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Supreme Court of India
P. SATHASIVAM & B.S. CHAUHAN, JJ.
Essa @ Anjum Abdul Razak Memon (A-3) & Others – Appellants
Versus
The State of Maharashtra, through STF, CBI Mumbai & Others – Respondents
Criminal Appeal No. 1178 of 2007 with Criminal Appeal No. 1179 of 2007 And Criminal Appeal No. 419 Of 2011 with Criminal Appeal No. 1181 of 2007 With Criminal Appeal Nos. 1127-1128 Of 2007 With Criminal Appeal Nos. 1252-1253 Of 2007 and Criminal Appeal No. 413 of 2011 with Criminal Appeal No. 1365 Of 2007 With Criminal Appeal No. 1224 of 2007 with Criminal Appeal No. 1440 of 2007 and Criminal Appeal No. 1028 of 2012 with Criminal Appeal No. 1441 of 2007 with Criminal Appeal No. 401 of 2008
Decided On : 21-03-2013
AIR 1976 SC 294 - Relied upon
(b) Criminal Trial - Recovery - From a vehicle - Liability of owner - In absence of plausible explanation, owner of a vehicle is liable for use of the same - Permission and connivance of owner is presumed. (Para 15)
(c) TADA (P) Act, 1987 - Section 3(1) - Criminal Appeal No. 1178 of 2007 - Conspiracy and involvement of convicted accused in the bomb blasts established - Conviction and sentence - No infirmity. (Paras 37 and 38)
(d) TADA (P) Act, 1987 - Section 3(3) - Criminal Appeal Nos. 1127-1128 of 2007 - Appellant’s involvement in the conspiracy from the beginning to execution including training of fire arms established - Conviction and sentence sustainable and justified. (Paras 51 and 52)
(e) TADA (P) Act, 1987 - Sections 5 and 6 - Criminal Appeal Nos. 1252-1253 of 2007 - Appellant’s possession of arms and explosives and awareness of its use established - Conviction confirmed - Sentence reduced to 10 years RI. (Paras 70 and 76)
(f) TADA (P) Act, 1987 - Sections 5 and 6 r/w Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959 - Criminal Appeal No. 413 of 2011 - Prosecution failed to establish nexus between accused A-71 and Tiger Memon in conspiracy to smuggle contraband materials and their distribution to A-71 or other co-conspirator for commission of terrorist acts in India - Appeal dismissed. (Para 71)
(g) TADA (P) Act, 1987 - Section 3(3) and Sections 120-B, 307, 435 and 436 r/w section 511 IPC and sections 4(b), 9B(1)(b), Explosive Substances Act, 1908 - Criminal Appeal No. 1365 of 2007 - Charges fully established - Conviction justified - Considering age and ailments of appellant sentence reduced to period undergone. (Paras 88 and 89)
(h) TADA (P) Act, 1987 - Section 3(3) and Section 120-B of IPC - Criminal Appeal No. 1224 of 2007 - Charges cumulatively established - Appellant proved to have misused his official position to knowingly facilitate terrorist act - Conviction and sentence confirmed. (Paras 122 and 123)
(i) TADA (P) Act, 1987 - Section 15 - Criminal Appeal No. 1440 of 2007 - Confessional statement recorded after following all safeguards u/s 15 - No infirmity. (Para 137)
(j) TADA (P) Act, 1987 - Section 3(3) and 6 r/w Section 120-B, IPC; section 3 and 7 r/w sections 25(1-A) and 25(1-B)(a), Arms Act, 1959 - Criminal Appeal No. 1440 of 2007 - Involvement of Appellant A-25 in landings at Shekhadi and his possession of contraband established - Guilty of all charges framed against him - Conviction and sentence confirmed. (Paras 147 and 151)
(k) TADA (P) Act, 1987 - Section 3(3) - Criminal Appeal No. 1441 of 2007 - Involvement of A-116 in landing of contraband materials at Dighy jetty established - Conviction and sentence justified. (Paras 166 and 171)
(l) TADA (P) Act, 1987 - Section 3(3) and 6 r/w section 120-B, IPC - Criminal Appeal No. 401 of 2008 - appellant’s participation in the criminal conspiracy and, more particularly, his participation in the landing of arms and ammunitions at Dighi established - Conviction and sentence confirmed. (Paras 184 and 187)
(m) Code of Criminal Procedure, 1973 - Section 164 - Confessional statement - Objection to presence of Supervising Police Officer at the time of recording - Confesssional statemenmts of other co-accused corroborating each other as well as statement of the appellant - Can be relied upon - Objections rejected. (Paras 194, 212, 214, 398, 442)
(2000) 2 SCC 254; (2001) 3 SCC 221; (2008) 15 SCC 49 - Relied upon
