereinabove Point Nos. 170
to 173 will be required to be answered in consonance with
the conclusion arrived during the said discussion i.e. A-
72 having committed all the said offences for which the
said points are framed but for the reasons stated
H
336 SUPREME COURT REPORTS [2013] 16 S.C.R.

A hereinabove. However, hardly there being any evidence of
A-72 of having committed the said offence in pursuance
of conspiracy for which he has been charged due to nexus
of material found with him being not established with the
material smuggled for commission of Serial bomb Blast
B and there being no other evidence he will be required to
be absolved from the offence of conspiracy for which he
is charged with''. (Emphasis added)

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

213. From the above discussion it is evident that Baba
Chauhan (A-41) had given 20 hand grenades to one Ayub
resident of Oshiwara. However, he has also disclosed that after
D his arrest on 28th March, 1993, the said contraband had been
produced before the police by his father through Haji Ismail. In
view of the above, the conclusion reached by the learned
Designated Court that there is nothing on the record to
establish that Ayub of Oshiwara could be Ayub (A-72), does
E not require interference. In such a fact-situation, the respondent
(A-72) is entitled to benefit of doubt, so far as the charge of
conspiracy is concerned. The appeal lacks merit, and is
accordingly, dismissed.

CRIMINAL APPEAL NO. 1025 OF 2012
F
State of Maharashtra ... Appellant

Versus

Mohd. Shahid Nizamuddin Qureshi ... Respondent
G
214. This appeal has been preferred against the judgment
and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA in the Bombay Blast Case
No.1 of 1993, by which the said respondent has been convicted
H under Section 3(3) TADA. and has been awarded a sentence
STATE OF MAHARASHTRA v. FAZAL REHMAN 337
ABDUL[DR. B.S. CHAUHAN, J.]

of 10 years rigorous imprisonment, alongwith a fine of Rs A
25,000/-, and in default of payment of fine, to further undergo
RI for six months. He has been acquitted of some of the other
charges including the main charge of conspiracy.

Hence, this appeal.

215. Shri Mukul Gupta, learned senior counsel appearing
for the appellant, has submitted that there is enough evidence
to show the deep involvement of Mohd. Shahid Nizamuddin
Qureshi (A-135) in ttie said crime and, therefore, he ought not
to have been acquitted for the charge of conspiracy. c
216. Ms. Farhana Shah, learned counsel appearing for the
respondent (A-135), has submitted that he has already suffered
tremendously. He has served 11-1 /2 years of sentence, though
he was awarded only 10 years rigorous imprisonment, and has o ·.
also deposited the fine. He has .not filed any appeal against
his conviction, as he has reconciled himself with his fate. There
is nothing on record to show that the accused (A-135) had any
knowledge of the contraband, or how the same was going to
be used. He had no intention to harm any one. Thus, the findings E
recorded by the Designated Court on this issue, do not require
any interference.

217. We have considered the rival submissions made by
the learned counsel for the parties and perused the record.
F
218. The confession of the accused (A-135) was
recorded, however, the same has been discarded by the
Special Judge on the ground that the police officer who had
recorded the confessional statement, had not .ensured
compliance with Section 15 TADA and Rule 15(3) TADA Rules, G
1987.

219. However, as far as the charge of conspiracy is
concerned, the other evidence is of Nasir Abdul Kader Kewal
@ Nasir Dakhla (A-64) who has revealed, that in either at the
H
338 SUPREME COURT REPORTS [2013] 16 S.C.R.

A end of January 1993 or in the beginning of February 1993, at
the instance of Tiger Memon (AA), Javed Chikna, the accused
(A-64) etc., had participated in the landing of contraband goods
such as rifles. bullets, handgrenades, detonators, ROX etc. at
the Shekhadi coast. The said goods had been transported to
B the Wangn! Tower, and here, t.he bags containing the
contraband had been opened and weapons, cartridges etc.,
had thereafter been concealed in fake cavities of the vehicles
that had been arranged for the transportation of the smuggled
goods into Bombay. During the said operation, the accused (A-
C 135) had actively participated alongwith Javed Chikna, and
various other associates. He has further disclosed that 3-4 days
after the first landing, a second landing had taken place, in
which the contraband were smuggled in through Shekhadi
coast, in which yet again, the accused (A-135) had actively
· participated. Usman (PW.2) has also deposed that the accused
0
(A-135) had in fact, participated in the said landing, as well as
in the transportation of the. contraband material.

220. However, a question does arise with respect to
whether the accused (A-135) had been aware of the contents
E of the contraband, and whether he had known the purpose for
which the weapons etc., had been smuggled into India. As per
the material on record, it becomes evident that Tiger Memon
(AA) and his close associates, including the accused (A-135),
had first gone to Hotel Big Splash at Alibagh, and from there
F they had gone to the seashore to participate in the said landing.
At this time, the close associates of Tiger Memon (AA), had
been fully armed with AK-47/56 rifles, revolvers, magazines and
cartridges. They had taken up positions near the seashore to
_prevent any kind of interference. The goods had then arrived
G m large packets, which had been unloaded with the help of
some villagers who were already present there, as the same
had been deployed by Dawood @ Dawood Taklya Mohammed
Phanse(A-14). After the loading of the goods into a truck, the
contraband had been brought to Wangni Tower. All the packets
H had been taken inside the tower, and when the same had been
STATE OF MAHARASHTRA v. FAZAL REHMAN 339
ABDUL [DR. S.S. CHAUHAN, J.]
opened, it had become evident that the packets contained A
explosives, cartridges and arms. These arms had then
subsequently, been filled into secret cavities that had been
created in the jeeps, and were then taken away. After 2-3 days,
Yeda Yakub, Riaz Khatri, Munna Jadia, Ehtesham (A-58),
Akba~ and Karimullah had gone in a Maruti van and had picked s
up Nasir (A~64). Yeda Yakub had told them that more arms
were scheduled to arrive for Tiger Memon (AA) at the Shekhadi
coast, for the purpose of which, they would have to go there.
They had thus, participated in the second landing as well, and
had brought in the said goods. At such time, the associates of c
Tiger Memon (AA) had also been present there, alongwith
Shahid Qureshi (A-135). Following the orders of Tiger Memon
(AA), the packets of arms and explosives had been loaded into
a jeep and a tempo, and had been taken to Bombay.

