Professional Documents
Culture Documents
In this case, accused are charged and tried under the provisions of
Terrorist And Disruptive Activities (Prevention) Act. (hereinafter
referred to as TADA(P) act).Under the provision of Section 12(2) of
the said act Designated Court is empowered to pass an order of
conviction and sentence to an accused for an offence under any
law for which he is not even charged provided, the evidence
adduced and produced before it reveals that accused has
committed such other offence.
In the circumstance, it is relevant to see as to what all are the charges
which are framed and proved against this accused and then to see as to
what all other offences are also proved to have been committed by him.
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 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 and within my cognizance.”
After accused Abu Salem was extradited and brought before this
Honourable Court, this Honourable Court, on the basis of his overt
acts was pleased to frame further charges which are thus,
4
“In addition to Charge I, you accused Abu Salem Abdul Qayoom Ansari
is also charged for having committed the following offence in pursuance
of the criminal conspiracy described in the Charge I:
SECONDLY:-
That you accused Abu Salem Abdul Qayoom Ansari in pursuance of the
aforesaid criminal conspiracy and during the period January, 1993 to
March, 1993, abetted and knowingly and intentionally facilitated
commission of terrorists acts and acts preparatory to terrorists acts i.e.
bomb blasts and such other acts which were committed in Bombay and
its suburbs on 12/03/1993 by doing the following acts.:
THIRDLY :-
That you accused Abu Salem Abdul Qayoom Ansari in the second
week of January, 1993 was in possession of Nine AK-56 Rifles,
about 100 handgrenades, some boxes of cartridges and magazines
which were brought by him from village Sansrod, near Bharuch
(Gujarat) to Bombay which is specified as notified area under
Clause (f) of sub-section (I) of Section 2 of TADA (P) Act, 1987 and
that thereby committed an offence punishable u/s 5 of TADA (P) Act,
1987 and within my congnizance.
FOURTHLY :-
That you accused Abu Salem Abdul Qayoom Ansari , in the second
week of January, 1993 with an intent to aid terrorists, contravened
the provisions of Arms Act, 1959 and Arms Rules 1962, Expolisive
Act, 1884, Explosive Substantive Act, 1908 and Explosive Rules,
1983 by participating in transportation of arms and ammunition from
6
FIFTHLY:
That you accused Abu Salem Abdul Qayoom Ansari alongwith other
co-accused in the second week of January, 1993 Transported nine
AK-56 Rifles, about 100 Handgrenades, some boxes of cartridges
and Magazines from village Sansord, Distt. Bharuch (Gujarat) to
Bombay thereby having in his possession and control explosives
substances like handgrenades with an intent and by means thereof
to endanger lives and cause serious damage to property in India
and to enable co-accused to endanger life and cause serious injury
to property, and you thereby committed offence punishable u/s 4 (b)
of Explosive substance Act, 1908 and within my cognizance.
SIXTHLY:
That you accused Abu Salem Abdul Qayoom Ansari in the 2 nd week
of January, 1993, transported nine Ak-56 Rifles, about 100
handgrenades, some boxes of cartridges and magazines from
village Sansord, Distt. Bharuch (Gujarat) to Bombay knowingly
under such circumstances as to give rise to a reasonable suspicion
that he did not have the same in his possession or control for lawful
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SEVENTHLY :
That you accused Abu Salem Abdul Qayoom Ansari, in the 2 nd week
of January, 1993 he acquired, possession and carried nine AK-56
Rifles, about 100 handgrenades, some boxes of Cartridges and
magazines unauthorizedly, which were prohibited arms and
ammunition from village Sansord, Distt. Bharuch (Gujarat) to
Bombay concealed in false cavities of a Maruti van and thereby
committed an offence punishable u/s 25 (I-A)( (I-B) (a) r/w section 3
and 7 of Arms Act, 1959 and within my cognizance.
EIGHTHLY:
Criminal Appeal No. 990 of 2006, was filed under Section 19 of the
TADA Act, challenging the charge framed by this Honourable Court
against him and also against the order dated 13.06.2006 passed by this
Court separating his trial
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Criminal Appeal Nos. 1142-1143 of 2007 were filed against the order
dated 16.04.2007 by which this Honourable Court, framed charges
under Sec. 120B, 302, 307, 387, 382 IPC and under Sec. 3(2)(i), 3(2)(ii),
3(3), 3(5) and 5 of the TADA Act against him.
Writ Petition (Crl.) No. 171 of 2006 was filed under Article 32 of the
Constitution of India seeking a) writ of Certiorari to quash the charges
framed against him b) writ of Certiorari to quash the order passed by
this Honourable Court under TADA Act dated 13.06.2006 passed in
Misc. Application No. 144 of 2006; c) writ of Certiorari to declare that
the charges framed on 18.03.2006, as violative of the Rule of
Speciality and Section 21 of the Extradition Act, 1962; (d) writ of
Mandamus to release and discharge him by quashing all the
proceedings against him; (e) writ of Prohibition prohibiting the
respondents from prosecuting him any further for the offences for
which the petitioner has not been extradited by the Court of Appeals at
Lisbon and f) writ of Prohibition prohibiting this Honourable Court from
separating his trial from the other accused whose trial was then
completed.
His grievance in the appeals and writ petition was that the criminal
courts in India have no jurisdiction to try in respect of offences which
do not form part of the extradition judgment, by virtue of which he has
been brought to India and he can be tried only for the offences
mentioned in the extradition decree.
According to him following were not the offences forming the part of
the extradition judgement,
1. Section 5 of TADA;
2. Section 6 of TADA;
3. Section 4(b) of the Explosive Substances Act, 1908;
4. Section 5 of the Explosive Substances Act, 1908;
5. Section 25(1-A) (1-B) (a) read with Section 387 of the Arms Act,
1959 and
6. Section 9-B of the Explosives Act, 1884.
While deciding those Appeals and Writ Petition Honourable Apex Court
amongst other grounds has also considered that,
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18. In the meanwhile, the appellant also filed Misc. Appeal No.
161 of 2006 seeking production of relevant record of extradition
and sought joint trial along with other 123 accused whose trial
was nearing completion.
20. This Honourable Court in its order had pointed out that the
assurances were given with respect to sentences which could be
imposed and not with respect to the offences with which he could
be tried. It was further held that the `lesser offence' in
Section 21 of the Extradition Act covers wider matters than the
phraseology "minor offence" in Section 222 of Criminal
Procedure Code. It was also held by this Honourable Court that
although the overt acts with which the appellant has been
charged may not be cognate with the ingredients of offence with
which he has been charged, however, they are lesser offences
for the purposes of Section 21 of the Extradition Act.
23. When the said order was carried in appeal before the
Supreme Court of Justice, which by order dated 13.12.2007,
remitted the matter to the Court of Appeals to enquire whether
12
After appreciating all these facts and after hearing both the parties at
length Honourable Apex Court passed an order observing therein,
“30. The contention of the appellant that he can be tried only for the
offences covered under Article 2(1) of the said Convention is
misconceived in view of the fact that he was extradited not only under
the said Convention but also in the light of the principle of reciprocity
made applicable through the application of the Extradition Act to the
Republic of Portugal. A complete reading of Article 2 of the said
Convention makes it clear that it deals not only with those accused
who commit the substantive offences as defined in Article 2(1) but also
includes all the conspirators and those who have constructive liability
for commission of the substantive offences as per Sub-section 3 of
Article 2 of the Convention, which fact has also been mentioned by the
Supreme Court of Justice, Portugal in para 9.4 of its order. Further
Sub-section (d) of Article 1(3) of the Convention makes it abundantly
clear that the explosive or lethal device means a weapon or device i.e.
designed, or has the capability to cause death, serious bodily injury or
substantial material damage through its release etc. AK-56 rifles are
the weapons/devices, which have the capability to cause death and
serious bodily injury through the release of cartridges and are covered
under the said Article. The appellant has been charged for possession,
transportation and distribution of AK-56 rifles, their ammunitions as
13
32. We are also satisfied that the Designated Judge has correctly
concluded that the appellant-AbuSalem can be tried for `lesser
offences', even if, the same are not covered by the Extradition Decree
since the same is permitted under Section 21(b) of the Extradition Act.
No bar has been placed by the Portuguese Courts for the trial of lesser
offences in accordance with the provisions contained under
Section 21(b) of the Extradition Act although Portuguese Courts were
aware of the said provisions of Extradition Act.
33. We have already highlighted how the Government of India and the
Government of Portugal entered into an agreement at the higher level
mentioning the relevant offences and the appellant was extradited to
India to face the trial. We have also noted the Notification of the
Government of India about the applicability of Extradition Act, 1962. In
the light of the said Notification, the additional charges that have
been framed fit well within the proviso to Section 21(b) of the
Extradition Act. The offences with which the appellant has been
additionally charged are lesser than the offences for which the
appellant has been extradited. To put it clear, the offences with
14
The other judge concluded the same with the additionally observing
thus,
takes care of the individual's right, the second takes care of the
rights of a sovereign State.Therefore it can be said that as long as
the facts that have been submitted before the requested State
prima facie show the guilt of the extraditee in a foreseeable and
logically consistent way, the said person can be tried on all such
counts that can be conclusively proved against him or her.
67. Therefore, I do not find any substance in the complaint
of Abu Salem.
The Honourable Apex Court of India after hearing both the parties at
length has observed thaus,
“10. In view of the above, the following points arose for consideration:
After said issue is settled by the Apex Court accused Abu Salem
filed two applications before this Honourable Court Being Exhibit
No. 307 and 353 contending therein to reframe the charge firstly
by dropping the charge u/s 201,212,324,326 and 427 of Indian
Penal Code.
