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NOTES OF ARGUMENTS IN CASE OF

ACCUSED ABU SALEM ABDUL QAYOOM ANSARI (A-139)

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.

A common charge of conspiracy was framed by the Designated


Court against all the co-conspirators including Abu Salem (A-139)
on 10.04.1995. subsequent to the arrest of this accused on
11.11.2005, on 09.12.2005. said charge is altered to the extent of
addition of his name in the list of accused after removing the same
from list of absconding accused.

The said common charge reads as,

“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 (UA.E.) Pakistan, entered into a criminal
conspiracyand/or were members of the said criminal conspiracy
whose object was to commit terrorist acts in Indiaand 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
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sections of the people, i.e. Hindus and Muslims by using bombs,


dynamites, handgrenades 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, 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, handgrenades and high explosives like RDX into
Indiaand to distribute the same amongst yourselves and your men
of confidencefor 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 of
the same as need arises. To organize training camps in Pakistan
and in India to impart 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 actsas 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, andattempted 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 Indian Penal Code read with Sections 3(2)(i)
(ii), 3(3), 3(4), 5 and 6 of TADA (P)Act,1987 and read with Sections
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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.”

So far as Accused Abu Salem Abdul Qayoom Ansari (A-139) is


concerned it is pertinent to note that, his name revealed during the
course of initial investigation only and hence his name was
appearing in the first charge sheet which was filed by the
Prosecution on 04.11.1993.

As, this accused along with other 42 accused was then


absconding, the Designated Court was pleased to pass an order for
the issue of proclamations against 43 accused persons who were
required to appear in person before the special Court under TADA (P)
Act, 1987 on 15.09.1993.

On 15.10.1993 This Honourable Court was pleased to pass an order


declaring that the wanted accused whose names appeared in the
proclamation published by the Court are declared as proclaimed
offenders.

(complete chart of all seven accused and their events regarding


proclamations and arrests is separately submitted during the course of
arguments.)

Accused Abu Salem Abdul Qayoom Ansari was detained in Lisbon,


Portugal on 18.09.2002 and extradited to India on 11.11.2005

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,
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“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.:

a) That in the 2nd Week of Jan. 1993, you went to Bharuch


(Gujarat) alongwith absconding accused Aziz M. Bilakhia in a
Maruti car for the purpose of receiving arms, ammunition and
explosives and transportation of the same to Bombay in a
clandestine manner for the purpose of distribution / storage of the
same among the co-accused for the commission of terrorists acts
in the city of Mumbai and in pursuance of the said criminal
conspiracy, you alongwith other co-accused intentionally
exchanged the Maruti car with Maruti van with accused Riyaz
Ahmed Siddique for transporting illicit arms and ammunition to
Mumbai.

b) That you did collect nine AK-56 rifles about 100


handgrenades, some boxes of cartridges and magazines from
village Sansrod, near Bharuch. (Gujarat) in the 2 nd week of Jan.
1993 and transported the same to Bombay via Bhiwandi and
Thane duly concealed in false cavities of the white Maruti van with
Gujarat registration number which was given to you by accused
Riyaz Ahmed Siddique for this purpose.

c) That after transporting the said arms and ammunition to


Bombay in the false cavities of white colour Maruti van at the
instance of absconding accused Aziz M. Bilakhia, you alongwith
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other co-accused Samir Hingora and Baba Musa Chauhan who


are facing trial, delivered some of the arms and ammunition to co-
accused Sanjay Dutt at his residence in the 2 nd week of Jan 1993.

d) That you alongwith Manzoor Ahmed and Hanif Kadawala


(since dead) took back some of the arms and ammunition from co-
accused Zaibunnisa Kazi at Vindhyachal Apartment, Bandra at the
instance of absconding accused Aziz M. Bilakhia and Anees
Ibrahim Kaskar.

AND thereby you committed an offence punishable u/s 3(3) of TADA


(P) Act, 1987 and within my cognizance .

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
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Bharuch (Gujarat) to Bombay and subsequently delivering the same


to co-accused Sanjay Dutt at his residence and thereafter you
alongwith co-accused Manzoor Ahmad (A-89) and Hanif Kadawala
(since dead) taken back some of the arms and ammunition form the
residence of Sanjay Dutt kept the same in the house of co-accused
Zaibunissa Kazi at Vindhyachal Apartments, Bandra, and that you
thereby committed offence punishable u/s 6 of TADA (P) Act, 1987
and within my cognizance.

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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object and there by committed an offence punishable u/s 5 of the


Explosive Substance Act, 1908 and within my cognizance.

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:

That you accused Abu Salem Abdul Qayoom Ansari, in pursuance of


the aforesaid criminal conspiracy during the aforesaid period and
place, in contravention of the Rules framed u/s 5 of Explosives Act,
1884 possessed about 100 handgrenades and some boxes of
cartridges and thereby committed an offence punishable u/s 9B of
the Explosives Act, 1884 and within my cognizance.

Challenging the said framing of charges accused Abu Salem filed


Criminal Appeal Nos. 990 of 2006, 1142-1143 of 2007 and Writ Petition
(Criminal) No. 171 of 2006

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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1. The request for extradition of the appellant-Abu Salem has been


made relying on the assurance of reciprocity as applicable in
international law and the International Convention for
Suppression of Terrorist Bombings.

2. All the assurances and communications, were made by the


Government of India.

3. The order dated 27.01.2005 of the Supreme Court of Justice,


Portugal mentions that Article 9. 3 of the said Convention applies
to the case of appellant-Abu Salem.

4. As per Article 9.3, the State Parties, which do not make


extradition conditional on the existence of a treaty, shall
recognize the offences themselves subject to the conditions
provided by the law of the requested State.

5. Article 2 of the Convention defines the extraditable offences. The


above mentioned offences for which the extradition has not been
specifically granted, also covered under the definition of
extraditable offence, as mentioned in Article 2 of the said
Convention.

6. On 28.03.2003, the Ministerial order came to be passed


admitting extradition amongst others for Section 120B read with
Section 302 IPC, Section 3(2) of TADA. However, the ministerial
order declines extradition for Section 25(1A) and (1B) of the
Arms Act and Sections 4 & 5 of Explosive Substances Act.