221. The deposition of Usman Ahmed Jan Khan (PW-2) D
has revealed that Tiger Memon (AA) had convened a meeting
at the hotel Big Splash, and had expressed his desire to take
revenge for the demolition of the Babri Masjid. Shahid (A-135)
had also been present at the said meeting. From the hotel, they
had left for Shekhadi Coast in jeeps. At about 11 p.m., Tiger E
Memon (AA) and his associates, including the accused (A-135)
had gone to high sea, in a boat. The said boat had taken them
to a big red speed boat. Tiger Memon (AA) had gone over to
the other boat, and had brought out seven bags of military colour
from the said speed boat. The bags had contained guns, pistols F
and handgrenades, and also AK-56 rifles.

222. The Designated Court, after appreciating the entire
evidence on record with respect to Nizammudin Qureshi, has
recorded the following conclusion:
G
"All said evidence considered in proper perspective
clearly reveals close association of A-135 with Tiger
Memon and/or himself man of confidence of Tiger
Memon. All said evidence considered in proper
H
340 SUPREME COURT REPORTS (2013] 16 S.C.R.

A perspective clearly reveals involvement of A-135 in
Shekhadi landing episode. ·

Similarly entire evidence having remained
confined to act committed by A-135 of assistirig and
B aiding Shekhadi landing and transportation operation
and there existing no cementing material revealing his
involvement in conspiracy he will be required to be ·held
not guilty for offence of conspiracy for which charge is
framed at head 1st ly."
c 223. Undoubtedly, the respondent had participated in the .
landing at Shekhadi when the contraband were smuggled into
India. However, as the evidence on record as well as the
findings recorded by the Designated·court remain to the effect
that he had not been aware of the articles smuggled, he cannot
D be held liable for punishment for conspiracy.

224. The parameters laid down by this Court in
entertaining the appeal against the order of acqllittal have to
be applied.
E 225. We concur with the finding recorded by the learned
Designated Court, and find no reason to interfere with the order
passed by the Special Judge. The appeal lacks merit, and is
accordingly dismissed.

F CRIMINAL APPEAL NO. 599 OF 2011

State of Maharashtra ... Appellant

Versus

G Shaikh Mohd. Ethesham ... Respondent

226. This appeal has been preferred against the judgment
and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA for Bombay Blast Case
H No.1 of 1993, by which the respondent (A-58) was found guilty
STATE OF MAHARASHTRA v. FAZAL REHMAN 341
ABDUL [DR. B.S. CHAUHAN, J.]
under Section 3(3) TADA and awarded a sentence of 10 years A
with a fine of Rs.25,000/- with suitable RI in default of payment
of fine, for the commission of offence of conspiracy to commit
terrorist act; and further sentenced to suffer RI for 10 years with
a fine of Rs. 25,000/- with suitable RI in default of payment of
fine, for the commission of offence punishable under Section B
3(3} TADA, for commission of such acts as abovesaid.
However, he has been acquitted of the general charge of
conspiracy i.e. first charge.

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

A. In addition to the general charge of conspiracy, the
respondent (A-58) had been charged under Section 3(3) TADA,
firstly on the ground, that he had participated and assisted
Tiger Memon (AA) and his associates in smuggling, landing D
and transportation of arms, ammunition etc., into India for the
purpose of terrorist activities. Secondly, he had assisted in
landing at Shekhadi on 3rd and 7th February, 1993 and had
further agreed to undergo a training in Pakistan for handling of
arms, ammunition and explosives for committing terrorist acts E
and had even attended a conspirational meeting at Dubai to
plan commission of terrorist acts.

B. After conclusion of the trial, the Designated Court
convicted the respondent as referred to hereinabove, but F
acquitted of the charge of larger conspiracy.

Hence, this appeal.

228. Shri Mukul Gupta, learned senior counsel appearing
on behalf of the State, has submitted that the respondent had G
been a very close associate of Tiger Memon and had
participated in landing and went to Dubai for the purpose of
getting training in handling of arms, ammunition and explosives,
attending the conspiratorial meetings at Dubai. Therefore, the
learned Designated Court under TADA, committed an error in H
342 SUPREME COURT REPORTS (2013] 16 S.C.R.

A acquitting him of the first charge of larger conspiracy. Thus, the
appeal deserves to be allowed.

229. Ms. Farhana Shah, learned counsel appearing on
behalf of the respondent, has opposed the appeal contending
that the respondent had already served the sentence of 10
8
years and paid the fine. He did not file any appeal against the
conviction. Though he went to Dubai for going to Pakistan for
having training in handling of arms, ammunition and explosives,
but did not get any training whatsoever, and his acts were prior
to hatching of the conspiracy. He did not participate in any of
C the illegal activity/conspiracy subsequent to coming back from
Dubai. Therefore, the order impugned does not need any
interference whatsoever.

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

231. The evidence against the said respondent (A-58) is
disclosed in the confessional statements of Nasir Abdul Kadar
Kewal @ Nasir Dhakla (A-64), Shaikh Kasam @ Babula! Ismail
E Shaikh (A-109), Sultan-E-Rome Sardar Ali Gui (A-114), Abdul
Aziz Shaikh (A-126), Mohd. Iqbal Shaikh Ibrahim (A-127),
Shahnawaz Khan Faiz Mohd. Khan (A-128) and Murad Ibrahim
Khan (A-130). The said confessional statements revealed that
the respondent (A-58) had participated in the landing at
Shekhadi. He was present at the Wangni Tower at the time of
F shifting the contraband and had also participated in second
landing at Shekhadi. He had also attended the meeting in a
partially constructed building in Khar and agreed to go out of
India for receiving the arms' training in Pakistan. He went to
Dubai on 14.2.1993, but could not go to Pakistan and stayed
G in Dubai for 14 days and returned to India on 2.3.1993. While
in Dubai, he had taken an oath of secrecy that he would not
disclose anything about the conspiracy to anyone.

The aforesaid evidence also stands corroborated by the
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 343
ABDUL [DR. B.S. CHAUHAN, J.]

evidence of Usman Ahmed Jan Khan (PW-2) and Prakash A
Ramugade (PW-207).