Prosecution filed its say at Exh. 307-A and 353-A respectively and
opposed the said applications basically on the ground that,
1. Charge firstly is a common charge framed against all
accused for having committed an offence of conspiring to
commit several offences jointly or severally to achieve the
common object of conspiracy.
court that all evidence was not placed before the Portugal Authority
has no merit at all.
In the result this Honourable Court can convict and punish this
accused for the offences under charge firstly and secondly.
In addition to it this Honourable Court can also convict and punish
this accused for any other offence under any other enactment if the
evidence on record substantiates that he has committed such an
offence. ( Ref;- section 12(2) of TADA(P)Act.)
SUBMISSION OF PROSECUTOR: -
(1) When trying any offence, a Designated Court may also try any
other offence with which the accused may, under the Code be
charged at the same trial if the offence is connected with such
other offence.
(2) If, in the course of any trial under this Act, of any offence, it is
found that the accused person has committed any other offence
under this Act or any rule made thereunder or under any other law,
the Designated Court may convict such person of such other
offence and pass any sentence authorised by this Act or such rule
or, as the case may be, such other law, for the punishment thereof.
As the first part of the trial against several other accused in this case is
already over, the appeals against the judgement and order of this
Honourable court are also finally decided by the Honourable Apex Court
and while deciding those appeals the Honourable Apex Court has
already held to have proved certain facts, which obviously are common
for all accused in this case. As these findings have binding effect under
article 141 of The Constitution of India, Judicial discipline require that
the same are not disturbed by this Honourable Court by revisiting
those issues.
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The another angle to look at it is, this case being governed under the
provisions of Special (TADA) enactment the Honourable Apex Court in
this case is the first appellate Court and therefore has decided these
appeals after going through the complete evidence and therefore
findings by it on those issues are binding on this Honourable Court.
The third angle to look at it is, had these accused not absconded and
were available for the trial at that point of time, the said issues would
have been decided by the Apex court in common.
In this context it would be relevant here to point out that by orders dated
24.08.2009 and 22.02.2011 Honourable Apex Court has granted liberty
to the absconding accused to cross examine any of the witnesses which
were examined in the first part of this trial, by these orders Apex Court
has not allowed the Prosecution to lead the evidence afresh of those
witnesses probably with an intent to not to allow the Prosecution to
improve its case, therefore it can be safely concluded that by these
orders Honourable Apex Court has not given any liberty to accused
to disturb the findings already given or to improve the case but it’s
only an opportunity to him to prove that he has neither played any
role in this offence nor is he a part of the conspiracy which is held
to have been proved.
ii. The Appellant (A-41) was asked to arrange a garage, and hence
searched for an appropriate garage with co-accused Salim, Hingora
(A-53) and his partner Haneef.
iii. The Appellant was introduced to co-accused Sanjay Dutt (A-117) at
the residence of the latter.
iv. The Appellant witnessed the handing over of contraband to the co-
accused (A-117).
v. The Appellant was in conscious possession of certain contraband
items.
vi. The recovery of the contraband material which was effected upon
the making of a disclosure statement by the Appellant, took place at a
dumping ground for waste.
23. The Designated Court convicted the Appellant (A-41) on the basis
of the evidence as has been hereinabove stated. We find no cogent
reason to interfere with the decision of the Designated Court. The
appeal is hereby, accordingly dismissed.”
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 him (A-
41). The said goods were not taken back by Salem as promised, so he
(A-41) contacted Salem to take it back. A-41 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 goods 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 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,
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 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 28 th of March 1993. After
his arrest, the father of A-41 obtained the bag which he had kept with
Ayub through Haji Ismail and produced it before the police.”
iv) Anis Ibrahim (AA) became a member of his Video Library and was
referred to by everyone as Anisbhai since he was the brother of Dawood
Ibrahim.
v) A-53 received a payment of Rs. 21.90 lacs from Ayub Memon sent
through someone on 13.03.1993 (one day after the blasts) as advance
for purchasing rights of films.
vi) A-53 had visited Dubai and met Anis Ibrahim many times and sold the
rights of many films to M/s. Kings Video, managed by Anis. Anis also
controls A1-Mansoor Video Company through Chota Rajan.
vii) On 15.01.1993, A-41 and A-139 met A-53 at his office. Anis Ibrahim
called him from Dubai and said that A-41 and A-139 are his men and
they have some weapons which have to be delivered to A-117 at his
residence.
viii) A-53 and A-139 went to Sanjay Dutt's (A-117) house where he
hugged Abu Salem and asked him about the weapons. A-117 then told
A-139 to bring the weapons next day at 7 am.
ix) On 16.01.1993, A-53 led A-139 and A-41 to the house of Sanjay Dutt.
A-139 and A-41 were in a blue maruti van while A-53 was in his own car.
x) At the residence of A-117, A-53 saw that the blue van was containing 9
AK-56 rifles and hand grenades and they gave 3 AK-56 rifles and some
magazines to A-117. A-117 also asked for some hand grenades which
were put in a black bag by A-139.
xi) A-139 kept the rifles in a fiat car belonging to A-117. The hand
grenades were kept in the car of A-53 and he left the car at A-117's
residence and took an auto rickshaw.
xii) A-53 collected his car from A-117's residence after 3 days when he
called him and said that grenades have been taken out.
Confessional statement of Baba @ Ibhrahim Musa Chauhan (A-41)
On the basis of the excerpts from the appeals submitted at the time of
oral arguments and extracts reproduced herein before it can be safely
said that Apex Court in this case has held that following points are
proved by the Prosecution,
9. Some of the accused were sent to Pakistan via Dubai for imparting
them training of use of the sophisticated arms and ammunitions
which were clandestinely brought in India in those three landings.
10. Some of the accused were imparted with the weapon training
in India by using the weapons which were clandestinely imported
in India in those three Landings.
13. In this offence 257 people were killed, 713 were grievously
injured and there was damage to the public and private properties
to the extent of 27 crores.
14. Though Apex Court has held that there were 77 confessions
which are voluntary and truthful and therefore are admissible in
evidence, Apex Court has relied upon 69 confessions against the
makers and their co-accused.
C. For that meeting, they had called all leaders of almost all gangs of
criminals who were then operating in the city of Bombay and its
suburbs which included Dawood Ibrahim, Anis Ibrahim, Tiger
Memon, Eijaz Pathan and others.
_________________________________________________________
Evidence of PW-1 and PW-2 (approvers) clearly establish the
conspiracy which was hatched in this case.
‘A’ Conspiracy
81. The law on the issue emerges to the effect that conspiracy is an
agreement between two or more persons to do an illegal act or an act
which is not illegal by illegal means. The object behind the conspiracy is
35
The Honourable Apex court while deciding the appeals in our own
case at para 78 onwards has observed that,
Thus, as per Section 10, the following principles are agreed upon
unanimously:-
“81. The law on the issue emerges to the effect that conspiracy is
an agreement between two or more persons to do an illegal act or
an act which is not illegal by illegal means. The object behind the
conspiracy is to achieve the ultimate aim of conspiracy. In order
to achieve the ultimate object, parties may adopt many means.
Such means may constitute different offences by themselves, but
so long as they are adopted to achieve the ultimate object of the
conspiracy, they are also acts of conspiracy. For an offence of
conspiracy, it is not necessary for the Prosecution to prove that
conspirators expressly agreed to do an illegal act, the agreement
may be proved by necessary implication.It is also not necessary
that each member of the conspiracy should know all the details
40
Though PW-1 and PW-2, approvers in this case, have not directly
named this accused they have established the case of the
Prosecution about the main conspiracy and roles played by some
of the co-accused.
10. The said arms and ammunitions were used for imparting
weapon training to the co-accused at Sandheri hilocks.
From the above points it is clear that the case of the Prosecution
against this accused is, that he has played major role in hatching of
conspiracy and achieving the object of conspiracy. He has
transported the part of the consignment of arms and ammunitions
from Bharuch to Bombay and then distributed those arms and
ammunitions to men of his confidence.
Prosecution has proved the said part on the basis of the evidence
of Confessions of co-accused Eijaz Pathan, Mechanic Chacha,
Salim Kutta, Jameer Kadri, Firoz Abdul Rashid Khan, Customs
officers, Police officer Patil and several others which are
corroborated by the depositions of the independent witnesses and
documents produced by them which again is further corroborated
by the recoveries of the arms and ammunitions and FSL reports.
As per Apex court verdict in our case, PW-1 and PW-2 has fulfilled
the first requirement of section 10 of Evidence act ( part of that
verdict is already quoted herein before.) therefore, now as per
43
It is to be seen that there are three conditions in the Section. One is,
before utilizing the section for admitting certain statements of the co-
accused from a confession, there should be a reasonable ground to
believe that two or more persons have conspired together to
commit an offence or an actionable wrong. According to this
Section, only when this condition is satisfied in a given case, then only
the question of utilizing the statement of an accused against the co-
accused can be taken into consideration.
Thus, as per Section 10, the following principles are agreed upon
unanimously:-
139) met him at his office on 14th Road, Khar and passed on
the message of Anees Ibrahim(Abs) to see Samir Hingora for
handing over some weapons to Sanjay Dutt(A-117). After
about 5 minutes Anis telephoned him from Dubai saying that
Baba Chauhan and Salem are his men. They will bring a
vehicle loaded with weapons. Anees directed him to make
arrangements for off loading and handing over weapons to
Sanjay Dutt and the remaining will be taken by Baba Chuhan
and Saalem (A-139) for distribution to other persons.