7. On 25.05.2003, the Ambassador of India in Lisbon gave further


assurance that they will not be tried for offences other than those
for which extradition was sought for and they will not be
extradited to a third country.

8. In pursuance of the Ministerial order dated 28.03.2003, Her


Excellency, the Minister of Justice, under the terms provided in
No. 2 of Article 48 of Law 144/99 submitted through the Public
Prosecution a request for extradition before the Court of Appeals
of Lisbon.
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9. The appellant-Abu Salem also preferred an appeal against the


order of Extradition before the Court of Appeals, Lisbon.

10. By order dated 14.07.2004, the Court of Appeals Lisbon


agreed to authorize extradition for the offences contained in the
request of Prosecution with an exception of offences punishable
with death or life imprisonment.

11. Aggrieved by the same, the Public Prosecution challenged


the order of Court of Appeals before the Supreme Court of
Justice by lodging an appeal on 23.07.2004 and sought
extradition also for offences punishable with death and life
imprisonment.

12. On 29.07.2004, the appellant also filed an appeal against


the said order of the Court of Appeals.

13. On 27.01.2005, the Supreme Court of Justice permitted the


extradition for the offences in view of the assurances given by
the Government of India that the person extradited would not be
visited by death penalty or imprisonment for a term beyond 25
years. In addition to the same, on 03.03.2005, the Supreme
Court of Justice issued a supplementary order maintaining the
decision made on 27.01.2005.

14. On 13.06.2005, the petition for appeal of the appellant-


Abu Salem was rejected by the Constitutional Court by
upholding the constitutional validity of the provisions of
Article 9. 3 of the said New York Convention which obliges the
signatory State for extradition for offences covered under it
notwithstanding lack of mutual extradition treaty between the
parties.

15. On 10.11.2005, the custody of the appellant was handed


over to the Indian Authorities and on 11.11.2005, the appellant
was brought to India and was produced before this Honourable
Court, in this case.

16. By an order dated 18.03.2006, the substantive charges in


addition to charge of conspiracy were framed against the
appellant and his plea of not guilty and claim of trial was
recorded.
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17. . Thereafter, the Prosecution filed Miscellaneous


Application bearing No. 144/2006 seeking separation of the trial
of the accused from the main trail in the Bombay Bomb Blast
case.

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.

19. By order dated 13.06.2006, the Designated Court allowed


the application of the Prosecution for separation of trial and held
that the trial would continue as BBC-1-B/1993 in continuity with
the earlier joint case.

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.

21. Apart from challenging the above said order by way of an


appeal under Section 19 of the TADA Act and a writ petition
under Article 32 of the Constitution, the appellant had also
moved an application before the Court of Appeal in Lisbon that
he is being tried in India for violation of Principles of Speciality as
contained in Article 16 of Law 144/99.

22. On 18.05.2007, the Court of Appeal expressed its inability


to enquire into the question of surrender by the Indian State on
the ground that the Indian State has violated certain conditions
on which extradition was granted.

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
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there has been violation of any condition as alleged by the


appellant.

24. The Court of Appeals, by order dated 13.10.2008, had


adjourned the matter till the Honourable Apex Court of India
passes a final order in the appeals which were being heard.

25. According to the appellant, the charges under


Sections 3(4), 5 and 6 of the TADA Act, Sections 4(b) and 5of the
Explosive Substances Act, Section 25 of the Arms Act,
Section 9B of the Explosives Act and charges under
Section 120B, 387 and 386 of IPC and under Section 5 of TADA
are all impermissible, contrary to the solemn sovereign
assurance of the Government of India, the ministerial order of
extradition of the appellant passed by the Government of
Portugal, the judgment of the Court of Appeals as well as the
Supreme Court of Portugal.

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
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well as hand-grenades, which were illegally smuggled into the country


in pursuance of the criminal conspiracy.
31. We are also satisfied that there has been no violation of Rule of
Speciality and the Solemn Sovereign Assurance given by the
Government of India in the letter dated 25.05.2003 of the Indian
Ambassador to the Government of Portugal regarding the trial of the
appellant-Abu Salem. The said assurance of the Indian Ambassador
was given to the effect that the appellant will not be prosecuted for the
offences other than those for which his extradition has been sought
and that he will not be re-extradited to any other third country. As
rightly pointed out by the Solicitor General, there has been no violation
of Rule of Speciality. As per the Government of India Gazette
Notification dated 13.12.2002, all the provisions contained under the
Extradition Act are made applicable in respect of the extradition
of Abu Salemexcept those contained in Chapter III of the Act. The
Court of Appeals in Lisbon, has recognized this principle of reciprocity
and the applicability of the provisions of Extradition Act to Portugal.
The Supreme Court of Justice and Constitutional Court of Portugal
have also approved it. In view of the fact that the provisions of the
Extradition Act, 1962 have been made applicable to Portugal,
provisions contained in Section 21 of the Act would come into
operation while conducting the trial of appellant-Abu Salem.

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
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which the appellant is charged are punishable with lesser


punishment than the offence for which he has been extradited.
The extradition granted in the present case had due regard to the
facts placed which would cover the offences with which the
appellant has been charged. As rightly pointed out by learned
Solicitor General, the offences are disclosed by the same set of facts
placed before the Government of Portugal. We agree with the
submission of the learned Solicitor General and the ultimate decision
of the Designated Court.

34. Coming to the order of the Designated Court directing separation


of the trial of the appellant, it is the grievance of the appellant that
because of the separation, he would forego the opportunity to cross-
examine the witnesses. This grievance has been dealt with in a
separate set of proceeding which we have adverted to in the
earlier part of our judgment. The order dated 24.08.2009 has
granted the appellant an opportunity to submit a list of witnesses
examined in the main trial for cross-examination. Hence, there is
no basis in the apprehension raised by the appellant.
35. In the light of the above discussion, we are of the view that the
appellant has been charged within the permissible scope of
Section 21(b) of the Extradition Act and the Designated Court has
not committed any illegality in passing the impugned orders.
Consequently, all the appeals as well as the writ petition are liable
to be dismissed, accordingly dismissed. Since the trial is pending
from the year 1983 and connected matters have already been
disposed of, we direct the Designated Court to proceed with the trial
expeditiously.” (emphasis supplied)

The other judge concluded the same with the additionally observing
thus,

“66. This position of extraditable offences, and the obligations of the


requesting State can further be understood, if one bears in mind the
fact that the doctrines of double criminality and specialty are both
safeguards of the individual rights of the extraditee who should not be
tried on unexpected counts, as well as the rights of the requested
State to have its laws and processes given adequate deference by the
requesting State. It is not only a means to protect the person from
unexpected Prosecution, but also a preventive guard against the
abuse of the legal process of the requested State. While the first
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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.

