of Maharashtra Vs. Som Nath Thapa,  INSC 526
(12 April 1996)
B.L. (J) Hansaria B.L. (J) Ahmadi A.M. (Cj) Sen, S.C. (J) Hansaria. J
1996 AIR 1744 1996 SCC (4) 659 JT 1996 (4) 615 1996 SCALE (3)449
Bombay of yesterday, Mumbai of today:
financial capital of the nation. It woke as usual on 12th March, 1993. People started for their places of
work not knowing what was in their store. The terrorists and/or disruptionists,
bent on breaking the backbone of the nation (for reasons which need not be gone
into) had, however, hatched a well laid-out conspiracy to cripple the country
by striking at its financial nerve. As Bombay set down to work, blasting of bombs, almost simultaneously, took place
at important centres of commercial actvities like Stock Exchange, Air India, Zaveri Bazar, Katha Bazar and many
shocked Bombay and a stunned nation first tried to
provide succour to the victim as much as possible and then wanted to know the
magnitude of the loss of life and property. It surpassed all imagination, as it
was ultimately found that the blasts left more than 250 persons dead, 730
injured and property worth about Rs.27 crores destroyed. By all counts, it was
thus a great tragedy; and revolting also, as it was men-made.
right thinking persons and wellwishers of the nation started asking; Why it happened
? How could it happen ? We are not concerned in these ceses with why, but with
how. The gigantic task led Bombay police,
despite its capability, to seek assistance of the CBI. An arduous and
painstaking investigation by a team of dedicated officials showed that the
aforesaid bomb blasts were a result of deep rooted conspiracy concerted action
of many, guided either by greed or vengeance. The finale of investigation
consisted in charge-sheeting 145 persons (of whom 38 were shown as absconders)
under various sections of the Penal Code and the Terrorists And Disruptive
Activities (Prevention) Act, 1987 (TADA), hereinafter the Act also. The Designated Court constituted under Section 9 of the
Act came to be seized of the matter and by its impugned order of 10.9.1995 it
has framed charges against 127 persons, discharing at the same time 26. One
died and two became approvers. (The total thus comes to 146)
the charged accused, four:
Abu Asim Azmi;
alias Raju Code Jain; and
Thapa have approached this Court having felt aggrieved at their having not been
discharged. The State of Maharashtra has approached the Court seeking
cancellation of bail granted to appellant Thapa.
were fortunate to have leading criminal lawyers of the country to assist us in
the matter in asmuch as Shri Ram Jethmalani appeared for Raju and Moolchand, Shri
Ratinder Singh for Abu Azim Azmi, Shri R.K. Jain for Amzad Ali and Shri Shirodkar
for appellant Thapa. The State was represented by Addl. Solicitor General, Shri
arguments were advanced by the learned counsel to sustain the stands taken by
them. We put on record our appreciation for the able assistance rendered by
appeals call for examination of three questions of law. These are:
What are the ingredients of "criminal conspiracy' as defined in Section
120-A o the Penal Code ?
When can charge be framed ?
What is the effect of repeal of TADA ?
understanding and explaining the legal position, we would examine the cases of
individual appellants and would see whether any of them deserves to be
discharged. We would then express our view whether bail of Thapa has to be
cancelled and whether Moolchand has to be released on bail.
ingredients of criminal conspiracy:
would be apposite to note at the threshold that sections 120-A and 120-B, which
are the two sections in Chapter V - A of the Code, came to be introduced by
Criminal Law Amendment Act of 1913. The Statement of Objects and Reasons stated
that a need was felt for the same to make conspiracy a substantive offence. In
doing so the common law of England was
borne in mind.
Section 120-A defines criminal conspiracy as below:
Definition of criminal conspiracy:- When two or more persons agree to do, or
cause to be done, (1) an illegal act, or (2) an act which is not illegal by
illegal means, such an agreement is designated a criminal conspiracy:
that no agreement except an agreement to commit an offence shall amount to a
criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object".
This definition shows that conspiracy consists in either doing an illegal act
or a legal act by illegal means. Shri Tulsi emphasised that we should bear in
mind the illegality of means as well. Group action being apparently involved,
it was urged that division of performances in the chain of actions as happens
in smuggling of narcotics should also be taken note of by us. The Addl.
Solicitor General was at pains in contending that protection of the society
from the dangers of concerted criminal activity may not be lost sight of by us.
Ram Jethmalani, who addressed us principally on the questions of law involved,
filed a compilation of relevant decisions for our benefits, wherein the
essential ingredients of criminal conspiracy have been spelt out. The decisions
mainly relied by the learned counsel are R. vs. Hawkesley, 1959 Criminal Law
Report 210; and People vs. Lauria, 251 California Appeal 2d 471. Some assistance is derived from a judgment of this Court
in Natwarlal Shankarlal Mody vs. State of Bombay, 1961 Bomboy Law Report 661.
The only other foreign decision we would be required to note is United States vs. Feola 420 US 671, referred to
on behalf of the State. We would finally see what was held by a two Judge Bench
of this Court in Ajay Aggarwal vs. Union of India, 1993 (3) SCC 609 strongly
relied on by Shri Tulsi.
The thrust of Shri Ram Jethmalani's argument is that to find a person quilty of
conspiracy there has to be knowledge of either commission of any illegal act by
a co-conspirator or taking recourse to illegal means by the co-conspirator,
along with the intent to further the illegal act or facilitate the illegal
means. Though at one stage the learned Addl. Solicitor General sought to
contend that knowledge by itself would be enough, he, on deeper thought,
accepted that this would not be. But then, according to him, at times intent
may be inferred from knowledge, specially when no legitimate use of the goods
or services in question exists. To sustain this submission, he also relied on Lauria's
case. He has added a rider as well. The same is that so far as knowledge is
concerned, the prosecution, in a case of present nature cannot be called upon
to establish that the conspirator had knowledge that the goods in question
would be used for blasting of bombs at Bombay. This follows, according to the
Addl. Solicitor, from the decision of the United States Supreme Court in Fegla.
Let us first see what was held in Hawkesley. The facts of that case are that
the accused was a partner with Z in a small taxi business. A and B, two young
men with some previous criminal record, who were fairly well known to Z but
less well known to the prisoner, H, persuaded H to drive them on credit from
the taxi office in the centre of the city at about 12.25 a.m. a distance of
about five miles to the outskirts of the city. H did not know that either A or
B had criminal records. On the journey A and B informed H that the purpose of
the journey was to break into a golf club. H dropped A and B near the golf club
and a police officer overheard one of them say, "We will want you back in
about an hour". H never did return to the golf club but returned to the
city where he drove some other fares which had been previously booked after
which he went home taking his taxi with him.