Salem told him that a white coloured Maruti van with Gujarati
Registration No. was parked near Arsha Shopping Centre and
directed him to take that van and reach o/o Magnum. He also
gave key of the van. Salem went ahead in his blue coloured
Maruti.
12. He has further confessed that, Salem told him that for
2/3 days Salem would keep 2/3 AK-56 rifles with him and he
was asked to remain at his residence so that Salem may pick
him up whenever convenient to him or Salem would tell him at
what time to go.
14. Baba has further confessed that, After 2/3 days Salem
returned to Bombay and came to him with his brother Kalam.
He enquired whether 2 Rifles and 6 magazines were given to
Salim Kurla. he told Salem in affirmative and then he told him
that 1 rifle, 25 hand-grenades and remaining bullets and 10
magazines were remaining with him upon which he told
Salem that he should take those away. Salem told him he
would come in the evening and take the goods. But Salem did
not turn that evening and not even for the next two days.
had clear knowledge about the main conspiracy and is one of the
main conspirators and executors of the main conspiracy and
therefore he can be termed as ‘Archer’ as per the distinction made
by the Apex Court in its judgement in appeals.
2. His father was a lawyer. When he was 6-7 years old his father died
in an accident.
4. He came to Mumbai in 1983 -84 and stayed with his Cousin Akthar
Ali Ansari and worked in his shop, at Musafir Khana.
9. In January 1993 riots broke out in Mumbai and during one of those
days Aziz called him to his shop at Mahim. He went there. Aziz told
him to go along with him to purchase silver. He did not name the
place.
10. Aziz told him that they will go to purchase silver and he will
also give him some of the silver and so he was ready to go with
him.
11. Aziz and he started from Mahim in a white Maruti which was
driven by a Gujarati Boy. He doesn’t know the name of the boy nor
the number of the car he can’t even say as to whose car it was.
13. Aziz told him after 1 ½ -2 hrs. that in a short while a white
Maruti van will bring silver and that he should take the keys of the
van and hand over the keys of the Maruti Car to the driver of the
van.
14. The Gujarati Boy and he came out and waited for the van.
After some time a white Maruti van with Gujarati number plate
came outside the Hotel. Inside the van a 40 year old man and the
women were seated.
15. The man came out and handed over the keys of the van to
the Gujarati Boy and took the keys of the Maruti Car from him.
55
After this the man went away with the women in the car. At that
time he did not know the name of the person.
16. After they left, he went inside and told Aziz that van has
arrived. After some time all three of them started for Mumbai. On
the way he asked Aziz as to who had bought the van. Aziz told him
that it was Riyaz Siddique (accused before the court) from
Mumbai. Before this he had not seen Riyaz. The Gujarati boy
drove the van till Mumbai.
17. After reaching Mumbai they all went to Mahim along with
Aziz and the Gujarati Boy. Aziz Seth told the Gujarati boy to take
the vehicle and go to Andheri and to park the vehicle outside Arsha
Shopping Centre and also to leave the keys inside it.
24. Sanjay Dutt, Baba and Hingora picked up the rifles etc.
from the car and looked at them. After this Sanjay Dutt picked
up 2-3 rifles some hand grenades rounds and magazines.
Other 3 rifles, some magazines, some hand grenades and
some rounds were picked up by Baba Chouhan. He does not
remember whether Sameer also took some weapons or not.
The remaining weapons were put back in the car sides and
flooring using the tools by Baba and me, After this Baba and
Sameer left and as per Aziz direction he also came to the shop
at Mahim. He left the Maruti Van outside the shop.
26. After leaving the van at Mahim he had phoned Aziz and
asked him as to what is all this because he had not told him
anything about the weapons.Aziz had told him that there is
nothing to worry and that all these goods were of Anees Bhai
and Qayoom.
27. He also told him to keep his mouth shut. Later he came to
know that, the goods belonged to Anees Ibrahim Kaskar and
his dear friend Qayoom, Aziz Seth was a special friend of Anees
Bhai. Because of all these he kept quiet.
28. The bag which Sanjay Dutt gave him Aziz told him to
hide the bag for 2-3 days and also to keep the bag at the
house of Zaibunisa Kazi at Bandra and that this was informed
57
29. Aziz Seth told him after 1 or 2 days to take the weapons
from Zaibunisa and keep it some were else or with himself. He
told him that he cannot keep it, so he asked him to keep it
with any of his friends for a day.
32. Since Ayub Patel was his friend he had kept the bag with
himself. Manzoor Ahmed was with him when the bag was
given to Ayub Patel and the bag was not taken back by him.
36. As per the direction of the Aziz he went to Dubai by the end
of 1993 from Delhi Airport on that passport and started living
at Aziz’s house. After staying in Dubai he went to USA.
A. Sometime in the January when there were riots, He and Ajiz had
planned to go for bringing silver, on that day, after He and Ajiz left
from Bombay i.e. after 2-2 ½ hrs, somewhere after Bhivandi, they
reached a Hotel by the side of the road and took a room on rent
where they rested. Aziz told him after 1 ½ -2 hrs. that in a short
while a white Maruti van will bring silver and that he should take
the keys of the van and hand over the keys of the Maruti Car to the
driver of the van.The Gujarati Boy and he came out and waited for
the van. After some time, a white Maruti van with Gujarati number
plate came outside the Hotel. Inside the van a 40 year old man
and the women were seated. The man in the van came out and
handed over the keys of the van to the Gujarati Boy and took the
keys of the Maruti Car from him. After this the man went away with
the women in the car. At that time he did not know the name of the
person. After they left, he went inside and told Aziz that van has
arrived. After some time, all three of them started for Mumbai. On
the way he asked Aziz as to who had bought the van. Aziz told him
that it was Riyaz Siddique from Mumbai.
2. After alighting from car Abu Salem and Haider got engaged in
some talk. After some time,Abu Salem and Haider asked him
whether he was willing to accompany them to Bharuch on the
next day morning and he agreed.
5. Abu Salem told them that they were to leave in the morning in a
van with “chorkhanas” (secret compartments) which will be
brought by Riyaz Siddiqui from Bombay. They stayed in the
Maharaja Hotel that night.
7. He, Abu Salem, Haider, Mehendi Hasan and one person known
as Sheth sat in the said van, Abu Salem told them that the
said car was belonging to Riyaz and was sent by him.
8. Then, they sat in the Maruti van and went towards Bharuch
highway.
4. On their way back, Riyaz Siddiqui informed him that the van
and money was handed over by him to accused Abu
Salem,Man of Anees and Ajiz. Abu Salem would keep the
"Saman" (in gang language ‘saman’ is the synonym used
for Weapons Ref; Confession of Salim Kutta) in the
cavities and return to Mumbai. They reached Mumbai in the
evening.
Sameer and Hanif talked to Sanjay and on asking, said that the
things will be brought on next day morning. On the same day, at
night Aziz seth asked him to go to Sanjay Dutt house in the Maruti
Van along with Sameer and Hanif and also Baba Chouhan who
was the brother in law of Aziz Seth.
62
Sanjay Dutt, Baba and Hingora picked up the rifles etc. from the
car and looked at them. After this Sanjay Dutt picked up 2-3 rifles
some hand grenades, rounds and magazines 3 rifles, some
magazines, some hand grenades and some rounds were picked
up by Baba Chouhan. He does not remember whether Sameer
also took some weapons or not.
The remaining weapons were put back in the car sides and
flooring using the tools by Baba and him, after this, Baba and
Sameer left. As per Aziz direction he also came to the shop at
Mahim. He left the Maruti Van outside the shop.
3. Three occupants of the van alighted from the van and told
the watchman to call Sanjay Dutt. After sometime sanjay
Dutt arrived. After talking with the occupants of the car, he
directed the PW to go to the main gate. Accordingly, he left
his post and went to the front Gate.
and whether they have come or not. Saalem told him that
the weapons have come and if Sanjay Dutt wants he can
bring just then. Sanjay Dutt told him to bring next day morning
at about 7:00 am. Saalem told Sanjay Dutt that he does not
know road to his house, upon which Sanjay Dutt persuaded
Samir to accompany Saalem next day morning.
Upon which Samir objected. Then Sanjay Dutt said he will take
it after a while.
7. That the Van which was brought by him from that place
was havingfalse cavities.(he had knowledge of cavities).
1. Eight days thereafter, Salem (A-139) again called him at his office
in the evening. Accordingly, he went and met Salem. Salem and
69
1. In the first week of April, 1993, Sanjay Dutt (A-117) left for
Mauritius for shooting. In his absence it appeared in the news
paper that Sanjay Dutt was in possession of AK-56 Rifles. Same
evening he received a telephone call from Sanjay Dutt at his
residential number. Sanjay Dutt told him that there was a
black colour bag at his residence in which he has kept
something. Sanjay Dutt told him to collect the bag from there
and destroy the contents of the bag immediately otherwise he
would be in trouble.
3. He took out the AK- 56 Rifle and cut it in to pieces with the axe
he had carried with him. Thereafter, he kept all those cut
pieces in the bag and went to Kersi Bapuji Adejania’s(A-124)
house.
7. Next day Sanjay Dutt (A-117) called him at his residence over
telephone. He told Sanjay Dutt that his instructions were
complied with.
10. He had kept the pistol with Rusi (A-125) because he wanted
to enquire from Sanjay Dutt (A-117) if the pistol was licenced or
otherwise. But he could not enquire as he remained busy in his
own work.