Subsequent to the judgment of Apex Court dated 10.09.2010, the


Court of Appeals of Lisbon, by judgment dated 14.09.2011, took a
contrary view and held that the authorization granted for the extradition
of Abu Salem ought to be terminated. It was held that Article 16 of the
Portuguese Law No. 144/99 clearly provides that a person cannot be
tried for an offence other than the one that gives rise to request for
cooperation by way of extradition. It was further held that Article 16(2)
provides that a person cannot be tried for offences other than those
determined in the request for cooperation………...In the light of the
Portuguese legal system, the Indian Union were not considering the
limits imposed by the Portuguese Republic to the extradition of
Abu Salem of which it was perfectly aware ………….... violated the
principle of Speciality.

Being aggrieved of the above order, Union of India preferred an appeal


before the Supreme Court of Justice, Portugal but the same was
dismissed as not maintainable.

The Constitutional Court of Portugal, on 05.07.2012, decided the


appeal preferred by the Union of India. whereby concluded that there
has been violation of the Principle of Speciality.

After the decision of the constitutional Court of Portugal, accused Abu


Salem filed Criminal Appeal Nos. 415-416 of 2012 before the Apex
Court of India challenging the final judgment and order dated
08.11.2011 passed by the this Honourable Court in 'TADA Special
Case No. 1-B of 1993 and Special Case No. 1 of 2006 whereby this
Honourable Court had dismissed both the applications filed by him in
view of the order dated 14.09.2011 passed by the Court of Appeals of
Lisbon, Portugal terminating the extradition order dated 28.03.2003
and for stay of all further proceedings.
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Pending disposal of these appeals, the CBI filed Criminal Misc.


Petitions bearing Nos. 3301-3302 of 2013 praying for
clarification/modification of the judgment and order dated 10.09.2010

In the same applications, the CBI also prayed for permission to


withdraw certain charges levelled against the accused Abu Salem.,
and for vacation of the stay order dated 17.02.2012 and to allow the
trial to continue.

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:

• Firstly, whether this Court can modify the judgment rendered


in Abu Salem (supra) dated 10.09.2010 reported in (2011) 11 SCC
214 under the grounds raised by the Respondent.

• Secondly, whether the order of Extradition dated 28.03.2003 stands


annulled/cancelled as alleged by the Appellant.

11. As regards the first question, no doubt, the Constitution of India


bestows upon the Supreme Court the inherent power to reconsider,
modify and revise its earlier decisions for the reason that law has to
bend before justice. Certainly, nothing would preclude this Court from
rectifying the error if it finds that the error pointed out in the
modification petition was under mistake and the earlier judgment would
not have been passed but for erroneous assumption which in fact did
not exist and its perpetration had resulted in miscarriage of justice.
12. In the given case, the only ground on which the Respondent/CBI
seeks modification is to harmonize the situation created by the
divergent views with regard to the violation of the Principle of
Speciality. It is further submitted that in the interest of comity of Courts,
united fight at international level against the global terrorism, the
Government of India is taking further efforts through diplomatic
channels. As a result, the Respondent is of the view that the additional
charges framed against the Appellant, which were held valid by this
Court in the order dated 10.09.2010, may come as impediment for
furthering the diplomatic talks. As on date, …………………………….
Considering the two decades delay in the Prosecution of the
accused/appellant, the Respondent is of the view that withdrawal of
additional charges framed against the Appellant will cut short the
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process. Therefore, the Respondent seeks permission to withdraw the


additional charges levied against the Appellant via this modification
petition. While it is made clear that this petition is moved before
this Court only to avoid endless deferral of the trial of the
Appellant.”

Honourable Apex Court was further pleased to observe that,

“14. Taking note of the submission of the Respondent that the


offences for which the Appellant was extradited to India are grave
enough to even award the Appellant with maximum punishment
and therefore no prejudice would be caused if the present
application for modification is allowed, we are of the considered
view that allowing the present modification petition under the
existing peculiar circumstance will not be detrimental to any of
the parties. However, it is pertinent to clarify that by allowing the
modification petition filed by the Respondent, it cannot be
construed that this Court is reviewing the judgment in the light of
the verdict of the Constitutional Court of Portugal. Both India and
Portugal are two sovereign States with efficient and independent
judicial system. As a consequence, in unequivocal terms, the
verdict by the Constitutional Court of Portugal is not binding on
this Court but only has persuasive value.
15. Consequently, though this Court has rendered a decision in favour
of the CBI in the interest of comity of Courts and on the statement
made by learned Attorney General that the matter is being pursued
through diplomatic channels, while allowing the modification petition,
we permit the Respondent-CBI to withdraw the charges (iii) to
(viii) as mentioned in paragraph supra. Learned Attorney General also
assured this Court that they are in the process of withdrawing other
charges too pending in various States against the Appellant which are
claimed to be in violation of the Extradition order and the same is
hereby recorded.
16. Nevertheless, it is clarified that the modification petition is
allowed only to the extent of withdrawal of the additional charges
framed against the Appellant. However, the analysis and
reasoning rendered in the impugned judgment with regard to the
interpretation of the Principle of Speciality still stands good as
the law declared by this Court under Article 141 of the
18

Constitution of India shall be binding on all courts within the


territory of India.

17. As regards the second question, whether the order of Extradition


dated 28.03.2003 stands annulled/cancelled as alleged by the
Appellants,……………………………. In view of the above
discussion, it is vividly clear that the order of Extradition dated
28.03.2003 still stands valid and effective in the eyes of law.
Accordingly, the second question stands responded.”