B ran away from the golf club on being disturbed be the police and were later
arrested together. A and B were charged with being in possession of
house-breaking implements by night and A, B and H were charged with conspiracy
to break and enter the club. A and B pleaded "guilty" to both counts
and H pleaded "not quilty" to the count of conspiracy against him.
When A end B were arrested a torch which was usually kept in the taxi was found
in their possession. H made a statement to the police in writing in which he
said that on the journey he learnt that A and B were "Going to do the
The evidence as to how a torch came into possession of A and B was conflicting.
There was no evidence that the accused knew, until the journey in the taxi had
begun, that A and B intended to commit a criminal offence or that he had any
reason to suspect that they intended to do so. It was, therefore, held that
there was no evidence as to conspiracy because of lack of evidence that the
accused and A and B were acting in concert or had agreed together to commit a
criminal offence. It is brought to our notice that this Court in Natwar Lal's
case (supra) had also held that knowledge of conspiracy is necessary as appears
from what was stated at page 667 of the Report. Shri Jethmalani, therefore,
submits that mere knowledge that somebody would commit an offence would not be
sufficient to establish a case of criminal conspiracy, unless there be evidence
to show that all had acted in concert or had agreed together to commit the
offence in question.
The discussion in Lauria is more illumnating and its importance lies in the
fact that learned counsel of both the sides have sought to place reliance on
J., who decided the case, was confronted with two leading cases of the United
States Supreme Court pointing in opposits directions - one was that of United
311 US 205 wherein sellers of large quantities of sugaryeast and canes were
absolved from participation in a consipracy among distillelrs who bought from
them. In Direct Sales Co., vs. United States, 319 US 703, however, a wholesaler
of drugs was convicted of conspiracy to violate the federal narcotic laws by
selling drugs in quantity to a co-assused physician who was supplying them to
addicts. The distinction between these two cases appeared primarily based on
the proposition that distributors of such dangerous products as drugs are
required to exercise greater discrimination in conduct of their business than
are distributors of innocuuous substances like sugar and yeast.
J., therefore, observed that in Falcone the seller's knowledge of the illegal
use of the goods was insufficient by itself use of the goods was insufficient
by itself to make the seller privy to a conspiracy with the distillers who
bought from them, whereas in Direct Sales, the conviction was affirmed on
showing that the drug wholesaler had atively promoted the sale of the drug
(morphine sulphate) in quantity and had sold that same to a physician who practised
in a small town - the quantity being 300 times more than the normal requirement
of the drug.
The following quotations in Lauria from the decision in Direct Sales is very pertinent
articles of commerce may be put to illegal ends,...............
all do not have inherently the same susceptibility to harmful and illegal
use....... This difference is important for two purposes. One is for making
certain that the seller knows the buyer's intended illegal use. The other is to
show that by the sale he intends to further, promote and cooperate in it. This
intent, when given effect by over act, is the gist of conspiracy. While it is
not identical with mere knowledge that another proposes unlawful action, it is
not uprelated to such knowledge.......... The step from knowledge to intent and
agreement may be taken. There is more than suspicion, more than knowledge,
acquiescence, carelessness, indifference, lack of concern. There is informed
and interested co- operations stimulations instigstion."
The learned Judge, after examining they precedent in the fields thereafter held
that sometimes, but not always, the criminal intent may be inferred from the
knowledge of the accused of the unlawful use made of the goods in question.
gave two illustrations to bring home the point, one of which is that the intent
may be inferred from knowledge, when no legitimate use for the goods or
services exists. Being of this view, Fleming , J. held that the respondent
before him (Lauria) had knowledge of the-criminal activities of the
prostitutes, end the same was sufficient to charge him with that fact, even
though what Lauria had manifestly tone was allowing them, who were actively
plying their trade, to use his telephone. The prosecution in that case Sad
attempted to establish conspiracy by showing that Lauria was well aware that
his co-defendants were prostitutes, who had received business calls from
customers through his telephone answering service, despite which Lauria
continued to furnish them with such service. This action of Lauria was regarded
as sufficient to hold that he had conspired with the prostitute to further
their criminal activity.
The Additional Solicitor General has, according to us.
a march over the counsel for the accused because of what was stated in Lauria's
case, as he is undoubtedly right in submitting that RDX, or for that matter
bombs, cannot be put to any legitimate use but only to illegitimate use; and it
is RDX or bomb which was either handled or allowed to slip by the accused
before us. So, this act by itself would establish the intent to use the goods
for illegitimate purpose.
Another decision to come tn the assistance of the prosecution is Feola. This
decision of the United States Supreme Court is important because the presented
in that case was whether knowledge that intended victim was a federal officer
essential establish crime of conspiracy under the relevant provision which made
an assault upon a federal Of while engaged in the performance of his official
duties, an offence. Justice Blackmun, who delivered opinion far the majority,
held that in so far substantial offence is concerned, to answer question of
individual guilt or innocence, awareness the official identity of the assault
victim irrelevant. It was then observed that the same has obtain with respect
What had happened in Feola was that he and his confederates had arranged for
sale of heroin to buyers, who turned out to be undercover agents for the Bureau
of Narcotic and Dangerous Drugs. The planning of the group was to palm off on
the purchasers, for a substantial sum, a form of sugar in place of heroin and,
should that ruse fail, simply to surprise their unwitting buyers and relieve
them of the cash they had brought along for payment. The plan failed when one
agent on a suspicion being aroused, drew his revolver in time to counter an
assault upon another agent from the rear. So, instead of enjoying the rich
benefits of a successful swindle, Feola and his associates found themselves
charged, to their undoubted surprise, with conspiring to assault and assaulting
The plea taken by Feola was that he had no knowledge of the victim's official
identity and as such he could not have been guilty of conspiracy charge. The
Court was, therefore, first required to find out whether for the substantive
offence of charge envisaged by the punishing section, awareness of the official
identity of the victim was relevant; and the majority answered the question in
negative, because the offence consisted in assaulting a federal officer on
duty; and undoubtedly there was an assault and the victim was a federal officer
on duty. The further step which the majority took, and with respect rightly,
was that the same logic would apply with respect to conspiracy offence.