Thereafter, they went back to the office of PW-680 Mr. Walishetty After
about half an hour, PI Shri S.L. Patil of Dongri Police Station had
been to the office of DCB, CID at Crawford Market alongwith one
constable and they had brought one more person alongwith them.
accused Sanjay Dutt identified the said person as being Yusuf
Nulwala.
Thereafter, PW-680 asked the said person his name and he gave his
name as Yusuf Nulwala. PW-680 arrested Yusuf Nulwala in connection
with CR. No.70/93 in which he was interrogating accused Sanjay Dutt on
the said day.
office of DCB, CID was read over to panch witnesses and they signed
upon the same. Thereafter, PW-680 read the said panchanama and
after finding that the same was correctly drawn, countersigned the same.
The said panchanama was also written in English language barring the
statement made by accused Yusuf Nulwala recorded therein in
Hindi. The panchanama is at Exh.1068-B.
PW-680 asked his staff to arrange for a police vehicle. After the police
vehicle was ready, accused Yusuf Nulwala, panch witnesses, PW-680
and other police staff boarded the said police vehicle. the driver
drove the vehicle as instructed by accused Yusuf Nulwala and brought
the same to Karim Manzil on Jagannath Shankar Seth Road. the
driver halted the police vehicle in front of Karim Manzil on the said road
as instructed by accused Yusuf Nulwala and all of them alighted the said
vehicle. The said accused went on the ground floor of the said
Karim Manzil and PW-680, panch witnesses and other staff were
alongwith him. Accused Yusuf Nulwala pressed the doorbell for the flat
on the ground floor and after few moments, the same was opened by an
elderly person. Accused Yusuf Nulwala identified the said person as
being said Kersi. PW-680 asked the said elderly person his name
and the said person gave his name as Kersi Bapuji Adejania.
arrested the said person in connection with C.R. No.70/93 of DCB,
CID.
Rusi Mulla made the statement in Hindi and API Shri Joshi recorded
the said statement in the hall of the said house. API Shri Joshi had
recorded all the said events in the panchanama which he was drawing
as instructed to him by PW-680 earlier. The document marked
Exh.1068-D, as being the same panchanama drawn in the hall of flat
of Rusi Mulla at Bandra Band Stand regarding the events occurred
after they left the house of Kersi Adejania.
Thereafter, they left the said place and following the car of accused Rusi
Mulla, reached upto Marwah House on Turner Road, Bandra and
halted at the said place as accused Rusi Mulla had halted his car in front
of Marwah House. Accused Rusi Mulla took them inside the Marwah
House and pressed the door bell of the said house after they had been
in the varanda of the said house. After some time one young boy
opened the door and accused Rusi Mulla informed them that the said
person was the same Ajay Marwah. PW-680 informed said Ajay
Marwah that he was arresting him in connection with C.R. No.70/93 and
arrested him accordingly. PW-680 asked Ajay Marwah few questions
and, thereafter, asked if he wanted to tell anything and if so, then he
should say the same. Ajay Marwah went inside his house and
returned after some time alongwith the said constable. At that time
he was carrying a packet in his hand and he opened the said packet
and took out a thing which was in the plastic bag. PW-680 found
that it was a 9 mm pistol with magazine loaded in the same. PW-680
took charge of the same and took out the magazine out of the said
pistol. PW-680 found that the said magazine was loaded with bullets,
so he unloaded the same and found the same loaded with 8 bullets.
Thereafter, he loaded the empty magazine in the said pistol. PW-680
76
took charge of the said articles. API Shri Joshi had also recorded all
the said events in the panchanama drawn by him and as instructed to
him by PW-680 earlier. PW-680 also signed upon the same after he
had read the same and found that the same was correctly made. The
said document is Exh.1068-E.
The rod and the spring recovered from the possession of A-124
were sent to FSL for examination. The experts opined that the
said articles correspond to that of an AK-56 type rifle, but did not
correspond to similar components used in AK-47 rifle.
Confession of the accused Ibrahim Baba Musa Chauhan is corroborated by following evidence-
The Hon’ble Apex Court has taken the same into account in the appeal
of Ayub Patel (A-72) and observed thus –
“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 (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 16 th January, 1993 Salem
came 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 him (A-41). The said goods
were not taken back by Salem as promised, so he (A-41) contacted
Salem to take it back. A-41 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 goods were kept with a man
79
Aziz told him to hide the bag which Sanjay Dutt had given him for 2-3
days he asked him to keep the bag at the house of Zaibunisa Kazi at
Bandra and that this was informed to her earlier. He took the bag along
with Manzoor to the house of Zaibunisa and gave her the bag saying
Aziz Seth had sent the bag Zaibunisa opened the bag and said that she
had already received the message from Anees Bhai. She kept the bag
with herself.
Aziz Seth after 1 or 2 daystold him to take the weapons from Zaibunisa
and keep it some were else or with himself. He told him that he cannot
keep it, so he asked him to keep it with any of his friends for a day.
He (Abu Salem) went to Zaibunisa’s house along with Manzoor and took
the bag of weapons and left it in his car saying that next day it will be
given to Aziz. Manzoor knew about the weapons but since he was his
friend, he did not say anything and kept the bag.
After 1 or 2 days he wanted to take the bag from Manzoor and return it
to Aziz but he asked him to keep it for 1 or 2 days more. So he asked his
friend Ayub Patel staying near Ram Sham Theatre, Jogeshwari to keep
the bag and he kept it.
Since Ayub Patel was his friend he had kept the bag with himself.
Manzoor Ahmed was with him when the bag was given to Ayub Patel
and the bag was not taken back by him.
This part of his confession is corroborated by the confessions of
his co-accused Manzoor Ahmed Sayyed Ahmed (A-89)
1. Then, Sanjay Dutt(A-117) went inside his house and returned with
a blue Rexin bag in one hand and a long carton (cardboard box) in
another. Salem(A-139) opened the dicky of the vehicle and Sanjay
Dutt kept the same inside the dicky. Sanjay Dutt shook hands with
them and then went inside the house.
This evidence also establish his role in the conspiracy and his
close contacts with Anis Ibrahim on whose instructions he had
brought and distributed the weapons and ammunition in
Mumbai to achieve the object of conspiracy.
After bomb blast on 12.03.1993 he left Bombay along with his wife
Sameera to Azamgarh by train. After staying at Azamgarh for 2-3 days
he left for Lucknow. He obtained a passport in false name for himself
and Sameera through an agent.
The Passports were made in the name of Akhil Ahmed Azmi and
Sabina Azmi.
82
The Hon’ble Apex Court in our case while deciding appeals in case
of Yakub Memon v CBI (21.03.2013) reported in JT 2013 (5) SC 142,
at para 91 has observed as–
In case of S.N Dube v N.B Bhoir, Apex Court has held thus,
“28. The confessions have been held inadmissible mainly on two
grounds. The first ground given by the learned trial Judge is that the
power under Section 15 of the TADA Act was exercised either mala fide
86
The Hon’ble Apex Court while deciding appeals (in our case) in
case Yakub Memon v CBI (21.03.2013) reported in JT 2013 (5) SC
142 at para 93 has observed as–
The same view was reiterated in Raja Khima's case, and it was held
that confession made by a person accused of an offence can be
relied upon for convicting him only if the Court is satisfied that the
same was made voluntarily. Applying this principle in Bharat
v. MANU/SC/0096/1970 :State of U.P. (1971)3SCC950 , the Court
observed that "the voluntary nature of the confession depends
upon whether there was any threat, inducement or promise and its
truth is judged in the context of the entire Prosecution case and
that the confession must fit into the proved facts and not run
counter to them." The Court held that "when the voluntary
character of the confession and its truth are accepted it is safe to
rely on it. Indeed a confession, if it is voluntary and true and not
made under any inducement or threat or promise, is the most
patent piece of evidence against the maker. The Court also dealt
with the issue of retracted confession and held that "a court may
take into account the retracted confession, but it must look for the
reasons for the making of the confession as well as for its
retraction, and must weigh the two to determine whether the
retraction affects the voluntary nature of the confession or not. If
the court is satisfied that it was retracted because of an
afterthought or advice, the retraction may not weigh with the court
if the general facts proved in the case and the tenor of the
confession as made and the circumstances of its making and
withdrawal warrant its user....Therefore, it can be stated that a true
confession made voluntarily may be acted upon with slight
evidence to corroborate it, but a retracted confession requires the
general assurance that the retraction was an afterthought and that
the earlier statement was true.”
92
Retracted Confessions:
“38. It has been contended that since the confession of the Appellant
- Sanjay Dutt (A-117) has been retracted, hence, it is not trustworthy
and it would not be safe to place reliance upon it. It is settled law that a
voluntary and free confession, even if later retracted, can be relied
upon.
39. In the case of the Appellant - Sanjay Dutt (A-117), the retraction
statement was not made at the first available opportunity. After the
recording of his confession, within 10 days, the accused was released
on bail by the High Court, and the accused remained free for a
93
accused, held that the retracted statements can be used against the
accused as well as the co-accused provided such statements were
truthful and voluntary when made. In the said case, two accused
persons made confessional statements and, subsequently, they
retracted from their statements. This Court observed:
87. A confessional statement given under Section 15 of TADA shall not
be discarded merely for the reason that the same has been retracted...
It is pointed out that the confession in the present case was truthful
and voluntary and has been recorded after strictly following the law
and the prescribed procedure, the subsequent retraction and denial of
such confessional statements in the statement of the accused under
Section 313 was only as a result of an afterthought.”