232. The Designated Court after appreciating the entire
evidence on record reached the conclusion as under:

"Thus considering material in the confession of A-58 and B
aforesaid co-accused the same leads to the conclusion
of A-58 also being involved in Shekadi landing operation
as denoted by said material and as such having
committed offence u/s. 3(3) of TADA for which he is
charged at head 2nd ly clause 'a'. In the said context it C
is necessary to add that considering evidence pertaining
to Shekhadi landing in proper perspective and role
carried out by A-58 in the same and during said
operation contraband material being opened at the sea
shore and so also exchanged from truck to other D
vehicles at Wangni Tower, the defence submission that
A-58 was not aware about nature of contraband material
to be brought etc. does not appeal to mind. Needless to
add that considering material in confession of other co-
accused regarding Shekhadi landing episode it is difficult E
to accept such submission. Needless to add that A-58
was man of close confidence of Tiger Memon is being
also revealed from fact of himself being given weapon
during relevant operation.

Similarly A-58 himself having participated in said F
operation in which large quantity of arms, ammunition
and explosives were smuggled into India leading to
legitimate conclusion of same being brought for
commission of terrorist act and still A-58 thereafter having
agreed to undergo weapon training in operating arms, G
ammunition in foreign country and in said process having
gone to Dubai but being required to return in view of
further arrangements being not made clearly denotes A-

H
344 SUPREME COURT REPORTS [2013] 16 S.C.R.

A 58 was party to conspiracy to commit terrorist act
. punishable u!sec. 3(3) of TADA Act.

However all said acts committed by A-58 being
much prior to main conspiracy of committing serial
blast having taken final shape i.e. during conspiratorial
B
meetings held in month of March, 1993 and A-58 atter
returning from Dubai having not participated in any
act furthering object of larger conspiracy for which
charge at head 1st ly in framed he cannot be held liable
for larger conspiracy and he will be requiretl to be held
c guilty for conspiracy to commit terrorist act as stated
aforesaid."

(Emphasis added)

D 233. The parameters laid down by this Court in
entertaining the appeal against the order of acquittal have to
be applied.

234. In view of the fact that the respondent has already
served the sentence of 10 years and paid the fine, therefore
E we are not inclined to allow this appeal. It is accordingly
dismissed.

CRIMINAL APPEAL NO. 395 of 2011

State of Maharashtra ... Appellant
F
Versus

Farooq llliyas Motorwala ... Respondent

235. This appeal has been preferred against the final
G judgment and order dated 2.8.2007, passed by the Special
Judge of the Designated Court under the TADA in Bombay
Blast Case No.1 of 1993, by which the respondent has been
found guilty for the offences under Section 3(3), and awarded
13 years RI with a fine of Rs.25,000/- and in default of payment
H of fine, to suffer further RI for 6 months. He was also convicted
STATE OF MAHARASHTRA v. FAZAL REHMAN 345
ABDUL [DR. B.S. CHAUHAN, J.]

under Section 3(3) TADA, and awarded 7 years RI with a fir.e A
of Rs.25,000/-, in default of payment of fine, to suffer further RI
· for 6 months. However, he has been acquitted of some other
charges including the larger conspiracy.

236. Facts and circumstances giving rise to this appeal 8
are that:

A. In addition to the main charge of conspiracy, the charge
against the respondent was that in pursuance of the
conspiracy, he visited Dubai on a fictitious passport No. H-
. 118352, obtained by him in the name'of Kazi Salim lllyas and C
participated in conspiratorial meeting held at Dubai alongwith
other co-accused Mohmed Jamil Omar Khatlab (PW-1)
(approver), who had been recruited for undergoing weapons
training in Pakistan.
D
B. After conclusion of the triCll,. the Designated Court
convicted the respondent as referred to hereinabove, but
acquitted of some charges including the larger .conspiracy.

Hence, this appeal.
E
237. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that there was sufficient material
on record to show the involvement of the respondent in larger
conspiracy and the Special Judge has committed an error in
acquitting him for the said charge. Thus, the appeal should be F
allowed.

238. On the contrary, Mr. S.P. Sinha, learned counsel
appearing for the respondent (A-75) has submitted that the
respondent has been awarded 13 years' rigorous G
imprisonment and a fine of Rs. 50,000/-. The respondent has
already served the sentence and also deposited the fine.
Therefore, at such a belated stage, this court should not interfere
against the order of acquittal, in view of the parameters laid
down by this court, for entertaining the appeal against acquittal.
H
346 SUPREME COURT REPORTS [2013) 16 S.C.R.

A Thus, the appeal is liable to be dismissed.

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

240. Evidence against the respondent (A-75):
B
(a) Confessional statement of the respondent (A-75)

(b) Confessional statement of Mohd. Salim Mira
Moiddin Shaikh @Salim Kutta (A-134)
c (c) Deposition of Mohd. Jabir Umar Khatlab (PW-1)

(d) Deposition of Tota Tiwari (PW-340)

(e) Deposition of Rajan Dhoble (PW-585)
D
Confessional statement of the respondent (A-75):

241. He disclosed that he indulged in smuggling of goods
and used to go to Dubai frequently. He was introduced by his
friend Latif Bagwala to Tahir Merchant. The respondent (A-75)
E had a passport, however, he obtained another passport in a
fictitious name i.e. Kazi Salim lllyas Majid Rajkotwala and on
a fictitious address. On 15.1.1993, he went to Dubai on the
passport obtained in a fictitious name and attended the
meetings with Tahir Merchant. Respondent (A-75) called his
F friend Mohd. Jamil Omar Khatlab (PW.1) (approver) to Dubai
and sent him to undergo arms' training in Pakistan. Respondent
(A-75) returned to Bombay on 27.2.1993 and Mohd. Jamil Omar
Khatlab (PW.1) also came back after having training in
Pakistan in handling weapons. After the Bombay blast, Mohd.
G Jamil Omar Khatlab (PW.1) had told him (A-75) that a person
had come from Tahir Merchant and asked him to keep guns
and pistols.