The Additional Solicitor General has thus a point when he contended that to
establish the charge of conspiracy in the present case, it would not be
necessary to establish that the accused knew that the RDX and/or bomb was/were
meant to be used for bomb blast at Bombay, so Long as they knew that the
material would be used for bomb blast in any part of the country.
in the present case the bomb blast was a result of chain of actions, it is
contended on behalf of the prosecution, on the strength of this Court's
decision in Yash Pal Mittal vs. State of Punjab 1977 (4) SCC 540, which was
noted in para 9 of Ajay Aggarwal's case that of such a situation there may be
division of performances by plurality of means sometimes even unknown to one
another; and in achieving the goal several offences may be committed by the
conspirators even unknown to the committed. All that is relevant is that all
means adopted and illegal acts done must be and purported to be in furtherance
of the object of the conspiracy, even though there may be sometimes misfire or
over-shooting by some of the conspirators.
Our attention is pointedly invited by Shri Tulsi to what was stated in para 24
of Ajay Aggarwal's case wherein Ramaswamy, J. stated that the law has developed
several or different models or technique to broach the scope of conspiracy. One
such model is that of a chain, where each party performs even without knowledge
of the other, a role that aids succeeding parties in accomplishing the criminal
objectives of the conspiracy.
illustration given was what is done in the process of procuring and
distributing narcotics or an illegal foreign drug for sale in different parts
of the globe. In such a case, smugglers. Middleman privies to a single
conspiracy to smuggle and distribute narcotics. The smugglers know that the
middlemen must sell to retailers and the retailers know that the middlemen must
buy from importers. Thus the conspirators at one end at the chain know that the
unlawful business would not, and could not, stop with their buyers, and those
at the other end know that it had not begun with settlers. The action of each
has to be considered as a spoke in the hub - there being a rim to bind all the
spokes together in a single conspiracy.
The aforesaid decisions, weighty as they are, lead us to conclude that to
establish a charge of conspiracy knowledge about indulgence in either an
illegal act or a legal act by illegal means is necessary. In some cases, intent
of unlawful use being made of the goods or services in question may be inferred
from the knowledge itself. This apart, the prosecution has not to establish
that a particular unlawful use was intended, so long as the goods or service in
question could not be put to any lawful use. Finally, when the ultimate offence
consists of a chain of actions, it would not be necessary for the prosecution
to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so long as it
is known that the collaborator would put the goods or service to an unlawful
can charge be framed ?
This legal question is not as knotty as the first one.
is for the reason that there are clinching decisions of this Court on this
aspect of the matter.
Ram Jethmalani has urged that despite some variation in the language of three
pairs of sections, which deal with the question of framing of charge or
discharge, being relatable to either a sessions trial or trial of warrant case
or summons case, ultimately converge to a single conclusion, namely, that a
prima facie case must be made out before charge can be framed. This is what was
stated by a two-Judge Bench in R.S. Naik vs. A. Antulay 1986 (2) SCC 716.
Let us note the three pairs of sections Shri Jethmalani has in mind. These are
sections 227 and 228 An so far as sessions trial is concerned; sections 239 and
240 relatable to trial of warrant Cases; and sections 245 and (2) qua trial of
summons cases. They read as below:
227: Discharge - If, upon consideration of the record of the case and the
documents submitted therein, and after hearing the submissions of the accused
and the prosecution in this behalf, the Judge considers that there is not
sufficient ground for proceeding against the accused, he shall discharge the
accused and record his reasons for so doing.
228: Framing of Charge - (i) If, after such consideration and hearing as
aforesaid, the Judge is of opinion that there is ground for presuming that the
accused has committed an offence which (a) is not exclusively triable by the
Court of Session, he may frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial Magistrate and thereupon the
Chief Judicial Magistrate shall try the offence in accordance with the
procedure for trial of warrant- cases instituted on a police report;
exclusively trial by the Court, he shall frame in writing a charge against the
Where the Judge frames any charge under clause (b) of sub-section (1), the
charge shall be read and explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged or claims to be tried.
supplied) Section 239: When accused shall be discharged - If, upon considering
the police report and the document sent with it under Section 173 and making
such examination, if any, of the accused as the Magistrate thinks necessary and
after giving the prosecution and the accused an opportunity of being heard, the
Magistrate considers the charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so doing.
240: Framing of charges if, upon such consideration, examination, if any, and
hearing the Magistrate is of opinion that there is ground for presuming that
the accused has committed an offence triable under this Chapter, which such Magistrate
is competent to try and which, in his opinion, could be adequately punished by
him, he shall frame in writing a charge against the accused (2) The charge
shall then be read and explained to the accused, and he shall be asked whether
he pleads guilty of the offence charged or claims to be tried.
245: When accused shall be discharged-(1) If, upon taking all the evidence
referred to in Section 244, the Magistrate considers, for reasons to be
recorded, that no case against the accused has been made cut which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.
Nothing in this section shall to deemed to prevent a Magistrate from
discharging the accused at any previous stage of the case if, for reasons to be
recorded by such Magistrate, he considers the charge to be groundless."
Before adverting to what was stated in Antulay's case, let the view expressed
in State of Karnataka vs. L. Muniswamy), 1977 (3) SCR 113
be noted. Therein, Chandrachud, J. (as he then was) speaking fore a three Judge
Bench stated at page 119 that at the stage of framing charge the Court has to
apply its mind to the question whether or not there is any ground for presuming
the commission of the offence by the accused. As framing of charge affects a
person's liberty substantially, need for proper consideration of material
warranting such order was emphasised.
What was stated in this regard in Street Atyachar Virodhi Parishad's case. Which
was quoted with approval in paragraph 76 of State of west Bengal vs. Mohd. Khalid, 1995 (1)SCC 684
is that what the Court has to see, while considering the question of framing
the charge, is whether the material brought on record would reasonably connect
the accused with the crime. No more is required to be inquired into.
Antulay's case, Bhagwati, CJ., opined, after noting the difference in the
language of the three pairs of section, that despite the difference there is no
scope for doubt that at the stage at which the Court is required to consider
the question of framing of charge, the test of "prima facie" case has
to be applied. According to Shri Jethmalani, a prima facie case even be said to
have been made out when the evidence, unless rebutted, would make the accused
liable to conviction. In our view, better and clearer statement of law would be
that if there is ground for presuming that the accused has committed the
offence, a court can justifiably say that a prima facie case against him
exists, and so, frame charge against him for committing that offence".
Let us note the meaning of the word "presume". In Black's Law
Dictionary it has been defined to mean "to believe or accept upon probable
evidence". (Emphasis ours).