(n) TADA (P) Act, 1987 - Section 3(3) and 6 - Criminal Appeal No. 401 of 2008 with Criminal Appeal No. 1023 of 2012 - A-136 - Had prior knowledge of contents of the goods landed at Dighy jetty - Carried on important task of safe landing and transportation of the contraband goods to respective destinations - Coordinated with the launch transporting the contraband and negotiated with police for release of the same - Rightly convicted and sentenced. (Paras 200 and 203)
(o) TADA (P) Act, 1987 - Section 3(3) r/w section 120-B, IPC - Criminal Appeal Nos. 976-977 of 2008 - Appellants’ active involvemnent in the conspiracy and consequence of the conspiracy, viz, serial bomb blasts in Mumbai established - Conmviction and sentence confirmed. (Para 221)
(p) TADA (P) Act, 1987 - Section 3(3) with section 120-B, IPC - Criminal Appeal Nos. 976-977 of 2008 - A-64 - Received arms training in Pakistan - Actively involved in landing of contraband materials at Shekhadi and the explosions - Absconding after the explosions - His involvement in the conspiracy and the explosions established - Conviction and sentence justified. (Paras 219 to 221)
(q) TADA (P) Act, 1987 - Sections 3(3), 5 and 7 r/w Sections 148, 302, 307, 324, 436 r/w section 149, IPC; Section 25(1A) and 25(1B)(a), Arms Act, 1959 - Criminal Appeal No. 616 of 2008 - A-52 - Appellant’s active participation in various cionspiratorial acts of planning, training, prepoaration and execusion of the Mumbai blasts established - Conviction and sentence justified. (Paras 246 and 247)
(r) Indian Evidence Act, 1872 - Secxtion 8 - T.I. Parade - 10 dummies used for each accused - Similarlity of dunmmies established - No infirmity in T I Parade. (Para 260)
(s) TADA (P) Act, 1987 - Section 3(3), 3(2)(ii), ; Section 120-B, 307, 511, r/w 34 IPC; Section 4, Prevention of Damage to Public Property Act, 1984; and Sections 3 and 4, Explosive Substances Act, 1908 - Criminal Appeal Nos. 979-980 of 2008 - A-49 - Throwing of hand grenade at aircraft at Sahar airport established - Conviction and sentence justified. (Paras 261 and 263)
(t) Criminal Trial - Appreciation of oral evidence - Eye witnesses consistently deposing same facts - Minor discrepancies - Not touching the core of the subject - Not material. (Paras 276 and 279)
(2010) 12 SCC 324; (2000) 1 SCC 247; (2011) 7 SCC 295 - Relied upon
(u) Criminal Trial - Appreciation of evidence - Eye witnesses not naming or identifying the appellant (A-49) - Not material in view of confessional statements of co-accused his involvement being established. (Paras 288 and 289)
(v) Indian Evidence Act, 1872 - Section 8 - TI Parade - Contention that TI parade was improperly held - TI Parade not substantive evidence - Required only for corroboration - Witnesses identifying accused in court - Holding or otherwise of TI Parade not important. (Para 291)
(2010) 3 SCC 508 - Relied upon
(w) TADA (P) Act, 1987 - Section 3(3) r/w section 148, 302, 307, 324 and 149, IPC - Criminal Appeal No. 633 of 2008 - A-13 - Appellant’s involvement in conspiracy from planning to execution established - Conviction and sentence justified. (Paras 294 and 295)
(x) TADA (P) Act, 1987 - Section 3(3)and 6; and section 120-B, IPC - Criminal Appeal Nos. 651-652 of 2008 - A-14 - He willingly participated and assisted Dawood Ibrahim and Tiger Memon in smuggling of large quantity of weapons, ammunitions and explosives of mass destruction which ultimately resulted in huge destruction - His culpability is no less than Tiger Memon - Conviction and sentence justified. (Paras 314 and 315)
(y) Criminal Trial - Eye witness and confessional statement of co-accused - A-43 - Charged with participating in arms training - Eye witness deposing to have seen training - But not identifying appellant - Co-accused persons in their confessional statements establishing his participation in the training - Non-identification by eye witnersses not material. (Para 333)
(z) Juvenile Justice (Care & Protection of Children) Act, 2000 - Sections 20 and 7 - Retrospectivity - Age at the time of crime - Below 18 years - Crime committed prior to the act coming into force - Will have applicability - Claim of Juvenility - Can be raised any time even after attaining the age of 18 years. (Para 339)