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.

2. The said charge is the charge of conspiracy for offences


committed by all the accused collectively irrespective of
what substantive offences are committed by each of them.

3. Charge u/s 120-B of IPC is granted even by the Portuguese


Authorities.

4. Offence u/s 120-B r/w any other offence itself is an


independent substantive offence.

5. Accused could be convicted and punished for both the


offences under 120-B and for the substantive offence. (Ref-
Supreme Court in case of Mohd. Hussain Umar Kochra Etc
vs K. S. Dalipsinghji & Anr., Etc of 1969 and Firozuddin
Basheeruddin & Ors vs State of Kerala of 2001)
19

6. Accused had neither raised any grievance about framing of


charge u/s 201, 212, 324, 326 and 427 before any authority or
Court nor was it ever rejected by the authority.

7. Even the Portuguese authorities/courts have not held


charge u/s 201, 212, 324, 326 and 427 as additional charges.

8. The substantive charges under section 201, 212, 324, 326


and 427 were never charged against accused applicant and
therefore there was no question of withdrawing substantive
charges under those sections.

9. Framing of charge is done by Court and once charge is


framed the same cannot be altered or quashed without due
process of law. In this case, charges are confirmed by the
Apex Court.

10. The applications of the accused are not based on the


settled law of land governing quashing or alteration of
charges.

Prosecution submits that, the charges at thirdly to eighthly were


withdrawn with the permission of the Apex Court, only in view of
the reasons quoted in the orders of the Apex Court referred herein
before. The said withdrawal has no concern of whatsoever nature
with the charges which accused is seeking to withdraw.
It is pertinent to note that all facts covering these offences
committed by the accused were placed before the Portugal
Authorities and after appreciating all the facts the Portugal
Authority on the basis of the request which was compilation of all
concerned documents has sanctioned the offences under section
120-B along with the other offences.

The defence itself while cross examining of Mr.O.P.Chhatwal has


brought on record that complete charge sheet of this case was the
part of the proposal of extradition, perusal of charge sheet makes it
clear that all facts now before the court including overt acts of this
accused were included into it. Therefore, the contention of the
accused in the applications filed by him before this Honourable
20

court that all evidence was not placed before the Portugal Authority
has no merit at all.

The contention of the accused that additional material brought on


record in further charge sheet is violation of rule of speciality is mis
conceived because the extraditing state when grants the
permission, it grants the permission on the basis of sufficiency of
the material and does not put a restriction to have additional
evidence for the same offence.

The contention of the accused that Portugal authority had not


sanctioned the additional offences which are withdrawn by the
prosecution is also baseless and same is sufficiently dealt with by
our Apex Court in its orders dated 10.09.2010 and 05.08.2013. It is
pertinent to note that the reasons for withdrawing the said charges
by the prosecution are also clarified by our Apex Court in its said
orders and therefore no further discussion in this regard at this
juncture is warranted.

Further allegation of the defence that, all relevant documents are


not brought on record by the prosecution is also baseless because
prosecution had submitted all the relevant documents to this
Honourable Court, even all documents (files) of the ministry of
external affairs concerning extradition of this accused, which were
sought for by the defence were also submitted to this Honourable
Court and this Honourable Court after inspection of the same has
returned those with its finding. The defence was trying to call for
the documents which infact are non-existent and was presuming
that such documents do exist.

The contention of this accused that, since prosecution has


withdrawn charges thirdly to eighthly, prosecution is required to
withdraw all thse charges from 120-B, has no merit on the ground
that the charges which are withdrawn are not these charges.The
law of land as settled, speaks that 120-B is an independent offence
21

in itself and accused could be independently convicted for it in


addition to the offences which he himself has committed.
(compilation of judgements of the settled law on the conspiracy is
already submitted during the oral arguments)

Secondly, charge firstly in this case is not limited to the offences


which are charged against this particular accused, it’s a charge of
total huge conspiracy in which all accused including this has
participated and played their respective roles and hence are liable
for conviction for hatching conspiracy as well as for the offences
which are committed by them.

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: -

The prosecutor, firstly being the officer of this court is bound to


assist this Honourable court in all respects therefore, in view of
assisting this Honourable court prosecutor during his arguments
has already submitted that,

1. The orders of the Honourable Apex Court dated 10.09.2010


and 05.08.2013 are having binding effect under article 141 of
The Constitution of India.
22

2. Section 12 of the TADA (P) Act which is reproduced herein


below says,

Section 12 - Power of Designated Courts with respect to other


offences-

(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.

The conjoint reading of these two subsections makes it clear that


during the trial under this special enactment if, the Designated
Court on the basis of the evidence adduced and produced before it
comes to the conclusion that, the accused before it has committed
any other offence under any other provisions of law then, this
being the special enactment enacted to deal with the terrorism, this
court has been empowered to convict and punish that accused
irrespective of the fact as to whether a charge for that offence is
framed against him or not.

Hence, in view of the same the contentions of the accused


advanced on the basis of framing and withdrawing of charges are
futile and sheer waste of precious judicial hours of this Honourable
court.
_______________________________________________________

In context of the charges framed against accused now it would be


relevant here to give the detailed account of evidence which is
23

adduced and produced by the Prosecution to establish the role of


this accused in conspiracy and his overt acts to achieve the object
of conspiracy, before this Honourable Court.

To prove the case of the Prosecution, Prosecution has examined in


all 686 witnesses in its first part of trial and then to substantiate the
substantive charges levelled against the accused who were
subsequently arrested, additional 50 witnesses are examined.
(686+50)

In this context it is pertinent to note that, the accused who are


arrested during the progress of earlier part of this trial and
thereafter, are tried in this part of trial. Prosecution has filed
respective additional charge sheets under section 173(8) of Cr.P.C.
against them. As this Honourable Court every time for its
administrative convenience has numbered them differently,
Prosecution (for the reasons already argued separately) is relying
on every piece of evidence adduced and produced by it in Spl.
Case No. 1/1993, 1-A/1993, 1-B/1993 and 2/2008 against all these
seven accused who are now facing the trial before this Honourable
court.