Shorter Oxford English Dictionary it has been mentioned that in law "presume"
means "to take as proved until evidence to the contrary is forthcoming"
, Stroud's Legal Dictionary has quoted in this context a certain judgement
according to which "A presumption is a probable consequence drawn from
facts (either certain or proved by direct testimony) as to the truth of a fact
alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the
same quotation finds place at page 1007 of 1987 edition.
aforesaid shows that if on the basis of materials on record, a court could come
to the conclusion that commission of the offence is a probable consequence, a
case for framing of charge exists. To put it differently, if the Court were to
think that the accused might have committed the offence it can frame the
charge, though for conviction the conclusion is required to be that the accused
has committed the offence. It is apparent that at the stage of framing of
charge, probative value of the materials on record cannot be gone into; the
materials brought on record by the prosecution has to be accepted as true at
is the effect of lapse of TADA ? -------------------------------------
the written submissions filed on behalf of appellant Moolchand, it has been
urged that TADA having lapsed, section 1(4) which saves, inter alia, any
investigation instituted before the Act had expired, itself lapsed because of
which it is not open to the prosecution to place reliance on this sub-section
to continue the proceeding after expiry of TADA.
find no force in the aforesaid submission and would refer in this connection to
a recent three-Judge Bench Mahasrashtra, JT 1996 (1) SC 114, in which it has
been clearly held that in view of section 1(4) of the Act, the farmers of the
Act had desired that even after its expiry, the proceeding initiated under the
Act should not come to an end without the final conclusion and determination,
which have, therefore, to be continued in spite of the expiry of the Act.
According to the Bench, there is indeed no scope for a controversy as to
whether any investigation, inquiry, trial in respect of any offence alleged
under TADA shall come to end as subsection (4) of section (1) protects and
keeps alive such investigation and trial.
ASPECTS OF THE APPEALS
The Legal question having been examined, we may advert to the facts of each
appellant to decide whether a prima facie case against him exists, requiring
framing of charge, as has been ordered. Before we undertake this exercise, it
may be pointed out that the learned Designated Court in his impugned judgment, instead of examining the merits
of the prosecution case qua the charged accused, has given reasons as to why he
discharged 26 accused. A grievance has, therefore, been made by all the learned
counsel appearing for the accused that this was not the legal approach to be
adopted. We find merit in this grievance inasmuch as the impugned order ought
to have shown that the Designated
Court applied its
judicial mind to the materials placed on record against the charged accused.
This was necessary because framing of charge substantially affects the liberty
of the concerned person. Because of the large number of accused in the case
(and this number being large as regards charged accused also), the court below
might have adopted the approach he had done. But we do not think it was right
in doing so. Be that as it may, now that we have been apprised by the
prosecution regarding all the materials which were placed before the Designated
Court against each of the appealing accused, we propose to examine, whether on
the basis of such materials, it can reasonably be held that a case of charge
exists. We would do so separately for each of the appellants.
this stage, it may be pointed out that the trial court has, apart from framing
individual charge, framed a general charge. Which, after naming all the 127
charged accused, reads as under :
the period from December, 1992 to April, 1993 at various places in Bombay,
District Raigad and District Thane in India and outside India in Dubai (U.A.E.)
Pakistan, entered into a criminal conspiracy and/or were members of the said
criminal conspiracy whose object was to commit Terrorist Acts in India and that
you all agreed to commit following illegal acts namely to commit terrorist acts
with an intent to overawe the Government as by Law established, to strike
terror in the people, to alienate sections of the people, to adversely affect
the harmony amongst different sections of the people i.e. Hindus and Muslims by
using bombs, dynamites handgranades and other explosives substances like RDX or
inflammable substances or fire-arms like AK-56 rifles, Carbines, Pistols and
other lethal weapons in such a manner as to cause or as likely to cause death
of or injuries to any person or persons, loss of, damage to and destruction of
private and public properties and disruption of supplies of services essential
to the life of the community, and to achieve the objectives of the conspiracy,
you all agreed to smuggle fire-arms, ammunition, detonators handgranades and
high explosives like RDX into India and to distribute the same amongst
yourselves and your men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all these arms ammunition
and explosives at such safe places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and achieving the objects
of criminal conspiracy and to dispose off the same as need arises. To organise
training camps in Pakistan and in India to import and undergo weapon
training in Handling of arms, ammunitions and explosives to commit terrorist
acts. To harbour and conceal terrorists/co- conspirators, and also to aid, abet
and knowingly facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance financial or
otherwise for accomplishing the object of the conspiracy to commit terrorist
acts, to do and commit any other illegal acts as were necessary for achieving
the aforesaid objectives of the criminal conspiracy and that on 12.3.1993 were
successful in causing bomb explosions at Stock Exchange Building, Air India
Building, Hotel Centaur at Santacruz, Zaveri Bazar, katha Bazar, Century Bazar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgranades
at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and property worth about Rs.
27.0 Crores destroyed, And attempted to cause Bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within
thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987
and Section 120 (B) of Indian Penal Code read with Sections 3(2) (i), (ii),
3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326,
324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Section
3 and 7 read with Section 25 (1A), (1B), (a) of the Arms Act, 1959, Section
9-B(1), (a), (b), (c) of the Explosives Act, 1884. Section 3, 4(a), (b), 5 and
6 of the Explosive Substances Act, 1908 and Section 4 of Prevention of Damage
to Public Property Act, 1984 and within my cognizance.
The specific charge relating to this appellant is as below :
addition to Charge First you accused Abu Asim Azmi is also charged for having
committed the following offences in pursuance of the criminal conspiracy in
that you Abu Asim Azmi in pursuance of the aforesaid criminal conspiracy
conspired advocate advised abetted and knowingly facilitated the commission of
terrorists act and acts preparatory to terrorists act i.e. bomb blast and such
other act which were committed in Bombay and its suburbs on 12.3.93 by agreeing
to do any by doing the following overt acts.
That you sent Sultan-E-Rome Ali Gul, Mohmed Iqbal Ibrahim, Shakeel Ahmed, Shah Nawaz
Khan s/o Faiz Mohmed Khan, Abdul Aziz, Manzoor Ahmed Mohmed Qureshi, Shaikh Mohmed
Ethesham and Mohmed Shahid Nizamuddin Qureshi, to undergo weapon training at
Pakistan in furtherance of the objectives of the aforesaid criminal conspiracy
by booking their tickets out of your own funds through M/s. Hans Air Services
which was done by your firm M/s. Abu Travels and that you thereby committed an
offence punishable under section 3(3) of TADA (P) Act, 1987 and within my
The aforesaid shows that the individual charge against bu is that he had done
the act of booking the tickets of the persons named in the charge; and this was
done from his own funds through M/s. Hans.Air Services. Learned Addl.Solicitor
General states that the financial assistance by this appellant would attract
the mischief of Section 3(3) of TADA which, inter alia, punishes abetment of a
would be so because of the enlarged definition of "abet" as given in
section 2 (1) (a), whose clause (iii) makes rendering of any assistance,
whether financial or otherwise, to a terrorist, an act of abetment. Our
attention is also invited to section 21(2) which has provided that in a
prosecution for an offence under section 3(3) of the Act, if it is proved that
the accused rendered any, financial assistance to a person accused of, or
reasonably suspected of, an offence under that section, the Designated Court
shall presume, unless the contrary is proved, that such person has committee of
the offence under that provision.