Confessional statement of Mohd. Salim Mira Moiddin
H Shaikh @ Salim Kutta (A-134):
STATE OF MAHARASHTRA v. FAZAL REHMAN 347
ABDUL [DR. B.S. CHAUHAN, J.]
242. The said co-accused did not name the respondent A
(A-75) specifically. However he corroborated that there were
7 conspiratorial meetings held in Dubai at the behest of
Dawood Ibrahim and Mustafa Majnu and an oath was
administered to them for taking revenge from Hindus for the
damage of Babri Masjid. B

243. Mohd. Jamil Omar Khatlab (PW-1) deposed that
on 11.2.1993, respondent (A-75) took him to Tiger Memon (AA)
at Al-Husseini Building. Tiger Memon (AA) told them that during
December 1992 and January 1993, Muslims had greatly
suffered. Babri Masjid was demolished and Indian Government C
remained a mere spectator. So they should take revenge.
Thereafter they were administered oath to take revenge. He
further disclosed that Tiger Memon had told them that he would
teach a lesson to the Indian Government by exploding bombs
at various places and attack people with rifles and for that D
purpose he wanted persons who can participate in such
actions. At this juncture, Mohmed Jamil Omar Khatlab (PW.1)
and respondent (A-75) had agreed to participate. Mohd. Jamil
Omar Khatlab (PW .1) told Tiger Memon (AA) that he did not
know how to handle arms. Thereafter, the respondent (A-75) E
told Mohd. Jamil Omar Khatlab (PW.1) that he would be sent
for weapons training in Pakistan where LS.I. would train them
and Mohd. Jamil Omar Khatlab (PW.1) agreed to go to
Pakistan for the same. Tiger Memon (AA) had told them that
young Muslims from all over India would be sent to Pakistan F
for weapons' training and they decided to destroy the society
and create panic and for that purpose he would get all the
required· assistance from Pakistan. They were also
administered oath again by Tiger Memon (AA) that none of
them would disclose any information about the plan. On G
20.2.1993, Mohd. Jamil Omar Khatlab (PW.1) got a phone call
from the respondent (A-75) from Dubai who instructed him to
reach Dubai on 24.2.1993. He was also informed that one
Walter D'Souza, friend of respondent (A-75) would hand over
the passport of Mohd. Jamil Omar Khatlab (PW.1 ). On H
348 SUPREME COURT REPORTS [2013) 16 S.C.R.

A 24.2.1993, he (PW.1) received the passport and he left for
Dubai on 25.2.1993. This witness also identified the air tickets
etc. in the court. Mohd. Jamil Omar Khatlab (PW.1) further
deposed that he reach~d Dubai airport on 25.2.1993 at about'
4.45 p.m. and respondent (A-75) and one Tahir Bhai received
B him at the airport and Tahir Bhai had made arrangements for
his stay at Dubai. On 26.2.1993, a meeting of Tahir Me.rchant
with the respondent (A-75) took place at the flat of Tahir
Merchant and in the said meeting Tahir Merchant told Mohd.
Jamil Omar Khatlab (PW.1) that he had to leave for Islamabad
C where he would be given military training to fight against Hindus
and particularly for throwing bombs and operating fire arms.

244. The case of the prosecution was.further corroborated
by the Investigating Officer as well as by the panch witnesses,
particularly, Tota Tiwari (PW-340) and Rajan Dhoble (PW-
D 585) and the documents (i.e his fictitious passport, embarkation
and disembarkation cards.) which facilitated the journey of the
respondent (A-75) from Bombay to Dubai and Dubai to
Bombay.

E 245. The learned Designated Court after appreciating the
entire evidence held:

"19. Thus, considering all the aforesaid self-eloquent
matters revealed from the evidence of RW-1, the same
squarely reveals the manner in which A-75 had taken
F PW-1 to Tiger Memon. It is significant to note that upon
Tiger Memon telling the matters narrated in clause (3),
PW-1 had expressed to him that he was not knowing to
operate weapon and thereafter A-75 had told PW-1 that
he will be sent for weapon training at Pakistan where
G IS/ will help him in training and PW-1 had agreed for
going to Pakistan for weapon training.

20. Since the further matters stated in further part of
evidence of PW-1 having revealed the manner in which
H he had been to Dubai, A-75 along with Tahir Bhai had
STATE OF MAHARASHTRA v. FAZAL REHMAN 349
ABDUL [DR. B.S. CHAUHAN, J.]
been to the airport for receiving him and the further acts A
committed by A-75 and the fact of PW-1 having been
to Pakistan and having participated in training
programme, clearly reveals PW-1 was initiated in
conspiracy by A-75 i.e. the conspiracy to which he
was party since earlier. Needless to add that all the said B
material clearly establishes A-75 having committed the
offence under Section 3(3). of TADA for which he was
charged with and so also himself being in conspiracy
for commission of terrorist acts as observed earlier
during the discussion made in Part-10. c
21. Though the aforesaid evidence clearly reveals
involvement of A-75 in a conspiracy to commit
terrorist acts and himself having initiated PW-1 in the
said conspiracy still the evidence reveals that A-75 had D
not committed any act after 26th February 1993 for
furthering the object of conspiracy to which he was party
or to the larger conspiracy for which he has been charged
at head firstly.

22.Now considering the evidence which has surfaced at E
trial, it is clear that the targets for commission of bomb
Blast at Bombay were discussed by Tiger Memon for the
first time to other co-conspirators in the meetings which
had taken place after 6th of March, 1993 at the house of.
Babloo or Mubina. Thus, there being hardly any F
evidence on record of A-75 being aware that the serial
bomb Blast were to be committed by committing
explosions at such place and/or himself having not
participated in any other operation after 26th
February, 1993, though the evidence reveals his G
involvement in conspiracy still the same does not
transcend further'than establishing involvement of A-
75 in the conspiracy other than commission of terrorist
acts made punishable under Section 3(3) of TADA.
Since knowledge of the object of conspiracy is the vital H
350 ·SUPREME COURT REPORTS [2013] 16 S.C.R.

A part for determining liability of conspirator in a conspiracy
to commit the offences and even though some suspicion
might be arising due to the acts committed by A-75 also
being involved in larger conspiracy as every conspirator
need not know every act to be committed by other
B conspirators or the other conspirators still the same
cannot take the place of proof of involvement of A-75 for
the larger conspiracy."