To prove its charges against this accused, Prosecution is relying on all


these witnesses so also on the documentary evidence produced and
either admitted by the defence or proved by the Prosecution and or
defence till the date in this case.

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.
24

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.

Keeping in mind the above submissions, this Honourable Court is


now required to first appreciate the facts which in this case are
already held to have been proved by the Apex Court.

At this stage it would be of great assistance to highlight the admitted


facts against accused Abu Salem Abdul Qayoom Ansari that have been
held to have been proved conclusively by the Hon’ble Apex Court on
21.03.2013 while considering the appeals of his co-accused from the
earlier part of the trial in this case, the relevant excerpts from the
relevant appeals are thus-
25

I] Ibrahim Musa Chauhan @ Baba Chauhan v State of


Maharashtra through CBI decided on 21.03.2013-
“22. We have considered the entire evidence on record and come to
the following conclusions:
i. The Appellant (A-41) was well acquainted with Abu Salim (AA) who
was working with Anis Ibrahim Kaskar (AA).

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.”

II] In State of Maharashtra through CBI v Ayub Ibrahim Patel


decided on 21.03.2013–

“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 15 th 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 16th January, 1993 Salem came to his house and then
26

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.”

III] In Sanjay Dutt v State of Maharashtra through CBI decided on


21.03.2013–

“Confessional statement of A-53 under Section 15 of TADA was


recorded on 18.05.1993 (17:00 hrs.) and 20.05.1993 (17:30 hrs.) by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said
confession reveals as under:
i) He started a Video Library and Mustafa Dossa @ Mustafa Majnoo (A-
138) - brother of Mohd. Dossa (AA) was a member of his Video Library
and he had 2-3 shops in the same market.
ii) Tiger Memon used to work with Mustafa Dossa and became a friend of
A-53.
iii) A-53 started film distribution and production business by the name of
'Magnum' in partnership with Hanif Kandawala (A-40 - since died).
27

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)

Confessional statement of A-41 was recorded under Section 15 of


TADA on 23.04.1993 (12:45 hrs.) and 25.04.1993 (13:05 hrs.) by Shri
Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said
confession shows that:
(i) A-41 was introduced to Anees Ibrahim Kaskar (AA)-brother of
Dawood Ibrahim and Abu Salem when he had been to Dubai and,
thereafter, he developed good acquaintance with both of them.
(ii) On 15.01.993, A-139 telephoned A-41 and asked him to arrange for
a garage having facility of closing it by shutter.
28

(iii) Abu Salem is an extortionist and worked for Anees Ibrahim.


(iv) Thereafter, A-139 went to the office of A-41 and inquired if he had
received a phone call from Anees Ibrahim. On replying in the negative,
A-139 went to a nearby STD booth and called Anees and then made A-
41 talk to him, at that time, A-41 told him that the garages, as required,
cannot be arranged by him.
(v) Thereafter, at the behest of Anees Ibrahim (AA), A-41 along with A-
139 went in search for garages in Bandra and Pali Hills area and Samir
Hingora (A-53) and Hanif Kandawala (A-40) also joined them.
(vi) Since they did not find any garage, A-139, A-53 and A-41 informed
the same to Anees over phone who was in Dubai and it was decided
that the work of finding out the garage would be carried out the next
day. In the meanwhile, A-139 told A-41 that he will keep 2 to 3 AK-56
rifles with him for 2/3 days.
(vii) On the next day i.e. 16.01.1993, A-139 went to the house of A-41
and told him to take a white coloured Maruti van bearing registration
number of Gujarat, which was parked near the Arsha Shopping Centre,
and to reach the office of Magnum Video. Accordingly, he went to the
said place and from there he along with A-139 and A-53, went to the
house of A-117.
viii) At that time, A-139 introduced A-41 to A-117.
ix) A-41 parked the above white coloured Maruti Van which he had
driven to reach the house of Sanjay Dutt in his garage.
x) There were 9 AK-56 rifles, 80 hand grenades, 1500/2000 cartridges
and 56 magazines in the cavities beneath the rear seat of the aforesaid
Maruti Van as well as inside the lining near the front and rear side
doors, out of which, 3 rifles, 9 magazines, 450 bullets and 20 hand
grenades were asked to be kept by A-139 in Sanjay Dutt's Fiat car.
xi) Accordingly, A-41 shifted the cartridges and magazines to a sports
bag and kept it in Sanjay Dutt's car.
xii) A-53 packed the above mentioned 20 grenades in another sports
bag and kept it in Sanjay Dutt's car and gave another long sports bag
to A-41 in which he filled 3 rifles, 16 magazines, 25 hand grenades and
750 cartridges. A-41 took the said bag to his house and hid it beneath
his bed and on the next day, A-41 loaded all the bullets in the
magazines of the rifles.
Confessional Statement of Manzoor Ahmed Sayyed Ahmed (A-89)
29

Confessional statement of A-89 under Section 15 of TADA was duly


recorded on 24.05.1993 (11:15 hrs.) and 26.05.1993 (17:30 hrs.) by
Shri Krishan Lal Bishnoi (PW-193) the then DCP, Zone III, Bombay.
The said confession reveals as under:
i) A-89 was a good friend of Abu Salem.
ii) He owns a Maruti 1000 bearing No. MP 23 B-9264.
iii) On 22/23rd January, 1993, A-89 met A-139. A-139 gave the keys of
his car to A-41 who kept a black bag of weapons in it.
iv) A-139 and A-89 then went to the first floor of 22 Mount Mary,
Vidhyanchal Apts. They gave the bag to an old lady, viz., Zaibunisa
Anwar Kazi (A-119) and told her that the arms were for the purpose of
causing riots, and were sent by Anees Ibrahim - brother of Dawood
Ibrahim.
v) A-119 looked at the contents of the bag and then kept it at her
residence.
vi) After 8 days, A-139 called A-89 again and together with A-40, they
went to the residence of A-117 where he gave them a blue rexin bag
and a carton.
vii) Abu Salem and A-89 then went to the house of A-119 and gave the
carton and the bag to her. Abu Salem told A-119 to keep those weapons
safely as they were to be used for orchestrating bomb blasts.
22. The abovesaid confessional statements of the co-accused clearly
establish the case against the Appellant-Sanjay Dutt and also
corroborate with each other in material particulars. The following facts
emerge from the abovesaid confessional statements:
(i) The Appellant had acquired 3 AK-56 rifles and its ammunitions
unauthorisedly.
(ii) Samir Hingora (A-53), Hanif Kandawala (A-40) and Salem (A-139)
provided the above said arms and ammunitions to the Appellant at his
residence.
(iii) On being frightened after seeing the weapons, the Appellant
contacted Hanif Kandawala (A-41) and requested him to take away the
weapons.
(iv) Abu Salem came after few days and the Appellant returned 2 AK-
56 rifles and also ammunitions, but retained one AK-56 rifle and some
of its ammunitions.”
30