Rajinder Singh, appearing for this appellant, did not consider it necessary to
contest the aforesaid legal position. His sole contention is that the materials
sought to be relied on by the prosecution in alleging that Abu had booked
tickets out of his own funds, which is the gravamen of the charge, has no legs
to stand inasmuch as there are materials galore to show that the fund for
booking the 11 air tickets for Dubai had come, not from the fund of the
appellant, but the money had been made available to the firm of the appellant,
named Abu Travel Agency, by one Maulana Bukhari about which Shamim Ahmed
working as cashier in the firm has stated. His statement during investigation
was that on 21.1.1993 two persons had come to his office and handed over a sum
of Rs.1.15 lacs along with 11 passports by saying "Bukhari Saheb Ne Bheja Hai"(Bukhari
Saheb has sent). This was pursuant to the talk Shamim earlier had with Bukhari
who had inquired as to whether the firm of the appellant could arrange for 11
air tickets to Dubai, which was answered in affirmative.
The firm of M/s. Hans Air Services was thereafter contacted and a sum of Rs.
38.000/- was paid in cash by the appellant and Rs. 73,000/- through drafts
whose numbers are on record. It, however, happened that one ticket had to be
cancelled on 11.3.1993; and because of this an amount of Rs.9,939/- was
credited in the account of appellant's firm in the books of M/s. Hans Air
Services. It is really this entry which has been pressed into service by Shri Tulsi
to contend that the money for the journey had really been paid by the
According to Shri Rajinder Singh, the fact of aforesaid credit was not brought
to the notice of the appellant's firm. Then, as the bomb blasts took place an
the next date i.e. 12th March and as Bukhari was shot dead in the meantime, the
money could not have been returned to Bukhari.
therefore, urged that - the mere fact of the aforesaid amount having been
credited in the name of the appellant's firm in the books of M/s. Hans Air
Services cannot at all suggest, in view of the aforesaid statement of Shamim,
which wag duly corroborated by Iftikhar, who was working at the relevant time
as a clerk in M/s. Abu Travels, that the air journey of the 11 persons was
financed by this appellant. The learned counsel has also submitted that as the
Bombay Police had not asked Shamim during interrogation about the source of
money which had been paid to Hans Air Services, Shamim had made no statement
regarding that, which he had subsequently made when interrogated by the C.B.I.
contention to be advanced is that if the action of booking the tickets in
question would have been a part of tainted activity, the sum of Rs.73,000/-
would not have been transmitted to Hans Air Services through drafts.
Though it appears intriguing as to why only part of the money was sent through
bank and that too by more than one draft, the aforesaid facts brought to our
notice by Shri Rajender Singh do show that the only incriminating material,
namely, crediting the amount of Rs.9,939/- in the account of the appellants'
firm in the books of M/s Hans Air Services, is a weak circumstance to say that
the appellant might have abetted the offences in question, which is the real
charge against him. We may state that as framing of charge affects a person's
liberty substantially, as pointed out in Muniswamy's case (supra), the
materials on record must satisfy the mind of the Court framing the charge that
the commission of offence by the accused in question was probable. We do not
think if a conclusion can reasonably be drawn only from the above-noted
incriminating fact pressed into service by the prosecution that the appellant
might have abetted the offences in question. There being no material to frame
individual charge under section 3(3) of TADA, we are of the opinion that the
general charge qua this appellant has also to fail, as the only overt act
attributed to him is the aforesaid activity of booking tickets.
We, therefore, allow the appeal of this appellant, which arises out of SLP(Crl.)
No.3305 of 1995, and order for his discharge.
The individual charge against with appellant reads as below :
addition to Charge First. you Amjad Abdul Aziz Meherbux is also charged for
having committed the following offences in pursuance to the criminal conspiracy
-described in Charge First :- SECONDLY :- that you Amjad Abdul Aziz Meherbux in
pursuance of the aforesaid criminal conspiracy and during the period January,
1993 to February, 1993 knowingly facilitated the commission of terrorist act
and acts preparatory to terrorist act i.e. bomb blast and such other acts which
were committed in Bombay and its suburbs on 12.3.1993 by doing the following
overt acts :- That you permitted your co- accused Yakoob Abdul Razak Memon to
park motor vehicles laden with arms, ammunition and explosives which were part
of the consignment smuggled into the country for committing terrorist act by Mushtaq
@ Ibrahim @ Tiger Abdul Razak Memon and his associates and were brought to your
premises by co-accused Abdul Gani Ismail Turq, Asgar Yusuf Mukadam and Rafiq Madi
and also handed over suit cases containing hand granades and detonators to your
co-accused Altaf Ali Mustaq Sayed at the instance of Yakoob Abdul Razak Memon
and thereby you committed an offence punishable under section 3(3) of TADA (P)
Act, 1987 and within my cognizance.
:- That you Amjad Abdul Aziz Meherbux in pursuance of the aforesaid criminal
conspiracy and during the period 3.2.1993 onwards when arms, ammunition and
explosives were smuggled into the country for committing terrorist act by Tiger
Memon and his associates were in possession of part of the consignment i.e,
arms, ammunition, handgranades and explosives which were brought in motor
vehicles and which were parked in your compound at the instance of your co-accused
Yakoob Abdul Razak Memon and. therefore, you were in possession of these arms,
ammunition, hand granades and explosives unauthorisedly in Greater Bombay with
an intent to aid terrorists by contravening the provisions of Arms Act, 1959,
Explosives Act, 1884, Explosives Substances Act, 1908 and Explosives Rules,
1983 and thereby you committed an offence punishable under section 6 of TADA
(P) Act, 1987 and within my cognizance.
HEREBY direct that you all be tried by me on the said First Charge and Charges
framed for the over acts committed by you in curse of the same transaction i.e,
in pursuance of the
perusal of the aforesaid charge shows that the allegation against Amjad is that
he had permitted co-accused Yakoob Abdul-Razak Memon to park motor vehicles
laden with arms, ammunition and explosives in his premises; and that he was
possession of the same. Shri Tulsi contends that this possession was
"conscious" and as such in view of what has been held by the
Constitution Bench in Sanjay Dutt's case, 1994 (5) SC 910, the appellant was
rightly charged under section 3(3) of TADA. Our attention is invited by the
learned Addl. Solicitor General to the decisions of this Court in State of Maharashtra
vs. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664 and state of West Bengal vs. Mohd.