(Emphasis added)
c 246. The Special Judge while dealing with the sentence
part observed :
"Thus guilt of A-75 for offence of conspiracy has
remained confined to the extent of himself being guilty
D for offence of conspiracy to commit terrorist act.
Needless to add that it was neither prosecution case nor
any evidence has surfaced on record revealing that either
A-75 had participated in any of the further operation which
were effected for furthering the larger object of conspiracy
and/or himself being aware that the explosions were to
E
be committed in Bombay by the co-conspirators.

xxxxx

Thus in light of reasoning given aforesaid, it will be
F difficult to accept submission of Id. Chief P. P. to give
maximum to A-75 for the reasons canvassed by him and
dealt earlier and so also for any other reason, which is
a/so precisely absent. At the cost of repetition, it will be
necessary to say, that even it is accepted that inducting
G such person into conspiracy is a heinous act still merely
on said count awarding maximum punishment to
accused responsible for same de hors considering the
extent of other acts committed by him and thereby
assessing the element of criminality existing in him would
amount allowing oneself to be swayed by feelings and
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 351
ABDUL [DR. B.S. CHAUHAN, J.]
would amount of having acted without any logical A
reasoning behind it. Needless to add that an adult person
joining any conspiracy would be always due to such
decision taken ,by him the entire liability of his such a
decision cannot be fastened upon other who have
advocated with him for joining such a conspiracy. Having s
regard to the same, while awarding punishment to A-75
it will be necessary to take into account the gravity of the
act committed by him and so also the other
circumstances relevant to same as urged on his behalf
or even otherwise. c
However, at the same time the relevant facet spelt
from evidence that A-75 had not committed any te"orist
act at any point of time or after 24th Feb., 1993 any act
furthering the object of conspiracy for which he has been
found to be guilty or furthering object of larger conspiracy D
of which outcome was Serial Bomb Blast."

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

248. The Special ~udge recorded the finding that the
respondent did not do anything to further the object of
conspiracy. However, he was involved in sending Mohd. Jamil
Omar Khatlab (PW-1) to Dubai and further to Pakistan for
getting initiated in the training of weapons. The respondent F
received the co-accused at the airport and attended 7
conspiratorial meetings held in. Dubai. Admittedly, the
respondent who travelled to Dubai had a fictitious passport for
a particular pllrpose. He further went to Pakistan and undertook
the training in handling the arms, ammunition and explosives. G
He met Tiger Memon (AA) in Dubai, who told him that they
would teach a lesson to the Indian Government by exploding
bombs etc. However, the learned Designated Court did not
convict him on the charge of conspiracy. Such a conclusion is
H
352 SUPREME COURT REPORTS [2013) 16 S.C.R.

A not worth acceptance and the said finding being perverse, is
liable to be set aside.

The appeal is allowed. The respondent has now been
convicted for the charge first and awarded the life
B imprisonment. He is directed to surrender before the learned
Designated Court within a period of four weeks to serve out
the remaining sentence, failing which the Designated Court will
secure his custody and send him to jail to serve out the
sentence.

c CRIMINAL APPEAL NO. 397 of 2011

State of Maharashtra through CBI ... Appellant

Versus

D Mohd. Rafiq Usman Shaikh ... Respondent

249. This appeal has been preferred against the final
judgment and order dated 2.8.2007 passed by the Special
Judge of the Designated Court under the TADA in Bombay
E Blast Case No.1 of 1993, by which the respondent/accused has
been convicted for the offences punishable under Section 3 (3)
TADA and awarded 7 years RI with a fine of Rs.15,000/- and
in default of payment of fine, to suffer further RI for 3 months on
each count. However, he has been acquitted of the general
F charge of conspiracy.

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

A. In addition to the main charge of conspiracy, the
G appellant (A-94) was charged under Section 3(3) TADA, as he
had visited Pakistan alongwith other co-conspirators via Dubai
and underwent training in handling of arms, ammunition and
explosives with the object of committing terrorist acts and even
attended the meetings at the residences of Nazir Ahmed Anwar
H Shaikh @ Babloo (AA) and Mubina Bai where plans for
STATE OF MAHARASHTRA v. FAZAL REHMAN 353
ABDUL [DR. B.S. CHAUHAN, J.]

committing terrorist acts were discussed/finalised. Further, he A
had also taken oath in the name of Quran while in Dubai, not to
disclose to anybody about the conspiracy.

B. After conclusion of the trial, the respondent was held
guilty of the charges as referred to hereinabove but has been 8
acquitted of the charge of conspiracy.

Hence, this appeal.

251. Mr. Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that the Special Judge was not C
justified in imposing such a lenient punishment in view of the
fact that the respondent (A-94) had gone to Pakistan and
acquired the knowledge in handling of arms and ammunition
during training. He had attended the conspiratorial meetings
wherein conspiracy was not only hatched, but plans for o
committing terrorist acts were also given final stage. Moreover,
he had taken oath as to non-disclosure of information about the
conspiracy in the name of Quran in Dubai. Therefore, the
appeal deserves to be allowed.

252. On the contrary, Ms. Farhana Shah, learned counsel E
appearing for the respondent has submitted that the respondent
(A-94) had been awarded 7 years RI which he has already
served. He had also deposited the fine imposed upon him. The
deposition of Mohd. Usman Jan Khan (PW.2) is not worth
reliance for the reason that he was also an accused who, F
subsequently turned to be an approver. Moreover, Mohd. Usman
Jan Khan (PW.2) had not named him (A-94) specifically as being
present in the conspiratorial meeting on 10.3.1993 and there
is no material even on record to show that the respondent (A-
94) was present on 11.3.1993 in the conspiratorial meeting at G
· Al-Husseini building. Therefore, the respondent (A-94) cannot
be discriminated against, as his role had been like pll others
particularly, Gui Mohamamed@ Gullu Noor Mohmed Shaikh (A-
77), Mohmed Hanif Mohmed Usman Shaikh (A-92), Mohmed
H
354 SUPREME COURT REPORTS [2013] 16 S.C.R.

A Sayeed Mohmed lssaq (A-95), Shaikh Ibrahim Shaikh Hussein
(A-108) and Usman Man Khan Shaikh (A-115) except that none
of the above named accused had participated in the
conspiratorial meetings.