IV] In Samir Hingora v State of Maharashtra through CBI


decided on 21.03.2013–

“…..103. A perusal of the aforesaid confession shows that the Appellant


was aware about the goods which were to be offloaded and also about
the purpose for which the same were to be used which fact is clear from
his confession, viz., "Anees Bhai telephone to me from Dubai saying
that Baba and Saleem are his men. They will bring one vehicle loaded
with weapons. You make arrangements for off-loading and hand over
weapons to A-117 and the rest will be taken by them for distribution to
other persons". Further, inspite of the unwillingness of Hanif Kandawala,
he proceeded to help the co-accused. So the contention of the Appellant
that he was a mere navigator is misplaced and incorrect.”

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,

1. There was a large criminal conspiracy hatched, as alleged in the


charge firstly.

2. The main conspirators to this conspiracy were Dawood Ibrahim,


Anees Ibrahim, Tiger Memon, Mohammed Dossa, Mustafa Dossa,
and others.

3. There were three landings of arms and ammunitions done by them


in this case.

4. First landing was effected on 09.01.1993 at Dighi jetty by Dossa


Gang.

5. The arms and ammunitions in the first landing were sent by


Accused Mustafa Dossa (brother of accused Mohammed Dossa).
31

6. There were two other landings of arms and ammunitions at


Shekhadi which were done by accused Tiger Memon.

7. Arms and ammunitions which were clandestinely brought in India


were then transported to different places and were then stored with
the co-accused (persons of the confidence) until its usage, which
were then transported to Bombay for its usage.

8. There were several conspiratorial meeting held at different places


at different times and venues.

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.

11. On 12.03.1993, there was a serial of Bomb Blast in Mumbai


and its suburbs at the instance of these accused.

12. The RDX was used in preparation of the Bombs which


exploded on 12.03.1993 and also in those which were diffused by
police on or after 12.03.1993.

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.

Before proceeding to appreciate the evidence on every issue it is


necessary to have a glance at the case of the Prosecution against
accused Abu Salem which is thus,
32

A. Accused Abu Salem was one of the main accused who


hatched, participated and contributed toward the fulfilment of
the objective of the conspiracy.

B. After the demolition of Babri Masjid on 06.12.1992, during the


period of riots which followed the demolition, his co-accused
Mustafa Dossa and his brother had called first conspiratorial
meeting at their house at Dubai.

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.

D. In that first meeting, all of his co-accused discussed and


decided to send weapons to India for taking revenge of
demolition of Babri Masjid and the atrocities committed by
Hindus and police officers during riots followed by demolition
and extract revenge against the Government of India.

E. His co-accused Mustafa Dossa & co-accused Abdul Qayoom


Karim Shaikh sent the first consignment of arms and
ammunitions to India which reached at Dighi Jetty on
09.01.1993, wherein he sent large number of AK-56 Rifles, its
Magazines, Cartridges, Hand grenades and its pins etc. and
took first step towards achieving the object of said
conspiracy.

F. He (Mustafa Dosa) impressed upon his brother and gang


members to get the material landed at Dighi Jetty and
distribute the same to places which were the places of the
persons of his confidence.

G. Total consignment was distributed as per his dictates.

H. He sent a part of the consignment to Sansrod near Bharuch in


Gujarat, part he gave to Tiger Memon and part was retained by
him at the places of persons of his confidence at Agarwada
and other places.
33

I. In the second week of January, 1993; in order to comply with


their role in the conspiracy as per the instructions of Mustafa
Dossa and Anis Ibrahim, Abu Salem Abdul Qayoom Ansari
and Aziz M. Bilakhia (AA) went to Bharuch, Gujarat in a white
Maruti car and exchanged the said white Maruti car with a
white Maruti van (containing specially crafted secret cavities)
brought by Riyaz Ahmed Siddiqui at Maharaja Hotel at
Bharuch in the State of Gujarat; which was then subsequently
used by Abu Salem Abdul Qayoom Ansari to transport 9 AK
56 rifles, 100 hand grenades and some boxes of magazines
from the go-down at Sansrod (20 kilometres from Bharuch,
Gujarat) to Mumbai for using those weapons while executing
the said conspiracy.

J. On 16.01.1993 on the instructions of Anis Ibrahim, Abu Salem


Abdul Qayoom Ansariwith the help of Samir Hingora (A-53)
and Baba Ibrahim Mussa Chauhan (A-41);delivered 3 AK 56
rifles, some hand grenades and 250 rounds to Sanjay Sunil
Dutt (A-117) at his residence.

K. On 16.01.1993 on the instructions of Anis Ibrahim, Abu Salem


Abdul Qayoom Ansaridelivered 3 AK 56 rifles, some hand
grenades and 450 rounds to Baba @ Ibrahim Mussa Chauhan
(A-41); at the residence of Sanjay Dutt, part out of which was
handed over by him to Samir Kurla (another co-accused) on
the instructions of Anis Ibrahim.

L. On 18.01.1993, at the instance of Aziz M. Bilakhia (AA) and


Anees Ibrahim Kaskar (AA); Abu Salem Abdul Qayoom Ansari,
collected 2 rifles and some ammunition back from the
residence of Sanjay Sunil Dutt (A-117) and kept the same with
Zaibunissa Anwar Kazi (A-119) at Vindhyachal Apartments,
Mount Mary Road, Bandra (W).