4 At 7:00 / 7:30 pm, Anis telephoned and told Salem to go to the o/o
Magnum Video and meet Samir (A-53). Accordingly, they went to
Magnum office which was near Chappan bhog sweet shop,
Santacruz. When Sameer saw them he came out and they went by
Salem’s Maruti 800, blue coloured car scouted Pali Hill area,
Bandra looking for garages but Salem did not approve of any.
Then Sameer telephoned his partner, Hanif and after some time
they picked up Hanif from his flat near Mithun Chakraborty’s flat at
Pali Hill. When Samir told Hanif about the requirement of garage,
Hanif also searched for 2-3 garages. Thereafter, it was 09:00/9:30
pm and both Samir and Hanif quarrelled amongst each other and
abused each other. At Salem’s instance, Salem, Samir and Hanif
(Dead) spoke to Anis over telephone to Dubai from star
communication centre, Pali Hill the bill for which was Rs.
1200/1300 which was paid for by Hanif. Thereafter, they decided to
continue searching for garages on the next day. Salem told him
that for 2/3 days Salem would keep 2/3 AK-56 rifles with him
and he was asked to remain at his residence so that Salem
may pick him up whenever convenient to him or Salem would
tell him at what time to go. He took an auto rickshaw and went to
his own house. Salem and Sameer went together and Hanif left for
his home.
5 On 16.01.1993, Salem came to his house at the time of “Ajaan”.
Therefore, he told Salem that he would join him after the ‘Namaz’.
Upon which Salem told him that a white coloured Maruti van
with Gujarati Registration No. was parked near Arsha
Shopping Centre and directed him to take that van and reach
o/o Magnum. He also gave key of the van. Salem went ahead in
his blue coloured Maruti.
6 At 6:30/ quarter to 7:00 am, he went to o/o Magnum, Salem was
sitting in Sameer’s car. He got down and satin the van. Then he in
the van followed the car of Sameer towards Sanjay Dutt’s house
and then Sanjay Dutt was called down. Sanjay Dutt hugged
Salem and Samir. Salem introduced him to Sanjay Dutt. Sanjay
Dutt chided (Hindi: daanta) him because they were to come at 6:00
am but ended up going at 7:30. Salem told him that Baba had
gone for Namaz and thus they were late. Thereafter, Sanjay Dutt
asked the two Police Constables (PW-218, 219) who were at the
gate and at the lobby to sit at a distance elsewhere. Thereafter
97
told her that Salem had kept some computer parts with him which
he wanted to return. Upon which she told him that she will call him
back after 1/2 days once Salem returns.
9 In the evening on the same day, he went to Salem’s residence in
Al-Macca building, Millat Nagar, Lokhandwala and told Salem’s
wife that if in 1/ 2 days Salem failed to take the goods back then he
would throw them away. Then on the same night, at 10:30 / 11:00
pm, Salem called him from Dubai and told that he was returning
after 1/ 2 days. He would collect the same himself on returning
from A-41. Since Salem did not come, A-41 telephoned his
brother-in-law at Dubai and asked him to contact Salem and ask
him to collect his goods. His brother-in-law informed him that
Salem is returning to India the next day and would contact him on
returning.
10 On the day when riots in Behram Pada took place Shri Pawar,
DCP had also visited the spot. On the very night at 02:30/3:00 am
Salem telephoned him. Anis also spoke to him. He was asked
to give 2 ‘guitars’ and 6 ‘tars’ to Salim Kurla. He was also
asked to give some “Kadis”. When he told that “Kadis” are
already attached to the “Zadu”. On this he was told to give 6
“tars”. He also told them that he does not know Salim Kurla
(dead). Upon which Anis told him that Salim Kurla knows him and
Salim Kurla would come in front of his house near Andheri Post
office. Accordingly, he handed over 2 Rifles, 6 loaded
Magazines, which were in his bag, to Salim Kurla. Salim
Kurlahad come in a brown coloured Maruti van and there were
2/4 men in that van as well. Salim Kurla further told him that
Anisbhai had told him over the phone to deliver these 2 Rifles
and 6 magazines to somebody from Behrampada, while
discussing Salim Kurla told him that he had sent(men) to
Dubai and Pakistan for Training. When Salim Kurla enquired
with Baba if had been for training too, on which A-41asked
Kurla as to what type of training. In reply, Salim Kurla kept
quiet. Salim Kurla waited for 5/10 minutes, A-41 ordered tea etc
for Salim Kurla from nearby located Ramy Club. Thereafter Salim
Kurla left.
11 After 2/3 days Salem returned to Bombay and came to him
with his brother Kalam. He enquired whether 2 Rifles and 6
magazines were given to Salim Kurla. A-41 told Salem that 1
99
saw that Ayub in the blue Maruti 1000 car and took a turn from
Sangam Motor Training School, and brought it near his house.
Ayub parked the car in between his house and Arsha
shopping centre where Salem and his friend, Manzoor (A-89)
were waiting. Manzoor had one rifle in his hand (one that Ayub
had given him) at the time of arrival of blue colour car. Manjur
kept that bag in the dicky. Thereafter he went home.
14 After observing 7th or 8th day Roza, Salem telephoned him at
8:00/ 8:30 Salem and Ayub came by Bajaj Chetak scooter and
asked him to give the remaining goods. He told them that the said
goods were kept at another place. He gave Salem 30 loaded
magazines which he kept in the front side box and in the side
dicky of their scooter and then they left.
15 Thereafter Salem did not meet him. After the Bomb Blasts, Salim
Kurla (dead) was arrested and on his information, Police arrested
him also around 28th March, 1993. After his arrest, his father
collected the goods kept with Iqbal Tunda through Haji Ismail
and handed it over to the Police.
16 He knew that those weapons would be used against Hindus in
the riots in the future. But he never had such an intention. He
was used by these people for their ulterior motives by giving him
assurance that the weapons and ammunition would be taken away
in 2/3 days time.
His confession is corroborated by the recovery at his instance (i.e.
Baba Musa Chauhan (A-41) from Chauhan Motor Driving School in
the vicinity of Andheri Bus Terminus on S.V Road from the rear side
of the Motor Training School and removed a blue rexin bag from a place
used for dumping waste from a concrete structure closed from 3 sides in
a place adjoining a wall on a disclosure of which was made through
memorandum panchanama at Exh. 171. The Articles were seized under
seizure panchanama at Exh. 172 in presence of independent panch
witness PW-45 Laxman Karkera by PW-596 Police Officer Mr. HB
Pawar. The same were sent for analysis by PW 662 Mr. Kulkarni and he
rifle was found to be in working condition. This recovery and the
scientific findings regarding the same have been given their due impetus
in the final judgement of this Hon’ble Court in its judgment delivered in
2006/2007 in part 33 of the said judgement.
101
The Hon’ble Apex Court while dealing with the Appeal of the said
accused Ibrahim Baba Musa Chauhan (A-41) on “recovery from public
place” while deciding upon the abovestated recovery at the instance of
the said accused held –
15. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370
this Court dealt with the issue of recovery from the public place and
held:
21. The conduct of the accused has some relevance in the analysis of
the whole circumstances against him. PW 3 Santosh Singh, a member
of the Panchayat hailing from the same ward, said in his evidence that
he reached Jeet Singh's house at 6.15 a.m. on hearing the news of that
tragedy and then accused Jeet Singh told him that Sudarshana
complained of pain in the liver during the early morning hours. But when
the accused was questioned by the trial court Under Section 313 of the
Code of Criminal Procedure, he denied having said so to PW 3 and
further said, for the first time, that he and Sudarshana did not sleep in
the same room but they slept in two different rooms. Such a conduct on
the part of the accused was taken into account by the Sessions Court in
evaluating the incriminating circumstance spoken to by PW 10 that they
were in the same room on the fateful night. We too give accord to the
aforesaid approach made by the trial court.
16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar
(2002) 1 SCC 622, this Court held:
22. In the present case the grinding stone was found in tall grass. The
pants and underwear were buried. They were out of visibility of others in
normal circumstances. Until they were disinterred, at the instance of the
Respondent, their hidden state had remained unhampered. The
Respondent alone knew where they were until he disclosed it. Thus we
see no substance in this submission also.
17. In view of the above, it cannot be accepted that a recovery made
from an open space or a public place which was accessible to
everyone, should not be taken into consideration for any reason. The
reasoning behind it, is that, it will be the accused alone who will be
having knowledge of the place, where a thing is hidden. The other
persons who had access to the place would not be aware of the fact
that an accused, after the commission of an offence, had concealed
contraband material beneath the earth, or in the garbage.
Further in the same Appeal the Hon’ble Apex Court was pleased to hold
on the point of “possession of arms” by the said accused as –
102
and having failed to rebut the presumption i.e. that the same were
being for the purpose of the commission of a terrorist act, he is liable to
be convicted Under Section 5 TADA.”
The Honourable Apex Court of India has also relied upon his
confession as substantive piece of evidence against his co-
accused & finding the same to be not only substantive but also
substantial the Apex Court has convicted the following co-
accused–
1) Samir Hingora (A-53)
2) Ayub Patel (A-72)
3) Sanjay Sunil Dutt (A-117)
This Honourable Court while deciding the earlier part of trial has
extensively discussed all the issues which were raised by the defence.
106
15 After the riots, the AK-56 Rifle and ammunition remained with him
only. He decided to dispose it of but could not for one reason or
another. Thereafter, he remained busy in his routine shooting
schedules.