Moreover, in spite of the fact that on 10.3.1993, the
B respondent (A-94) was present in the conspiratorial meeting
and accepted a sum of Rs.5,000/- from Tiger Memon (AA), .he
did not participate in any overt act on the fateful day i.e.
12.3.1993, when the Bombay Blast took place. Therefore, no
interference is required with the impugned judgment and order,
C and enhancement of punishment is not warranted.

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

254. Evidence against the respondent (A-94):
D
(a) Confessional Statement of Mohd. Rafiq Usman Shaikh
(A-94)

(b) Confessional statement of Bashir Ahmed Usman Gani
E Khairulla (A-13)

(c) Confessional statement of Nasim Ashraf Sherali
Barmare(A-49)

(d) Confessional statement of Parvez Mohmed Parvez
F Zulfikar Qureshi (A-100)

(e) Confessional statement of Shahnawaz Abdul Kadar
Qureshi (A-29)

(f) Confessional statement of Zakir Hussain Noor Mohd.
G Shaikh (A-32)

(g) Confessional statement of Abdul Khan (A-36)

(h) Confessional statement of Firoz @Akram Amani Malik
(A-39)
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 355
ABDUL [DR. B. S. CHAUHAN, J.]
.(i) Confessional statement of Niyaz Mohamed (A-98) A.

(j) Deposition of Mohd. Usman Jan Khan (PW-2)

(k) Deposition of Jagdesh Lohalkar (PW.237).

(I) Deposition of Ramchandra (PW.231) B
255. Confessional Statement of Mohd. Rafiq Usman
Shaikh (A-94) - He has disclosed that he was of 25 years of
age and used to wash cars and fill petrol. He lost his job 7-8
months prior to Bombay Blast. On 16.2.1993, one Mohmed C
Jabir Abdul Latif Mansoor (A-93) (now dead) told the
- respondent (A-94) that his ticket to Dubai had been arranged
for 17.2.1993 and he (A-94) went to Dubai by an Air India flight
on 17 .2.1993. He was received at Dubai airport by a fair looking
man with a beard at Dubai airport. The respondent (A-94) stayed D
in a hotel with five other persons who had gone there for the
same purpose, namely, Haji Yakub, Anwar, Bashir and Nasir
Dhakla. Four more persons had joined them there, and on the
advice of Tiger Memon (AA) they went to the airport on
20.2.1993 to go to Islamabad. They reached Islamabad where
they were received by a person who took them to a hilly jungle E
area where tents had already been pitched. On the next day,
Javed Chikna told the respondent (A-94) to get ready for pistol
and machine gun training and advised him to learn all those
weapons, as atrocities had been committed on Muslims in
Bombay. Respondent (A-94) participated in the training and F
came back to Dubai from Islamabad on 1.3.1993. He also took
oath in the name of Quran in Dubai alongwith other conspirators
not to reveal any information about the training etc. to anyone.
Respondent (A-94) returned to Bombay on 3.3.1993. On
10.3.1993, respondent (A-94) had participated with other G
conspirators in a conspiratorial meeting at Mubina's place at
Sandra, where targets were discussed and groups were
assigned particular duties and each participant was given a
sum of Rs.5,000/- by Tiger Memon (AA).
H
SUPREME COURT REPORTS [2013] 16 S.C.R.

A 256. The aforesaid confessional statement of the
respondent (A-94) was further corroborated by the
confessional statement of Bashir Ahmed Usman Gani
Khairulla (A-13) to the extent that he revealed the presence
of respondent (A-94) in the conspiratorial meeting on 10.3.1993
s at Sandra, and that Tiger Memon (AA) had given everybody a
sum of Rs.5,000/- in the meeting.

257. Confessional statement of Nasim Ashraf Sherali
Barmare (A-49) - He has revealed the version given by
respondent (A-94) to the extent that he (A-94) had attended the
C training in Pakistan and further he (A-94) attended the meeting
at Sandra on 10.3.1993, and each of the participants was
given a sum of Rs.5,000/-.

258. Confessional statement of Parvez Mohmed
D Parvez Zulfikar Qureshi @Parvez Kelewala (A-100) - He
has also disclosed the similar facts as given by the respondent
(A-94) in his confessional statement to the extent that the
respondent (A-94) attended the arms' training in Pakistan.

259. Confessional statement of Shahnawaz Abdul
E
Kadar Qureshi (A-29) - He has revealed that the respondent
(A-94) had gone to Pakistan for arms training via Dubai and
attended the meeting in Dubai. He had also taken on oath in
the name of Quran that he would not reveal any information
about conspiracy to anyone and that he was told in that meeting
F by Tiger Memon (AA) that his tickets were ready for evening
flight for Bombay.

260. Confessional statement of Zakir Hussain Noor
Mohd. Shaikh (A-32) - He has disclosed that respondent (A-
G 94) had joined other conspirators for training in Pakistan and
took an oath in Dubai in the name of Quran.

261. The same version stood corroborated further by the
confessions of Abdul Khan @Yakub Khan Akhtar Khan (A·
H 36), Firoz @Akram Amani Malik (A-39) and Niyaz Mohmed
STATE OF MAHARASHTRA v. FAZAL REHMAN 357
ABDUL [DR. B.S. CHAUHAN, J.]
@ Aslam Iqbal Ahmed Shaikh (A-98). A
262. Mohd. Usman Jan Khan (PW.2) has deposed that
he knew the respondent (A-94) and he identified him in court.
He has further deposed that the respondent (A-94) had
attended the arms' training in Pakistan. B
263. Jagdish Shantaram (PW.237) and Ramchandra
(PW.231) have also proved the departure of respondent (A-94)
from Bombay to Dubai on 17.2.1993 and his arrival in Bombay
on 3.3.1993 respectively.
c
264. The Special Judge after appreciating the entire
evidence came to the following conclusion:

"109. Now considering the matters stated in the confession
of A-94 the similar phenomenon is found therein and D
hence detailed dilation regarding same is avoided. The
same also alike the confession of A-64 though reveals that
A-94 had initially agreed to go to Dubai for the purposes
of trip ultimately in a similar manner (but alongwith different
person). He had reached the said training camp in which
A-64 was acquiring training along with other persons. E
Similarly, the same also reveals of A-94 and his
companion being cleared at Islamabad airport in the
similar manner. As a difference the material on page of
confession of A-94 reveals that in Pakistan A-94 had
acquired the knowledge that he has to take training and F
· at the said juncture absconding accused Javed Chikna
had told him the purpose for which the said training of
operating pistols and machine gun was to be taken. Now
visualizing the situation then prevailing between India and
Pakistan in the year 1992 and still A-94 having continued G
to take training and/or not making any protest about the
·same even later on also clearly reveals of himself having
joined the band of said. Thus, considering all the material
contained in confession of other accused and concerned
evidence it is amply clear that the person with beard who H
358 SUPREME COURT REPORTS [2013) 16 S.C.R.