M. In short, accused Abu Salem,to achieve the object of


conspiracy has played very major and important role in
distribution of arms and ammunitions which were
clandestinely brought in India
34

To prove the case of the Prosecution against this accused,


Prosecution is mainly relying upon,
1. Evidence adduced and produced by two approvers
2. His own confession.
3. The confessions of the co-accused.
4. Evidence adduced by the witnesses.
5. Evidence produced and proved by the witnesses.
6. Searches seizures and recoveries at the instance of accused
or otherwise.
7. Experts’ evidence.

_________________________________________________________
Evidence of PW-1 and PW-2 (approvers) clearly establish the
conspiracy which was hatched in this case.

‘A’ Conspiracy

Findings of the Honourable Apex Court regarding the conspiracy


as extracted from the original judgement i.e. Yakub Abdul Razak
Memon v State of Maharashtra through CBI decided on 21.03.2013
are thus,
“80. In the case on hand, the first condition for applying Section 10 of the
Evidence Act is satisfied by the evidence of PWs 1 and 2 (approvers).
There are 77 confessions in this case which are voluntary and are
corroborated with the other circumstances of the case. These
confessions contain statements inculpating the makers as well as the co-
accused. A common charge of conspiracy was framed against all the co-
conspirators including A-1. This is evident from the charges framed by
the Special Judge which we have already extracted. On all the aforesaid
charges, the Appellant was found guilty by the Designated Court. The
evidence in respect of A-1 is in the nature of the confessions made by
the co-accused persons, the testimony of prosecution witnesses and
documentary evidence on record.

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

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 of the conspiracy. Conspiracy is a continuing offence. Thus, if
any act or omission which constitutes an offence is done in India or
outside its territory, the conspirators continue to be the parties to the
conspiracy. The conspiracy may be a general one and a smaller one
which may develop in successive stages. It is an unlawful agreement
and not its accomplishment, which is the gist/essence of the crime of
conspiracy. In order to determine whether the conspiracy was hatched,
the court is required to view the entire agreement and to find out as in
fact what the conspirators intended to do.”

It would be useful to throw light on a few excerpts from recent


judgements in this context regarding the same-

1) The Apex Court in Gulam Sarbar v State of Bihar now


Jharkhand decided on 07.10.2013 held -
“5. The essential ingredients of Criminal Conspiracy are (i) an
agreement between two or more persons; (ii) agreement must relate to
doing or causing to be done either (a) an illegal act; or (b) an act which
is not illegal in itself but is done by illegal means. What is, therefore,
necessary is to show meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act by illegal means.
Mere knowledge or discussion or generation of a crime in the mind of
the accused, is not sufficient to constitute an offence.
The offence takes place with the meeting of minds even if nothing
further is done. It is an offence independent of other offences and
punishable separately. Thus, the Prosecution is required to establish
the offence by applying the same legal principles which are otherwise
applicable for the purpose of proving criminal misconduct on the part of
an accused. Criminal conspiracy is generally hatched in secrecy thus
direct evidence is difficult to obtain or access. The offence can be
proved by adducing circumstantial evidence or by necessary
implication. Meeting of minds to form a criminal conspiracy has to be
36

proved by adducing substantive evidence in cases where


circumstantial evidence is incomplete or vague. The gist of the offence
of conspiracy then lies, not in doing the act, or effecting the purpose for
which the conspiracy is formed, nor in attempting to do them between
the parties. Agreement is essential. (Vide: Kehar Singh and Ors. v.
State (Delhi Admn.) AIR 1988 SC 1883; State (NCT of Delhi) v.
Navjot Sandhu @ AfsanGuru AIR 2005 SC 3820; Mir NagviAskari
v. CBI AIR 2010 SC 528; Baldev Singh v. State of Punjab (2009) 6
SCC 564; State of M.P. v. SheetlaSahai and Ors. (2009) 8 SCC
617; R. Venkatkrishnan v. CBI AIR 2010 SC 1812; and S. Arul Raja
v. State of T.N. (2010) 8 SCC 233).
6. In Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr.
v. CBI (2008) 15 SCC 49, it was held that in order to come under this
provision it is not necessary for the accused to know the detailed
stages of conspiracy; mere knowledge of main object/purpose of the
conspiracy would suffice for this Section.
Similarly, in Vikram Singh and Ors. v. State of Punjab AIR 2010 SC
1007, this Court dealt with a case where the accused had purchased
for twin injection and chloroform. Thus, it was held that since the
purchase of these materials was an initial step towards
commission of offence, the presence of co-accused Sonia, though
not referred to by the witnesses at the time of actual kidnapping would
not imply that she was not privy to conspiracy and conviction of the
accused Under Section 120B Indian Penal Code was upheld.”

2) In Sheikh Sintha Madhar v State Rep. by Inspector of Police


decided on 13.04.2016 the Hon’ble Apex Court again
observed-
“18…..A conspiracy is always hatched in secrecy and it is very difficult
to gather direct evidence for the proof of the same.”

3) In Md. Jamiluddin Nasir v. State of West Bengal decided on


21.05.2014 the Hon’ble Apex Court held -
“ 107. Having dealt with the conspiracy aspect of the Appellants it will
be worthwhile to refer to the principles applicable to conspiracy as
has been laid down by this Court in various decisions. It will be suffice
if we refer to the decision of this Court reported in Yakub Abdul-Razak
Memon v. The State of Maharashtra, through CBI Bombay JT 2013
(5) SC 142. Part of paragraphs 62 and 65 will be relevant for our
purpose, which are as under:
37