(2009) 13 SCC 211; (2012) 10 SCC 489 - Relied upon
(aa) Interpretation of Statutes - Conflict between two special Acts - Resolution - By reference to the purpose and policy underlying the two enactments - And clear intendment of the legislature conveyed by the language of the relevant provisions of the Acts - Section 12, JJ Act providing exception barring bail - Cannot oveeride TADA Act in all circumstances. (Paras 347 and 371)
AIR 1997 SC 2013; (2007) 6 SCC 81; (2008) 4 SCC 300; AIR 1956 SC 614; AIR 1960 SC 1170; AIR 1966 SC 785; (1977) 1 SCC 750; (1978) 4 SCC 16; AIR 1980 SC 2181; AIR 1991 SC 855; AIR 2003 SC 355; AIR 1994 SC 2544; AIR 1998 SC 1601; (1987) 1 SCC 424; AIR 2012 SC 11; (1994) 5 SCC 1; (2000) 7 SCC 291; (2004) 9 SCC 741; (2009) 10 SCC 123; AIR 1986 SCC 1773; AIR 1997 SC 3021; AIR 2000 SC 2264; AIR 2005 SC 2731; (1994) 4 SCC 602 - Relied upon
(ab) Interpretation of statutes - Interpretation should be so coherent in accordance with the principles as to serve the ends of justice even handedely. (Para 377)
AIR 1978 SC 1485; AIR 1996 SC 2005; AIR 1996 SC 1669; (2011) 6 SCC 321 - Relied upon
(ac) Juvenile Justice Act, 2006 - Section 4(1) - Law for the time being in force - Law in existence on the date of commencement of the Act law which may be enacted in future - TADA not in existence at the time of commencement of JJ Act - JJ Act will not override TADA Act. (Paras 379 and 380)
AIR 1999 SC 3923; AIR 2000 SC 454 - Relied upon
(ad) Interpretation of statutes - JJ Act and TADA - Question of prevalence - TADA enacted for special purpose - Shall have precedence over all other Acts. (Paras 382)
(2004) 4 SCC 622 - Relied upon
(ae) TADA (P) Act, 1987 - Sections 3(3), 3(2)(i)(ii) and 5; sections 120-B and 148, 302, 307, 342, 436 r/w 149 IPC - Criminal Appeal Nos. 653 and 656 of 2008 - A-43 - Acts committed grave and heinous - Not entitled to protection as child - Charges proved beyond any doubt - Conviction and sentence justified. (Paras 384, 387 and 388)
(af) TADA (P) Act, 1987 - Section 3(3), 5 and 6 - Criminal Appeal No. 924 of 2008 - A-57 - Played significant role in conspiracy - Had knowledge of their intention and shared the motive of conspirators - Willingly participated in acts of recruitment for training in Pakistan - Undertook reconnaissance of BMC and stock Exchange buildings - Conviction and sentence justified. (Para 406, 411 and 412)
(ag) TADA (P) Act, 1987 - Section 3(3) - Criminal Appeal Nos. 933-936 of 2008 - A-98 - Received training in terrorist acts along with other conspirators - Absconded after explosions - Conviction and sentence justified. (Paras 430 and 435)
(ah) TADA (P) Act, 1987 - Section 3(3) - Criminal Appeal Nos. 933-936 of 2008 - A-100 - Involvement in terrorist training established - Conviction and sentence justified. (Paras 447 and 453)
Facts of the case:
The present appeals are directed against the final judgment and order of conviction and sentence dated 12.09.2006 and 27.07.2007 respectively whereby the appellants have been convicted and sentenced to rigorous imprisonment for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Finding of the Court:
Convictions and sentences are justified.
Result:
Criminal Appeal Nos. 1178 of 2007; 419 of 2011; 1127-1128 of 2007; 413 of 2011; 1441 of 2007; 401 of 2008; 401 of 2008; 1023 of 2012; 976-977 of 2008; 616 of 2008; 979-980 of 2008; 633 of 2008; 651-652 of 2008; 653 and 656 of 2008; 924 of 2008; 933-936 of 2008; 933-936 of 2008 dismissed.
Criminal Appeal Nos. 1252-1253 of 2007; 1365 of 2007; 1224 of 2007 disposed of.
Judgment :-
P. Sathasivam, J.
1) Mr. Jaspal Singh, learned senior counsel appeared for the appellants (A-3, A-4 and A-8) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
2) The present appeals are directed against the final judgment and order of conviction and sentence dated 12.09.2006 and 27.07.2007 respectively whereby the appellants have been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993. Charges:
3) A common charge of conspiracy was framed against all the co- conspirators including the appellants. The relevant portion of the said charge is reproduced hereunder:
“During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of th
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