109
1) Evidence Of Confession :
P.W. DCP recodg. the conf. of Chief Para : 126 to 142 &
189 A-41 150,153
PK Jain Cross Para :154 to 194
P.W. DCP recodg. the conf. of Chief Para : 398 to 416
193 A-53 Cross Para :776 to 817
Bishnoi
DCP recodg. the conf. of Chief Para :475 to 494
A-89 Cross Para :600 to 668, 677 to
705,754 to 759
2) Other Evidence :
The Honourable Apex Court while deciding the first part of trial has held
that the confession of this accused is admissible in evidence & has relied
upon the same as against him in his own appeal i.e. Criminal Appeal
No. 1060 of 2007, and has gone onto convict the accused for
offence of punishable under Sections 3 and 7 read with Sections
25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI
for 6 years along with a fine of Rs. 25,000/-, in default, to further
undergo RI for a period of 6 months. However, the appellant was
not found guilty of all other offences for which he was charged and,
accordingly, acquitted for all the said.
The Honourable Apex Court of India has also relied upon his
confession as substantive piece of evidence against his co-
accused & finding the same to be not only substantive but also
114
to 753
P.W. 189 DCP who Chief Para : 140
PK Jain had to 153
recorded the
confess. of A
– 41
Cross Para : 154 to
194
This Honourable Court while deciding the first part of trial has held that
the confession of this accused as admissible in evidence & has relied
upon the same as against him in its final judgement delivered in 2006,
2007 i.e. in part 38 and in part 46 (b) page 594, paragraph 487 has
convicted the said accused u/s 3(3) of TADA (P) Act, 1987 and
sentenced him to RI for 10 years.
The Honourable Apex Court of India has also relied upon his
confession as substantive piece of evidence against him and his
co-accused & finding the same to be not only substantive but also
substantial the Apex Court has convicted the following co-accused
various co-accused such as –
Samir’s car. Upon which Samir objected. Then Sanjay Dutt said he
will take it after a while.
15 Since he had to go to drop his children at the School, he left his
car there itself and black bag containing hand-grenades was kept
in his car itself so he left his car there and then he took an auto
rickshaw and went home.
16 He narrated the developments to Hanif Kadawala (Dead), his
partner. After 3 days Sanjay Dutt(A-117) sent message through
Hanif that he has taken out the bag from the car and he can take
back his car. He collected his car from Sanjay Dutt’s residence at
9:30 pm.
P.W. 189 DCP recodg. the conf. of A- Chief Para : 126 to 142 &
PK Jain 41 150, 153
Cross Para : 154 to 194
P.W. 193 DCP recodg. the conf. of A- Chief Para : 398 to 416
Bishnoi 53 Cross Para : 776 to 817
v) The entire business and goodwill of the appellant has been lost.
vi) The appellant has already served about 6 ½ (six and a half)
years (without remission). Taking note of all these aspects and of
the fact that the CBI was not able to establish the charge relating to
major conspiracy and also that out of the period of 9 years, A-53
has served nearly six and a half years of sentence and in the light
of the ailments and taking note of the fact that the minimum
sentence prescribed is 5 years, while confirming the conviction, we
reduce the sentence to the period already undergone.
126
The Honourable Apex Court of India has also relied upon his
confession as substantive piece of evidence against his co-
accused & finding the same to be not only substantive but also
substantial the Apex Court has convicted the following co-
accused–
6 In the first week of April, 1993, Sanjay Dutt (A-117) left for
Mauritius for shooting. In his absence it appeared in the news
paper that Sanjay Dutt was in possession of AK-56 Rifles.
Same evening he received a telephone call from Sanjay
Dutt at his residential number. Sanjay Dutt told him that
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8 He took out the AK- 56 Rifle and cut it in to pieces with the
axe he had carried with him. Thereafter, he kept all those
cut pieces in the bag and went to Kersi Bapuji
Adejania’s(A-124) house.
12 Next day Sanjay Dutt (A-117) called him at his residence over
telephone. He told Sanjay Dutt that his instructions were
complied with.
Corroborated by –
129
P.W. DCP recodg. the conf. of Chief Para : 126 to 142 &
189 A-41 150,153
PK Jain Cross Para :154 to 194
P.W. DCP recodg. the conf. of Chief Para : 398 to 416
193 A-53 Cross Para :776 to 817
Bishnoi
DCP recodg. the conf. of Chief Para :475 to 494
A-89 Cross Para :600 to 668, 677 to
705,754 to 759
3) Other Evidence :
130
The above part of confession corroborates that the Sanjay Dutt was in
possession of the AK-56 rifle with its ammunition which was handed over
to him by accused Abu Salem.
The above part of confession also corroborates that the Sanjay Dutt was
in possession of one pistol which was sold to him by accused Kayyum
Shaikh (Accused before the Court).
The Honourable Apex Court while deciding the appeals arising out of
first part of this trial has held that the confession of this accused as
admissible in evidence & has relied upon the same as against him in his
own appeal i.e. Criminal Appeal No. 1102 of 2007, has gone onto
convict the accused for offence under Sections 3 and 7 read with
Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to RI
for 5 years along with a fine of Rs. 25,000/-, in default, to further
undergo RI for a period of 6 months. (ii) The appellant has been
further convicted for the offence punishable under Section 201 of
IPC and sentenced to suffer RI for 2 years. However, the aforesaid
accused being found not guilty of all other offences for which he
was charged at trial.
The Honourable Apex Court of India has also relied upon his
confession as substantive piece of evidence against his co-
accused & finding the same to be not only substantive but also
substantial the Apex Court has convicted the co-accused–
1) Sanjay Dutt (A-117)
13. After two days, Nullwala (A-118) enquired whether the pistol
was destroyed. He told Nullwala not to worry about it.
15. He had kept the pistol with Rusi (A-125) because he wanted to
enquire from Sanjay Dutt (A-117) if the pistol was licenced or
otherwise. But he could not enquire as he remained busy in his
own work.
P.W. DCP recodg. the conf. of Chief Para : 126 to 142 &
189 A-41 150,153
PK Jain Cross Para :154 to 194
Chief Para : 398 to 416
137
3) Other Evidence :
The above part of confession corroborates that the Sanjay Dutt was
in possession of the AK-56 rifle with its ammunition which was
handed over to him by accused Abu Salem to him.
Excerpts from the following confessions help connect the dots and
help to show how part of the weapons those were landed at Dighi
Jetty on 09.01.1993 were sent to be concealed at a go-down at
Sansarod near Bharuch, Gujarat by truck MRL-1051 –
On returning he found that there was a Police Jeep and one Police
officer with 6-7 constables. During their conversation,he learnt that
the name of Police officer was Patil (A 116). The Police had stopped
the truck and Tempo. SI. Patil was telling Salim and Feroz (accused
before Court) that they were simply leaving after the landing
without paying any bribe to them. Thereafter the SI was threatening
to arrest everyone.
Kayyum Sajni who had taken the truck No. MRL 1051 towards
Gujarat on his return told him that the arms and ammunition had
143
To prove the role of this accused Prosecution has led the evidence of:-
1. This witness has stated that, the entire 2nd floor of her
building was owned by one Smt. Begam Para which was
5. She has further stated that, then there after, she had
received threatening calls purportedly from Noora asking
her to sell her residential premises to him as he wanted to
purchase the entire property to himself. Upon which she
refused to sell her property. Noora had again called her for
the premises and he had threatened her of elimination.
6. She has further stated that, thereafter on one day she had
144
6. On their way back, Riyaz Siddiqui informed him that the van
and money was handed over by him to accused Abu Salem,
Man of Anees and Ajiz. Abu Salem would keep the "Saman"
(in gang language saman is the synonym used for Weapons)
in the cavities and return to Mumbai. They reached Mumbai
in the evening.
2. Next day at 6:00 am, Abu Salem, Mehandi Hasan and one
more person came to his office. They sat in Maruti 1000 and
went to Bharuch. They reached Bharuch at 7:00 to 7:30 pm
and went to Hotel Maharaja and stayed for the night. Abu
Salem had told them that they would leave Bharuch in the
morning in the Maruti van brought by Riyaz Siddiqui of
Mumbai which had secret compartment.
9. Then they visited a beer bar, consumed some beer and then went
to a flat in Kalina. On first floor, they rang the bell of one door and
a lady opened the door and entered the flat and sat in the hall.
10. Abu Salem and the lady went into the bedroom to talk and after
some time AbuSalem told them to go down so they would go
back and therefore; witness, Haider and Mehendi Hasan went
down and sat in Maruti-800 car.
11. Abu Salem also came down and asked them to get out of the
800-car and get into the 1000-car of white colour. Accordingly
witness and Haider did so.
13. After alighting from car Abu Salem and Haider got engaged in
some talk. After some time Abu Salem and Haider asked
whether he was willing to accompany them to Bharuch on the
next day morning and witness acquiesced.
15. They reached Bharuch in the evening on the same day at around
7:00-7:30 pm and went to Maharaja Hotel.
16. Abu Salem told them that they were to leave in the morning in a
van with “chorkhanas” (secret compartments) which will be
brought by Riyaz Siddiqui from Bombay. They stayed in the
Maharaja Hotel that night.
17. In the morning, witness woke up late and going down he saw a
white Maruti van with Gujarat registration standing in the parking
lot.
18. Abu Salem, witness, Haider, Mehendi Hasan and one person
known as Sheth sat in the said van, Abu Salem told them that
the said car was belonging to Riyaz and was sent by him. Since
Abu Salem was engaged in smuggling of gold he told them that
the said car had been brought for the purpose of taking gold.
19. Then, they sat in the Maruti van and went towards Bharuch
highway. On the said highway one person waved his hand when
their car reached him. He was covered in a muffler and a shawl,
Abu Salem asked the person whether he was sent by Mustafa
Dossa and the person replied in affirmative and Abu Salem
asked him to sit in the car.