A had met A-77 and A-94 at Dubai was none else but Tiger
Memon.

xx xx xx xx
111. Now considering further material in the confession of
B A-94 the same in terms reveals the promptness in which
he has gone to Pakistan and acquired training at the said
place. On the said backdrop considering the earlier recitals
in the confession that he had gone for a trip clearly
appears to be not only inconsistent with other matters
c stated in the confession but the same clearly appears to
have been belied by other material stated in the said
confession. Thus the said recitals will be liable to be
discarded. After discarding the said recitals and
considering in proper perspective other material the same
D clearly reveals that A-94 having agreed for acquiring
training at Pakistan and for the said purpose he had
promptly gone and acquired the same.

xx xx xx xx
E 113. [ ... ] The same being not directed against any
particular person the said fact clearly reveals that the same
cannot be said to be of any other purpose rather than for
commission of terrorist acts. The aforesaid fact is also
fortified by the further material contained in the confession
F regarding the manner in which A-94 had taken an oath and
the matters then told by Tiger Memon.

114. Thus, considering all facets from confession of A-94
about which few are discussed hereinabove, it can be
G safely said that the same squarely establishes the
guilt of A-94 in commission of offence for which
charges are framed against him.

xx xx xx
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 359
ABDUL [DR. B.S. CHAUHAN, J.]
118. In the premises aforesaid i.e. in the light of A
discussion made hereinabove, it can be safely said that
A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-64, A-77, A-
92, A-94, A-95, A-98, A-100, A-108 and A-105 had been
to Pakistan via Dubai themselves and as agreed had
received training in handling of sophisticated arms, B
ammunitions, explosives for commission of terrorist
acts and in said process A-77, A-92, A-95, A-108 and A-
115 had attended meeting themselves and/or the
remaining also had taken on oath of secrecy and were
involved in planning in commission of terrorist act after c
returning to India and/or utilizing the training acquired by
them and thus having committed offence punishable u/s
3(3) of TADA and so also offence of conspiracy all the
points under the discussion i.e. point Nos. 22, 23 and 24,
will be required to be answered in affirmative against each
0
of them."

TADA COURT ON SENTENCE of A-94

"519. Now considering the case of A-94 from them, though
same apparently appears to be different than the remaining E
five due to himself having participated in the meeting on
10th of March, 1993, the close look at the evidence and
particularly his confession does not reveal himself having
committed any further act or any evidence denoting that
he had acquired knowledge of further activities to be F
committed in pursuance of conspiracy to which other
members in said meeting were party and in future the said
members having indulged in commission of further acts
furthering the objects of the larger conspiracy to which
other said members are found to be guilty. Needless to G
add that though confession of A-94 reveals that said
meeting was attended by Tiger Memon, PW-2, Javed
Chikna, Bashir, A-32, A-38 and 14-15 others, the said
material does not transcend further other than showing that
sm?ll groups were formed at said meeting and the H
360 SUPREME COURT REPORTS (2013) 16 S.C.R.

A members of said group were discussing the matters
amongst themselves and Tiger Memon had given Rs.5000/
- to each of participant of the said meeting. Curiously
enough material fails to denote commission of any further
act by A-94 making him liable for being a party to larger
B conspiracy in pursuance of which further preparatory acts
for commission of Serial Bomb Blast was committed.
Needless to add that the material reveals that A-94 was
enquired whether he was knowing driving and he had
replied in negative. The material in the confession also
c reveals that on 14th of March, 1993, A-16 had told A-94
that Tiger Memon had caused the bom9 explosions and
has ran away etc. Thus, careful consideration of said
material though reveals that case of A-94 is somewhat
different still at the same time the same fails to establish
of the same being materially different and/or being on
D
higher pedestal than other 5 accused concerned with
present discussion.
)()( )()( )()(

E 526. Thus, considering acts committed by each of
aforesaid 6 accused and out of them involvement of A-94
being slightly more than others but having regard to the
crucial fact that in spite of all of them at certain point of
time having become party to conspiracy to commit terrorist
F act, in pursuance of same or otherwise having acquired
the necessary training surreptitiously in a foreign country
for commission of terrorist act and thus each of them
having acquired/gained sufficient potential for commission
of terrorist act but in fact none of them having committed
such act and each of them having remained continuously
G
in custody for a long period of 5-6 years after arrest uptil
their release on bail and the same having reduced the
potential acquired by each of them for commission of
heinous crime and same in turn having resulted in
protecting the society at large from such potential gain and
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 361
ABDUL [DR. B.S. CHAUHAN, J.]
even after release of said accused on bail, their conduct A
being not indicative of themselves having attempted to use
potential gain by them for causing any danger to society
at large and in fact the act committed by all of them having
not resulted in causing any danger to society and other
matters stated by them during their statement recorded B
upon quantum of sentence will deserve not giving any
much harsher or the maximum punishment to them. The
same would be necessary as the conduct of these accused
after their release on bail in some what indicative of there
being eradication of the element of criminality because of c
which they had committed the crime."

265. This Court has laid down parameters for interference
against the order of acquittal time and again and the same have
to be followed herein.
D
266. In view of the fact that the respondent (A-94) had gone
to Pakistan and took training in handling the arms, ammunition
and explosives and also attended the cpnspiratorial meeting
at Dubai and took oath in the name of Quran not to divulge any
information regarding the conspiracy, it is abundantly clear that E
the respondent was aware of the purpose of training in Pakistan
and he undertook the training there without any protest.