Khalid etc., 1995 (1) SCC 684, wherein possession of bomb AK-56 was held
sufficient to attract mischief of TADA.
refuting the aforesaid contentions, Shri Jain submitted that the materials on
record show the after this appellant came to know about the parking of the
vehicles, which were loaded with arms and ammunition, he immediately asked Yakoob
to remove tho jeep from his compound, as has been mentioned by the designate
Court itself in his order dated 25th September, 1993 by which he had released
this appellant on bail. The Designated Court
had further observed in this connection that this conduct showed that the
appellant was not agreeable to allow Yakoob to park his vehicles in his
compound, which showed that he had not intentionally aided Yakoob. The Designated Court had taken this view by relying on
what had been stated by this appellant in his confession, which was
sufficiently corroborated by confession of the co-accused.
Jain has, therefore, submitted, and rightly, that the conduct of the appellant
is clearly indicative of the fact that he was neither in conscious possession
of the arms, ammunition etc. nor had he aided Yakoob Memon in any way in the
terrorist act. We would, therefore, order for the discharge of this appellant
also by allowing his appeal numbered as Criminal Appeal 810 of 1994. The
general charge would also fail qua this appellant for the reason given while
dealing with the case of the appellant Abu. Raju @ Rajucode Jain
may note the individual charge against this appellant which reads as below
"In addition to charge First, you accused Raju Laxmichand Jain @ Raju Kodi,
is also charged for having committed the following offence in pursuance to the
criminal conspiracy described in Charge first:- SECONDLY:- That you accused Raju
Laxmichand Jain @ Raju Kodi in pursuance of the aforesaid criminal conspiracy
and during the period from December, 1992 to April, 1993 abetted and knowingly
facilitated the commission of terrorists act and act preparatory to terrorist
act i.e. serial bomb blast and such other acts which were committed in Bombay
and its suburbs on 12.3.1993 by agreeing to do and by doing the following overt
That you are a close associate of Mushtaq @ Ibrahim @ Tiger Abdul Razak
That you participated in smuggling, landing and transportation and explosives
(RDX) which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak
Memon and his associates which landed at Shekhadi on 3rd and 7th February, 1993
by sending your men and 4 jeeps for facilitating landing, transportation and
distribution of arms, ammunition and explosives;
That you lent Motor Scooter No.MP-14-B-5349 which was purchased by you in the
name of your ex- employee P.B. Bali to Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon
and his associates which was planted as Motor Scooter bomb at Katha Bazar on
12.3.1993 and exploded at about 14.15 hours resulting in death of 4 persons,
inuring 21 and huge loss of property worth 40 lacs; and that you thereby
committed an offence punishable under Section 3(3) of the TADA (P) Act, 1987
and within my cognizance."
Tulsi has urged that there are sufficient materials on record to bring home the
aforesaid charge. We were handed over a summary of these materials reading as
Association with Tiger Memon: Raju Kodi, being the man of confidence of Tiger Memon,
was dealing in disposal of smuggled gold and silver since long.
purchased M/scooter in April- 1992 and lent the same to Tiger Memon for
smuggling activities and the same scooter was used as scooter Bomb and exploded
at Kathya Bazar.
Registration papers of the said scooter were recovered at the instance of the Raju
Kodi under a Panchanama dt. 12/07/1993.
deposited Rs.1,61,48,000/- in the 'Hathi' account maintained by co-accused Mulchand
Shah and belonging to Tiger Memon during the period from 07/11/1992 to 4/12/1992. The
same amount was subsequently used by Tiger Memon for blast purpose. (the 'Hathi'
account note was recovered at the instance of co-accused Mulchand Sampatraj
purchased the said M/Scooter and 3 Jeeps under fictitious names.
gave his men and four Jeeps for transportation of Arms, Ammunition and RDX
landed by Tiger Memon. These Jeeps were provided with special cavities to
conceal the arms, ammunition and RDX. These Jeeps were recovered at his
instance under Panchanama dated 1/06/1993. These Jeeps were found with "traces of RDX vide F.S.L. Reports.
The accused Azgar Yusuf Mukadam is narrating in his confessional statement
about the association of the appellant with Tiger Memon and dealing with him in
smuggling activities and Hawala money
The co-accused Mulchand Sampatraj Shah is narrating in his confessional
statement about the association of the appellant with Tiger Memon and dealing
with him in smuggling activities and Hawala money.
The co-accused Salim Mira Moinddin Shaikh is narrating in his confessional
statement about tie association with Tiger Memon and his smuggling activities.
co-accused viz. Abdul Gani Ismail Turk is narrating in his confession about
association of the appellant with co-accused Tiger Memon and dealing in
smuggling activities and Hawala money.
The co-accused Imtiyaz Yunusmiya Ghavate is narrating in his confession about
association of the appellant with Tiger Memon and dealing in smuggling
activities and Hawala Money." May it be stated that for the purpose of the
present case, we cannot enter into the probative value of the statements made
by different persons in this regard tending to support the above.
The Sola submission of Shri Jethmalani was that even if this appellant had
knowledge about transportation of arms, ammunition and RDX brought by Tiger Memon,
it cannot be held in law that he played a part in the conspiracy, and so, the
charge under section 3(3) to the Act has to fail. The materials do not
establish even statement. We are afraid this submission cannot be accepted
because of the concept of conspiracy explained by us above. Any reasonable
person knowing about transportation of materials like RDX has to be imputed the
intent of its use for illegal purpose there being no material to show that RDX
can be put to any Jegal use. Further, as already held, the prosecution has no
obligation under the law to establish that the appellant had know that the RDX,
and for that matter other objectionable materials would be used for the purpose
of blasts which had taken place in Bombay. The alleged fact that the jeeps provided by the appellant had cavities
to conceal arms, ammunition and RDX. and that the Jeeps were recovered at the
instance of the appellant on 1.6.1993 in which were found traces of RDX. would
prima facie show that the appellant had aided the terrorist act in question ,
even as per the definition of the word "abet" given in section 109 of
the Penal Code. The alleged financial assistance provided would attract the
enlarged definition of abetment given in section 2(1)(a)(ii) of the Act.