20. After proceeding in the said car they stopped the car near a hotel
which was far away from the highway where witness and
Mehendi Hasan were asked to alight and have breakfast at the
hotel.
21. The other persons went in the van. Abu Salem, Haider and the
person who had joined them on the highway returned after 2-3
hours.
22. Witness and Mehendi Hasan were taken in the car and they
again started towards the Bombay highway. There the person
whom they had met on the highway with his face covered with
shawl was again standing on the highway. (witness states that
the said person had alighted at the highway hotel and had not
accompanied them in the said car when they started return
journey towards Bombay.)
149
23. The Mufflerwala person who had met them on the way was again
dropped on the highway, he also advised them to take care as
there was heavy checking in Mumbai.
24. They reached Bombay on the next day in the morning, witness
and his brother were dropped near their office and Abu Salem
and Mehendi Hasan went ahead.
2. He knew one Haji Rafiq Kapadia since 1980, he was also engaged
in transport.
4. In January 1992 Rafiq Kapadia came to him, told him that he has
started customs notified shop “Chandani” and he required one
godown. He showed him his godown he approved and agreed to
pay him Rs. 1000/- per month, written agreement was executed,
he started keeping goods in his godown from 01.02.1992.
7. At around 9.00 pm he came along with the truck. One fat black
person was with him. He asked him (witness) about key, he asked
him to bring his key, witness went home and brought the key, they
proceeded to godown in truck, he handed over key to Rafiq,
8. The number plate on truck was 1051. Haji Rafiq opened the
doors of godown. Driver of the truck climbed on the top of the
truck, Rafiq asked him (driver) to take out the goods.
9. Driver took out 2 guns from the cabin top and gave it to Rafiq,
witness asked Rafiq as to how be brought guns when he had told
about custom goods, he told him to take back truck and that he
won’t allow them to unload the goods.
10. The person on the top of the truck threatened him and asked
him to shut his mouth or else he shall finish him then and there
only.
11. Haji Rafiq took him (wit) aside and persuaded him to keep
quiet as those persons were from Bombay and they may kill him
and his family, he came to know that the name of that person was
‘Abdul Kayyum’.
12. Haji Rafiq asked him to keep quiet and assured that he will
remove the goods within two days. They unloaded the goods in the
godown. Haji Rafiq took that key also, thereafter they went with
truck towards Bombay. Witness went home.
13. On the next day at 2.00/2.30 pm Haji Rafiq came with tempo,
he saw that they were loading the goods in tempo, there were
some long guns and boxes, they took away the tempo, Rafiq told
him that some goods were still remaining in godown which he
assured to remove on other day.
14. On other day on his enquiry Rafiq replied to him that at 3.00
pm he will come and remove the goods.
151
16. The back door of van was opened by both boys. Haji Rafiq
opened the godown Shutter. Black boy instructed another boy
“Salim Gadi ander lay” the van was taken inside, they loaded
8/9 guns some grenades and some boxes in the van, the
goods were kept under the seats after lifting the seats,
thereafter they left the godown.
22. He was also threatened that, his statement in this case may
be used against him in Anklav Court or in appeal.
25. Haji Rafiq took remaining arms and ammunition in April 1993
from godown. He had seen ‘Salim’ on TV and in newspaper after
the incident in godown.
2. During the said period, there were two more Inspectors of Police
attached with Khar Police Station and working under him. PW-219
himself was the only Senior Inspector of Police attached with the said
Police Station and was overall Incharge of the said police station
during the said period and he was required to supervise day to day
working at the said police station.
3. He was distributing the duties to the officers at the said police station.
The duties were allotted to the policemen below the rank of Officer by
Incharge Police Head Constable. The said Head Constable was
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4. The separate register was maintained at the police station for making
record of the duties allotted to the various officers. Similarly, another
register was maintained for keeping the record of the duties allotted
to the constables by the Incharge Head Constable as per his order.
5. The bungalow of Cine actor Sunil Dutt, who was also a Member of
Parliament in the year 1992, was situated at Pali Hill, Bandra (West),
within the jurisdiction of Khar Police Station. Since he took the charge
at Khar Police Station, he found that one unarmed constable during
the day time and another one unarmed constable during the night
time was posted for guard duty at the said bungalow as per the order
passed by DCP Zone-VII. He continued with the said arrangement.
7. One constable each during day time and night time out of the two
constables from both the batches were provided with one rifle and
ammunition. The said arrangement was commenced from
20/12/1992 and the same continued uptil 7/1/1993.
9. During the said period only two police men were posted at the said
bungalow. After 20/1/1993 till 9/3/1993 he posted two constables
with a rifle amongst them for day duty and so also another two
constables with rifle amongst them for night duty at the said
bungalow. After 9/3/2013 one constable with rifle was posted at the
said bungalow during the day time and another one during the night
time.
10. PN 14155 and PC. 3497 were attached with Khar Police Station
when he was attached with the Khar Police Station. The said PN
14155 and PC.3497 were posted for guard duty at the bungalow of
Sunil Dutt from 11/1/1993 uptil 13/1/1993 for round the clock duty.
154
11. He had brought the Duty Register in which the record of the duties
allotted to the Constables was maintained by then Incharge Havaldar
at Khar Police Station from 11/9/1992 uptil 22/12/1993 in ordinary
course of the business of Police Station on every day during the said
period.
12. The said register is maintained at Khar Police Station alike other
police station as per the standing orders issued by Commissioner of
Police, Bombay. The register produced by PW-219 is marked as X-
329 for identification.
13. He has identified the entires from the pages of the said duty
register for dated 11/1/1993 uptil 18/1/1993 revealing that PN.14155
and PC 3497 were posted at the bungalow of Sunil Dutt during the
said period. The said entries are in the handwriting of Incharge
Havaldar those attached with Khar Police Station during the relevant
period.
14. The Head Constable No. 8359 Shri Narsayya Terdal was the said
Incharge Havaldar during the said period at the Khar Police Station.
PW-219 has identified his handwriting for the said entries in the said
register. P.N.14155 and PC 3497 were given said duties as per his
directions. The matters recorded in the said entries is true and
correct.
3. Three occupants of the van alighted from the van and told the
watchman to call Sanjay Dutt. After sometime sanjay Dutt
155
4. He has further confirmed that, vide the said file a passport was
issued to Abu Salem in the name of Akil Ahmad Azmi.
8. He has further deposed that, due to security hazard the CMM was
requested. The CMM arrived at CBI office and observed the
formalities as contemplated in Kartar Singh's case.
RECOVERIES -
further said, for the first time, that he and Sudarshana did not sleep in
the same room but they slept in two different rooms. Such a conduct on
the part of the accused was taken into account by the Sessions Court in
evaluating the incriminating circumstance spoken to by PW 10 that they
were in the same room on the fateful night. We too give accord to the
aforesaid approach made by the trial court.
16. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar
(2002) 1 SCC 622, this Court held:
22. In the present case the grinding stone was found in tall grass. The
pants and underwear were buried. They were out of visibility of others in
normal circumstances. Until they were disinterred, at the instance of the
Respondent, their hidden state had remained unhampered. The
Respondent alone knew where they were until he disclosed it. Thus we
see no substance in this submission also.
17. In view of the above, it cannot be accepted that a recovery made
from an open space or a public place which was accessible to
everyone, should not be taken into consideration for any reason. The
reasoning behind it, is that, it will be the accused alone who will be
having knowledge of the place, where a thing is hidden. The other
persons who had access to the place would not be aware of the fact
that an accused, after the commission of an offence, had concealed
contraband material beneath the earth, or in the garbage.
Further in the same Appeal the Hon’ble Apex Court was pleased to hold
on the point of “possession of arms” by the said accused as –
“18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI (2003) 12
SCC 257, this Court explained the meaning of possession as:
The word "possession" means the legal right to possession (See
Heath v. Drown). In an interesting case it was observed that where a
person keeps his firearm in his mother's flat which is safer than his
own home, he must be considered to be in possession of the same.
(See Sullivan v. Earl of Caithness (1976) 1 All ER 844.)
Once possession is established, the person who claims that it was not
a conscious possession has to establish it, because how he came to
be in possession is within his special knowledge.
19. In Sanjay Dutt v. State thr. CBI, Bombay (II) (1994) 5 SCC 410
this Court considered the statutory provisions of Section 5 TADA and in
this regard held:
19. The meaning of the first ingredient of 'possession' of any such
arms etc. is not disputed. Even though the word 'possession' is not
160
The Hon’ble Apex Court has taken the same into account in the appeal
of Ayub Patel (A-72) and observed thus –
“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 (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 16 th January, 1993 Salem
came 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 him (A-41). The said goods
were not taken back by Salem as promised, so he (A-41) contacted
Salem to take it back. A-41 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 goods 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 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, Salem
came to A-41 and handed over a vehicle asking him to leave it at a
163
place near Ram and Shyam Talkies at Jogeshwari and hand over the
vehicle to Ayub and there were further instructions forAyub to keep all
the goods except hand grenades in the car and to leave the car near
the office of 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 28 th of March 1993.
After his arrest, the father of A-41 obtained the bag which he had kept
with Ayub through Haji Ismail and produced it before the police.
210. Recovery panchnamas - Exts. 154-155 make it clear that Sub-
Inspector Nerlekar had interrogated the
accused AyubIbrahim Patel (A-72) and he expressed his desire to
make the disclosure statement. At that time, two Panchas were called
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 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 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. The same was handed over to the Sub-
Inspector Nerlekar (PW - 605) who drew a panchnama and left for
Worli Police Station with the hand grenades.