267. We are of the view that the Special Judge committed
an error in not convicting the respondent for the larger
F
conspiracy. Therefore, the appeal is allowed and he is awarded
life imprisonment. He is directed to surrender before the learned
Designated Court within a period of four weeks to serve out
the remaining sentence, failing which the Designated Court will
secure his custody and send him to jail to serve out the
sentence. G

Kalpana K. Tripathy Appeals disposed of.

H
362 SUPREME COURT REPORTS [2013] 16 S.C.R.

A Annexure 'A'
s Criminal Accused Name Sentence Awa rd
No Appeal and Number. Designated by
Court Supreme
Court
B
1. 418of2011 Fazal Rehman Acquitted Dismissed
Abdul (A-76)
2.. 409 of 2011 Manjoor Qureshi Acquitted Dismissed
& Ors. (A-88,
A-109, A-114,
c A-126, A-127
(dead) and
A-130)
3. 601 of 2011. Krishna Sadanand Acquitted Dismissed
Mokal & Ors.
D (A-83, A-84 and
A-87)

4. 404 of 2011 Moiddin Abdul Acquitted Dismissed
Kadar
E Cheruvattam
(A-48)

5. 405 of 2011 Asfaq Kasam Acquitted Dismissed
Hawaldar (A-38)

F 6. 394 of 2011 Ismail Abbas Patel Acquitted Dismissed
(A-80)

7. ·1033 of Rukhsana Mohd. Acquitted Dismissed
G 2012 Shafi Zariwala
(A-103)

8. 594 of 2011 Sayyed Ismail Acquitted Dismissed
Sayyed Ali Kadri
(A-105)
H
STATE OF MAHARASHTRA v. FAZAL REHMAN 363
ABDUL [DR. B.S. CHAUHAN, J.]
9. 402 of 2011 Mohd. Ahmed Acquitted Dismissed A
Mansoor (A-132)

10. 1022 of Rashid Umar U/s 111 r/w Dismissed
2012 Alwar (A-27) Sec. 135 of
Customs
B
Act-

3 years RI
with fine of
Rs,25,000/-
and c
acquitted
of charge of
conspiracy

11. 393 of 2011 Sharif Khan Abbas U/s 111 r/w Dismissed
Adhikari (A-60) Sec. 135 of D
Customs
Act-

3 years RI
with fine of
Rs.25,000/-
E
and
acquitted
of charge of
conspiracy .
F
12. 391 of 2011 Sharif Abdul U/s 3(3) Allowed
Gafoor Parkar @ TADA 7 and
Dadabhai (A-17) years RI awarded
with fine of life
Rs.50,000/-; imprison-
U/s 5 TADA ment G
10 years RI
with fine of
Rs.50,000/-;
U/s 6 TADA
14 years RI H
364 SUPREME COURT REPORTS [2013] 16 S.C.R.

A with fine of
Rs. 2
lakhs; and
acquitted
from
charge of
B conspiracy

13. 1027 of Manoj Kumar U/s 3(3) Allowed
2012 Bhanwarlal Gupta TADA 7 and
(A-24) years RI awarded
c with fine of life
Rs.50,000/-; imprison-
U/s 5 TADA ment
10 years RI
with fine ·of
Rs. 1 lakh;
D U/s 6 TADA
14 years RI
with fine of
Rs.1 lakh;
U/s 3(3)
E TADA and
Sec.201 IPC
5 years RI
with fine of
Rs.25,000/-;
and
F acquitted
from
charge of
conspiracy

G 14. 597 of 2011 Sarfaraj Dawood U/s 3(3) Dismissed
Phanse (A-55) TADA- 9
years RI
with fine of
Rs.25,000/-;

H
STATE OF MAHARASHTRA v. FAZAL REHMAN 365
ABDUL [DR. B.S. CHAUHAN, J.]
and A
acquitted
from
charge of
conspiracy

15. 407 of 2011 Ayub Ibrahim Patel U/s 3(3) Dismissed B
(A-72) TADA- 5
years RI
with fine of
Rs.25,000/-;
U/s 5 TADA- c
10 years RI
with fine of
Rs.50,000/- ;
U/s 6 TADA
10 years RI
with fine of D
.
Rs.50,000
.
and
·acquitted
from
charge of E
conspiracy

16. 1025 Of Mohd. Shahid U/s 3(3) Dismissed
2012 Nizamuddin TADA-10
Qureshi (A-135) years RI
with fine of .
F
Rs.25,000/-;
and
acquitted
from
charge of G
conspiracy

17. 599 of 2011 Shaikh Mohd. U/s 3(3) Dismissed
Ethesham (A-58) TADA-10
years RI
with fine of H
366 SUPREME COURT REPORTS [2013] 16 S.C.R.

A RS.25,UUU/-;
and further
U/s 3(3)
TADA-10
years RI
with fine of
B Rs.25,000/-
and
acquitted
from
charge of
c conspiracy

18. 395 of 2011 Farooq llliyas U/s 3(3) Allowed
Motorwala (A-75) 13 years RI and
with fine of awarded
Rs.25,000/-; life
D U/s 3(3) imprinso-
TADA 7 ment
years RI
with fine of
Rs.25,000/-
E and
acquitted
from
charge of
conspiracy
F 19. 397 of 2011 Mohd. Rafiq U/s 3(3) Allowed
Usman Shaikh TADA 7 and
(A-94) years RI awarded
with fine of life
Rs.15,000/- imprison-
G and ment
acquitted
from
charge of
conspiracy

H We have dealt with 19 appeals filed by the State against
STATE OF MAHARASHTRA v. FAZAL REHMAN 367
ABDUL [DR. B.S. CHAUHAN, J.]
the order of acquittal on certain charges and particularly, the A
charge of conspiracy. Out of the said 19 appeals, we have
dismissed 15 appeals, however, allowed 4 appeals bearing
Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor Parkar
@ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012
(Manoj Kumar Bhanwarlal Gupta (A-24), Criminal Appeal B
No. 395 of 2011 (Farooq lliyas Motorwala (A-75) and
Criminal Appeal No. 397 of 2011 (Mohd. Rafiq Usman
Shaikh (A-94). The respondents in these appe_als ae awarded
life imprisonment and they are directed to surrender before the
learned Designated Court within a period of four weeks to serve c
out the remaining sentence, failing which the Designated Court
will secure their custody and send them to jail to serve out the
sentence.