Apropos the case of the persecution that this appellant kept silence despite
knowing about the aforesaid transportation form his driver, the submission of Shri
Jethmalani is that there is nothing to show as to when the appellant had know
form his driver about this fact. The learned counsel asked whether the
information was given immediately after the driver had come back or after the
bomb blasts had taken place or after he was arrested ? May we mention that the
fact of knowledge of the aforesaid transportation was know as per the
confessional statement of the appellant from his driver. The further statement
in this context is that despite knowing this he had not disclosed to anybody
about transportation , which according to the appellant was due to the fear of
police. Shri Jethmalani asked the just mentioned questions to persuade us to
hold that there was no criminality in the silence of the appellant in not
informing the police about the transportation. Even if some allowance is made
to this part of the submission of the learned counsel, the law of conspiracy. being
as explained above, a prima facie case against this appellant under section
3(3) of the Act does exist. The individual charge as well as the general
charge, therefore, must be maintained in so far as he is concerned.
appeal- the same being criminal appeal 793/95 stands dismissed.
This appellant's role in the tragedy is of a higher order inasmuch as being an
Addl. Collector of Customs, Preventive, the allegation is that he facilitated
movement of arms, ammunition and explosives which were smuggled into India by Dawood
Ibrahim, Mohmed Dosa, Tiger Memon and their associates, The Addl. Solicitor
General was emphatic that a full proof case relating to framing of charge
against him does exist. Shri Shirodkar was equally emphatic in submitting that
materials on record fall short of establishing a prima facie case against this
Let the additional charge framed against him be noted:
you Somnath Kakaram Thapa during the period you were posted as Additional Collector
of Customs, Preventive, Bombay and particularly during the period January, 1993
to February, 1993 in pursuance of the aforesaid criminal conspiracy and in
furtherance of its object abetted and knowingly facilitated the commission of
terrorists' acts and preparatory to terrorists'' act i.e. bomb blast and such
other acts which were committed in Bombay and its suburbs on 12.3.93 by
intentionally aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq
@ Tiger Abdul Razak Memon and their associates and knowingly facilitated
smuggling of arms, ammunition and explosives which were smuggled into India by Dawood
Ibrahim Kaskar, Mohmed Dosa Mushtaq @ Ibhrahim @ Tiger Abdul Razak Memon and
their associates for the purpose of committing terrorists acts by your non
interference inspite of the fact that you had specific information and
knowledge that arms ammunition and explosives are being smuggled into the
country by terrorists Preventive you were legally bound to prevent it and that
you thereby committed an offence punishable under Section 3(3) of TADA (p) Act,
1987 and within my cognizance.
According to Shri Tulsi the following materials make out the prima facie case
against this appellant:
Association with Mohd.Dosa:
has been an associate of absconding accused Mohd. Dosa, who has played a major
role in the conspiracy to cause bomb blasts. The Tel. Nos. (RES. &
official) of S.N. Thapa have been found entered in the Tel. diary seized form Mohd.
Hanif @ Raju, an employee of Mohd. Dosa.
Association with Tiger Memon:
has been an associate of Tiger Memon the prime accused in the bomb blast case,
who is still absconding. He has been facilitating the smuggling activities of
Tiger Memon against illegal gratification.
Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes:
absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a
number of include a manuscript of gist of conversation recorded on May 19, 1994
on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi
(Pakistan). Accused Yakub Memon, Syed Arif (Pakistani National) Hazi Taufique Jaliawala
(Pakistani National) Tiger Memon, Suleman Memon and Yub Memon had participated
in the conversation.
gist of conversation refers to various matter which show close association of
Tiger Memon with Sh.
In the gist of conversation there is reference of ISI of Pakistan and Tiger Memon
speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal
landing and that Tiger Memon had paid him Rs.22 lacs for allowing the
investigation had established that the said gist of conversation is in the
hand-writing of accused Yakub Memon. Independent witnesses and the handwriting
expert have proved his handwriting.
Statement of L.D. Mhatre, Mhatre Customs Inspr.:
introduced a source (witness code No.Q-3360) to S.N. Thapa and it was decided
that the source would pass on information about the illegal landings at Shekhadi
to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be
kept at "Sai Morba-Goregoan Junction" because that was the main exit
point after the landing. The source gave an information of the landing to Mhatre
on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on
the right of 30 & 31st
Jan. 1993 at Purar Phata
and Behan Phata on Mhasla-Goregoan
Road leaving another
route open for the escape of smuggled goods. He did not keep Nakabandi at the
pre-arranged point. He lifted the Nakabandi after two days without any specific
source later on informed Thapa through Mhatre that on the night of 3.2.93
instead of silver same chemicals had landed at Shekhadi. Sh.Thapa did not
contact the source to ascertain further details. Nor did he inform about it to
his senior officers. He also did not submit the Operations Report, as was
Statement of Sh.R.K. Singh:
R.K. Singh in his confession, has stated that on the night of 1.2.93 at about
2.00 At Sh.Thapa gave him a telephonic message saving that something had
happened beyond bankot in thelimits of Pune Customs and that he should
deputed custom officers for this job. On 4.2.93 another accused M.S. Syed, Customs
Superintendent informed R.K. Singh that the smuggled goods and already passed.
R.K. Singh received Rs.3 lacs as illegal gratification for the landing out of
which he gave Rs.1 lacs to Sh.S.N. Thapa.
Awareness about landing :
Bhardwaj, Collector of Customs,(Prev.) issued a letter dt. 25.1.93 addressed to
Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that
intelligence had been received that big quantity of weapons would he smuggled
into India by ISI alongwith gold and silver and these were likely to be landed
in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The
Collector of Customs had directed the subordinate officers to keep a close
watch & that all-time alert may be kept. The copy of this letter was also
endorsed to Sh.Thapa, who had seen it on 27.1.93.
addition to the aforesaid letter from the statements of the customs officer,
who had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that Sh.Thapa had
knowledge that arms were likely to he smuggled by Tiger Memon. He had infact
disclosed this information to the subordinate officers at the time of nakabandi.
was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that
landing of smuggled contrabants was about to take place near Mhaysla on the
night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message
that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh
is in a different direction and far away from Mhasala. Sh.Doyphode had not
mentioned about Bankot.
Vehicle and Vessel Log Book :
was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also
taken by Sh.Thapa with him.
the investigation had disclosed that the pages of the 109 book for the period
26.1.93 to 16.2.93 were missing from the log book, as these had been torn from
Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided.
logbook is maintained for the vessel. The investigation had disclosed that an
entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav,
Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan
to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by
J.K. Gurav, which is not correct because when compared with the entries made in
the wireless logbook of Shrivardhan Customs office it is seen that patrolling
commenced at 2345 hrs. on 2.2.93 and not on 2100 hrs. Inspr. Gurav is also an
accused in the case, and had actively conspired alongwith accused S.N. Thapa
and other customs officers."