213. From the above discussion it is evident that Baba Chauhan (A-
41) had given 20 hand grenades to one Ayub resident of Oshiwara.”
Nulwala identified the said person as being said Kersi. PW-680 asked
the said elderly person his name and the said person gave his name as
Kersi Bapuji Adejania. arrested the said person in connection with C.R.
No.70/93 of DCB, CID. Thereafter, the said person expressed his desire
to make a voluntary statement. PW-680 asked the panch witnesses to
hear the statement which would be made by Kersi Adejania and also
instructed API Shri Joshi to record the same by drawing further
panchanama of the said events in continuation with the earlier
panchanama recorded by him. Kersi Adejania made the statement in
Hindi and API Shri Joshi recorded the said statement at the same place.
Thereafter, alongwith one constable, Kersi Adejania went in the inner
room of the said flat and after some time returned in the hall with a
spring and a metallic rod alongwith him and gave the same to PW-680.
PW-680 took charge of the same and kept it in one brown colour
envelope and closed the said envelope. He impressed a lac seal upon
the same and pasted the label of signatures of panch witnesses and of
himself and took charge of the said packet. API Shri Joshi recorded the
said events in the panchanama which he was drawing, as instructed by
PW-680 earlier. The said document is at Exh.1068-C. Article viz.
Articles: 383-A and 383-B, as being the same iron rod and spring
respectively, brought by Kersi Adejania and taken charge by PW-680 on
19.4.1993 in the house of Kersi Adejania at Karim Manzil. thereafter,
accused Kersi Adejania, accused Yusuf Nulwala, panch witnesses, PW-
680 and other police staff boarded the police vehicle and the driver of
the said vehicle drove the same as instructed by accused Kersi Adejania
and brought the same to the Mon Rippo Building at Bandra Band Stand.
Accused Kersi Adejania took them in the said building and pressed the
door of bell of the said bungalow. Within few moments the door was
opened by one Parsi lady. accused Kersi Adejania asked the said Parsi
lady to call Rusi. The said lady went inside and after some time returned
to the door alongwith one male person. Accused Kersi Adejania informed
them that the said person was the same Rusi Mulla. PW-680 asked the
said person his name and he gave the same as Rusi Mulla. PW-680
informed said Rusi Mulla that he was arresting him in connection with
C.R. No.70/93. Rusi Mulla made the statement in Hindi and API Shri
Joshi recorded the said statement in the hall of the said house. API Shri
Joshi had recorded all the said events in the panchanama which he was
drawing as instructed to him by PW-680 earlier. The document marked
Exh.1068-D, as being the same panchanama drawn in the hall of flat of
Rusi Mulla at Bandra Band Stand regarding the events occurred after
they left the house of Kersi Adejania. Thereafter, they left the said place
and following the car of accused Rusi Mulla, reached upto Marwah
House on Turner Road, Bandra and halted at the said place as accused
166
Rusi Mulla had halted his car in front of Marwah House. Accused Rusi
Mulla took them inside the Marwah House and pressed the door bell of
the said house after they had been in the varanda of the said house.
After some time one young boy opened the door and accused Rusi
Mulla informed them that the said person was the same Ajay Marwah.
PW-680 informed said Ajay Marwah that he was arresting him in
connection with C.R. No.70/93 and arrested him accordingly. PW-680
asked Ajay Marwah few questions and, thereafter, asked if he wanted to
tell anything and if so, then he should say the same. Ajay Marwah went
inside his house and returned after some time alongwith the said
constable. At that time he was carrying a packet in his hand and he
opened the said packet and took out a thing which was in the plastic
bag. PW-680 found that it was a 9 mm pistol with magazine loaded in
the same. PW-680 took charge of the same and took out the magazine
out of the said pistol. PW-680 found that the said magazine was loaded
with bullets, so he unloaded the same and found the same loaded with 8
bullets. Thereafter, he loaded the empty magazine in the said pistol.
PW-680 took charge of the said articles. API Shri Joshi had also
recorded all the said events in the panchanama drawn by him and as
instructed to him by PW-680 earlier. PW-680 also signed upon the
same after he had read the same and found that the same was correctly
made. The said document is Exh.1068-E.
place where an object is concealed and points out the same to him,
however, it is not essential that there should be such pointing out in
order to make the information admissible under Section 27. It could
very well be that on the basis of information furnished by the accused,
the investigating officer may go to the spot in the company of other
witnesses and recover the material object. By doing so, the
investigating officer will be discovering a fact viz. the concealment of
an incriminating article and the knowledge of the accused furnishing
the information about it. In other words, where the information
furnished by the person in custody is verified by the police officer by
going to the spot mentioned by the informant and finds it to be correct,
that amounts to discovery of fact within the meaning of Section 27. of
course, it is subject to the rider that the information so furnished was
the immediate and proximate cause of discovery. If the police officer
chooses not to take the informant accused to the spot, it will have no
bearing on the point of admissibility under Section 27, though it may be
one of the aspects that goes into evaluation of that particular piece of
evidence.
145. Before parting with the discussion on the subject of confessions
under Section 27, we may briefly refer to the legal position as regards
joint disclosures. This point assumes relevance in the context of such
disclosures made by the first two accused viz. Afzal and Shaukat. The
admissibility of information said to have been furnished by both of
them leading to the discovery of the hideouts of the deceased terrorists
and the recovery of a laptop computer, a mobile phone and cash of Rs.
10 lakhs from the truck in which they were found at Srinagar is in
issue. learned Senior counsel Mr Shanti Bhushan and Mr Sushil
Kumar appearing for the accused contend, as was contended before
the High Court, that the disclosure and pointing out attributed to both
cannot fall within the ken of Section 27, whereas it is the contention of
Mr Gopal Subramanium that there is no taboo against the admission of
such information as incriminating evidence against both the accused
informants. Some of the High Courts have taken the view that the
wording "a person" excludes the applicability of the section to more
than one person. But, that is too narrow a view to be taken. Joint
disclosures, to be more accurate, simultaneous disclosures, per se,
are not inadmissible under Section 27. "A person accused" need not
necessarily be a single person, but it could be plurality of the accused.
It seems to us that the real reason for not acting upon the joint
disclosures by taking resort to Section 27 is the inherent difficulty in
placing reliance on such information supposed to have emerged from
the mouths of two or more accused at a time. In fact, joint or
simultaneous disclosure is a myth, because two or more accused
168
63. The rod and the spring recovered from the possession of A-124
were sent to FSL for examination. The experts opined that the said
articles correspond to that of an AK-56 type rifle, but did not
correspond to similar components used in AK-47 rifle.
64. The independent witness was given a tape to measure the rod,
and the measurement came to be 15 inches which is not one and a
half feet, as was recorded and deposed to by the Prosecution witness.
A contention was also raised with regard to the removal of the seal
from the packet. The requisition and the report show that the seal on
the packet containing the object was perfect and had not been
tempered with. In that event, the said anomaly may not be of much
consequence.
65. The Prosecution has also established through one independent
witness PW-265 that A-118 and A-124 further made statement to the
police and pursuant whereof the gas cylinder used in destroying AK-56
was recovered at the instance of A-124 and some of the ammunition of
AK-56 were recovered at the instance of A-118.
66. The relevant confession of A-53, wherein he stated that when they
reached the house of Sanjay Dutt, he was speaking to Anees over
phone, the said call details along with a certified copy of the relevant
directory which contains the telephone number of Anees Ibrahim in
Dubai has been filed. The call record was pertaining to Tel. No.
6462786. Exh. No. X-572 shows that the said number belongs
to Sanjay Dutt. The United Arab Emirates' Telephone Directory which
is also exhibited indicates the number as 448585 in the name of Anees
Shaikh Ibrahim.”
SANCTION;-
On Sanction under Section 20-A (1) and Section 20-A (2) of the TADA
(P) Act, 1987 –
In the present scenario there was no requirement of prior approval for
recording information about the commission of offences under Section
20-A (1) & (2) of TADA inasmuch as the 27 first information reports about
the serial bombings and the attempted explosions were registered much
prior to the amendment to the TADA Act, 1987with the last F.I.R on
26th April, 1993 whereas Section 20-A(1)was inserted in the Act
subsequently on 22nd May, 1993. Hence the requisite sanction was
promptly sought for keeping in mind the provisions of the law as it stood
then and was duly granted under Section 20. Hence any other assertion
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regarding the paucity of grant of sanction under Section 20-(A) (1) would
not hold ground.
For instance in the case of Hussein Ghadially v State of Gujarat 2014
the TADA charges were removed from the reports pursuant to the
recommendations of the Review Committee. By the time fresh evidence
came to light requiring re-introduction of the provisions of the Act
approval for recording information regarding commission of offences
under TADA, had become necessary. Such was never the situation in
our case, the difference in the facts of that case and that of ours is
explicitly clear, no further dilation need be made on this point.
What is established;-
6. Accused Abu Salem then went ahead with his one companion
and a man with the muffler (Kapadia) to Sansrod.
10. Accused Abu Salem also delivered three AK-56 rifles, its
magazines, ammunition and handgrenades to co-accused
Baba Musa Chauhan.
11. Accused Abu Salem then, kept all remaining arms and
ammunitions with him.
The Prosecution has proved the role played by accused Abu Salem
Abdul Qayoom Ansari in the conspiracy and the fact that he was
privy to the object of the conspiracy hatched, its aim and hence
performed the same with vigour and determination.