From the above gist it appears that the main allegation to establish the case
against Thapa is his allowing the smuggling of the aforesaid goods by not doing
Nakabandi at the pre-arranged point but at some distance therefrom leaving an
escape route for the smugglers to carry the goods upto Bombay. To appreciate
this case of the prosecution, it would be useful to know the topography of the
area, as would appear from the following rough sketch handed over by Shri Tulsi:-
Tulsi contended that Thapa had been forewarned by a communication of Shri S.K. Bhardwaj,
Collector of Customs (Preventive) dated 25.1.93 addressed to S/Shri R.K. Singh
and A.K. Hassan, Asstt. Collectors of Customs, that intelligence had been
received that big quantity of weapons would be smuggled into India by Ist alongwith
gold and silver which were likely to land in next 15-30 days around Bombay, Shrivardhan,
Bankot and Ratnagiri etc., a copy of which was endorsed to Thapa, who had seen
the same. In fact he disclosed this information to his subordinate officers
also. (The fact that Thapa had received a copy of the letter, about which Shri Shirodkar
mentioned many a time, has no significance as copy was apparently sent to
apprise Thapa of the contents, requiring him to take such steps as would have
been within the ken and competence of a high custom official on the preventive
side like him). It deserves to be noted that the information was not only about
smuggling of gold and silver alone, but of weapons and that too by the ISI-an
agency alleged to be extremely inimical to India. This is not all. Indeed,
there are material on record to show that Thapa had information about landing
of RDX (described as 'Kala Sabun' in the under-world) at Shekhadi and Shrivardhan
on 3.2.93. According to Addl. Solicitor General, Thapa had facilitated the
movement or be used to receive fat sum of money from Tiger Memon as quid pro
quo for help in his smuggling activities.
Shirodkar strongly refuted the contentions of the Addl.Solicitor General and,
according to him, Nakabandi had been done at the places suggested by the local
officers like Inspectors Agarkar and Kopikar, who had better knowledge of the
place of the Nakabandi, and therefore, no fault can be found with Thapa for
having done Nakabandi at a wrong place.
the motive ascribed, the submission was that to sustain the same the only
matter is of conversation found from the possession of absconding accused Yakub
Memon who was arrested at New Delhi on 5.8.94. The conversation itself was
recorded on a cassette, which, according to Shri Shirodkar, was not at all
audible as was certified by the Doordarshan Center of Bombay. The learned
counsel would also require us to bear in mind that Thapa had been granted bail
not only by this Court on 5.9.1994, but subsequently by the Designated Court on
7.2.1795, which had been done bearing in mind the materials which had come on
record till then.
perusal of the statement made by aforesaid two Inspectors shows that they had
made two statements at two points of time. The first of these has been
described as "original statement' by Shri Shirodkar in his written note
and the second as "further statement". In the original statement,
these two Inspectors are said to have told Thapa, on being asked which would be
crucial places for laying trap, that the same were Purar Phata and Behan Phata,
at which places trap was in fact laid. But then, in the further statement the
Inspectors are said to have opined that watch should be kept at Sai-Morba-Goregoan
junction, because that was the main exit point for smuggling done at Shrivardhan
and Shekhadi. Shri Shirodkar would not like us to rely on what was stated
subsequently by these Inspectors, as that was under pressure of investigation
undertaken subsequently by the C.B.I. We do not think that the law permits us
to find out at this stage as to which of the two versions given by two
Inspectors is correct. We have said so because at the stage of framing of
charge probative value of the statement cannot be gone into, which would come
to be decided at the close of the trial. There is no doubt that if the
subsequent statement be correct, Nakabandi was done not at the proper place, as
that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay.
Shirodkar submitted that the Nakabandi was organised at Purar Phata and Behan Phata
also because a trap has to be laid at a little distance from the crucial point
so that it may not come to the notice of all and sundry, which may prove
abortive, as information about the same may be passed on to the smugglers. We
do not propose to express any opinion on this submission also, as this would be
a matter to be decided at the trial when defence version of the case would be
to the motive sought to be established on the basis of a gist of the taps
recorded conversation said to have been recovered from absconding accused Yakub
Memon, which contained the statement that one day Thapa had arrived at sea
shore at the time of illegal landing and Tiger Memon had paid him Rs. 22 lacs
for allowing the smuggling, the submission of the learned counsel is that it is
hard to believe that Yakub Memon would have carried in his pocket a gist like
the one at hand. Even if we were to give some benefit to the appellant on this
score, that would tend to demolish the case of the prosecution mainly relatable
to motive, which is not required to be established to bring home an accusation.
As to Thapa, the allegation relates to facilitating movement of arms, RDX etc.,
which act would amount to abetment, as it would be an assistance, which would
attract clause (iii) of section 2(i)(a) of the Act, defining the word 'abet'.
It may be noted that the individual charge against Thapa is for commission of
offence under section 3(3) of TADA, which, inter alia, makes abetment
Shirodkar submitted that the investigating agency wanted to rope in Thapa any
how, which was apparent from the fact that it took recourse to even
manufacturing of evidence, as telephone number of Dawood Ibrahim was fed in the
digital diary found at the residence of this appellant on search being made. Shri
Tulsi explained as to how this aspect of the matter, except observing that
investigation at times is either sluggish or over zealous - it may over shoot
All told, we are satisfied that charges were rightly framed against Thapa. This
takes us to the State's appeal arising out of SLP (Crl.) No. 2196 of 1995 in
which the prayer is to cancel the bail of Thapa, which was ordered by this
court on April 5, 1994 and then by the Desingated Court by its order dated
February 7, 1995. A perusal of this Court's order shows that when it had
examined the matter, charge-sheet had not been submitted. It was, therefore,
desired that the Designated Court should reconsider in matter with a view to
finding out whether the evidence collected in the course of investigation
showed his involvement. A perusal of Designated Court's order shows that though
according to it a case was made out by the prosecution against Thapa, it took
the view that there was want of material which could be tendered as substantive
evidence to prove association of Thapa with Tiger Memon and his associates. And
so, it allowed Thapa to continue on bail. On these special facts, we are not
satisfied if a case for cancellation of bail has been made out, despite our
taking the view that charges were rightly framed against him. The State's appeal
is, therefore, dismissed.
conclude, appeals of Abu Asim Azmi and Amjad Aziz Meherbux are allowed and they
stand discharged. Appeals of Raju @ Rajucode Jain and Somnath Thapa are
dismissed. The appeal of State is also dismissed.
Before parting, we may say that alongwith these appeals we had heard the case
of one Mulchand Shah, being covered by SLP (Crl. ) No.894 of 1995. But, by an
order passed on 31.1.1996 that SLP had been delinked from these cases, on the
prayer of counsel for Shah and was ordered to be listed separately. So we have
not dealt with that SLP.
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