62. An important facet of the Law of Conspiracy is that apart from it


being a distinct offence, all conspirators are liable for the acts of each
other of the crime or crimes which have been committed as a result of
the conspiracy. This principle has been recognized right from the
early judgment in Regina v. Murphy(1873) 173 ER 502....
65. Since conspiracy is hatched in secrecy, to bring home the charge
ofconspiracy, it is relevant to decide conclusively the object behind it
from the charges levelled against the accused and the facts of the
case. The object behind it is the ultimate aim of the conspiracy.
Further, many means might have been adopted to achieve this
ultimate object. The means may even constitute differentoffences by
themselves, but as long as they are adopted to achieve the ultimate
object of the conspiracy, they are acts of conspiracy.
108. Having applied the abovesaid principles to the case on hand, it
must be stated that though theconspiracy in this case was hatched in
secrecy having regard to the various circumstances exhibited in the
form of oral and documentary evidence supported by the confession of
Appellant Nasir, we find the existence of the conspiracy, the object of
the conspiracy and the knowledge on the above for the participants of
the conspiracy were all fully established. The outcome of the
said conspiracy, therefore, attracted the charge Under
Sections 121, 121A and 122 Indian Penal Code read along with120B.
109. In this context, we also wish to refer and rely upon the decision
reported in Govt. of NCT of Delhi v. Jaspal Singh (2003) 10 SCC
586 when the law on this provision has been succinctly stated.
Paragraph 10 along with the extract of the judgment reported
in Baburao Bajirao Patil v. State of Maharashtra (1971) 3 SCC 432
at page 433, can be usefully referred to.
10. So far as the charge Under Section 120B Indian Penal
Code is concerned, it stands proved by showing that two or more
persons have agreed to do or cause to do an illegal act or an act
which is not illegal by illegal means and that some overt act was done
by one of the accused in pursuance of the same. Where their common
object or design is itself to do an unlawful act, the specification of such
act itself which formed their common design would suffice and it would
even be unnecessary or superfluous to further substantiate the means
adopted by all or any of them to achieve such object. All the more so,
when their common object or design appears to be to commit a series
of such serious crimes and proof of any overt act in such cases
also is a mere surplusage and that mere proof that they or some of
them were concerned in the overt acts alleged would, per se, goalong
way to establish that there existed such agreement among them.
38

It is well known and as observed by this Court in Baburao Bajirao


Patil v. State of Maharashtra: (SCC p. 433, para 3)
Indeed it is seldom--if ever--that direct evidence of conspiraciescan be
forthcoming. Conspiracy of the present type from its very nature must
be conceived and hatched in complete secrecy, for otherwise the whole
purpose would fail.”

Therefore, now it is not in dispute as to whether Conspiracy was


hatched or not, now therefore, question before this court is whether
this accused has participated in this conspiracy which is held to
have been proved?

Prosecution has proved its case of conspiracy mainly on the basis


of evidence adduced and produced by two approvers.

The Honourable Apex court while deciding the appeals in our own
case at para 78 onwards has observed that,

“78. Section 10 of the Evidence Act further provides a unique and


special rule of evidence to be followed in cases of conspiracy.

Section 10 reads as under:

10. Things said or done by conspirator in reference to common


design--……………………………………
Illustrations

(i) Reasonable …………………………


(ii) (ii) The facts that…………………

Thus, as per Section 10, the following principles are agreed upon
unanimously:-

1. There shall be prima facie evidence affording a reasonable


ground for the Court to believe that two or more persons
were part of a conspiracy to commit a wrongful act or
offence;
39

2. Once this condition was fulfilled, anything said, done or


written by any of its members, in reference to their common
intention, will be considered as evidence against other co-
conspirators.

3. This fact would be evidence for the purpose of existence of


a conspiracy and that the persons were a part of such
conspiracy.”

The HonourableApex Court has further held that,

“80. In the case on hand, the first condition for applying


Section 10 of the Evidence Act is satisfied by the evidence of
PWs 1 and 2 (approvers). There are 77 confessions in this case
which are voluntary and are corroborated with the other
circumstances of the case. These confessions contain
statements inculpating the makers as well as the co-accused. A
common charge of conspiracy was framed against all the co-
conspirators including A-1. This is evident from the charges framed
by the Special Judge which we have already extracted. On all the
aforesaid charges, the Appellant was found guilty by the Designated
Court. The evidence in respect of A-1 is in the nature of the
confessions made by the co-accused persons, the testimony of
Prosecution witnesses and documentary evidence on record.”

The HonourableAex Court has further observed that,

“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

of the conspiracy. Conspiracy is a continuing offence. Thus, if any


act or omission which constitutes an offence is done in India or outside
its territory, the conspirators continue to be the parties to the
conspiracy. The conspiracy may be a general one and a smaller one
which may develop in successive stages. It is an unlawful
agreement and not its accomplishment, which is the gist/essence
of the crime of conspiracy. In order to determine whether the
conspiracy was hatched, the court is required to view the entire
agreement and to find out as in fact what the conspirators
intended to do.”

Prosecution inthis case, during the course of oral arguments has


submitted a note of arguments on the point of evidence of
approvers and relevant judgements.

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.

For appreciating the role of this accused in main conspiracy this


Honourable court will have to first appreciate the whole facts of the
case in nutshell, which are thus,

1. After the demolition of Babri Masjid riots broke in several


parts of India.

2. Several criminal gangs which were then operating in Bombay


gathered together with an intention to take revenge against
Hindus and the government.

3. Accused Mohommed Dossa and his brother Mustafa Dossa


called one meeting at the house of Mohommed Dossa at Deira
at Dubai.
41

4. Accused Dawood Irahim, Anis Ibrahim, Mohommed Dossa,


Mustafa Dossa, Tiger Memon and several other gang leaders
were present for the said meeting.

5. In that meeting itwas decided that, they shall take revenge of


the demolition of Babri Masjid and the alleged atrocities
which were caused to the Muslims in India and for that
purpose they shall send arms and ammunitions to India.

6. Accused Mustafa Dossa on 09.01.1993 sent first consignment


of arms and ammunitions to Dighi Jetty in Raigad District.

7. Accused Mohommed Dossa arranged for the landing of the


arms and ammunitions.

8. Part of the said consignment was delivered to a man of Tiger


Memon at Panvel.

9. Part of it was stored in the village Agarwada(village of Shabbir


Kadri).

10. The said arms and ammunitions were used for imparting
weapon training to the co-accused at Sandheri hilocks.

11. Part of consignment of arms and ammunitions were sent


to Sansrod near Bharuch in Gujarat and were stored in the
godown of man of Mustafa Dossa.

12. Accused Abu Salem went to godown at Sansrod near


Bharuch and loaded the part of the consignment in a white
Maruti van transported it to Mumbai.

13. Accused Abu Salem stored and distributed the said


weapons and ammunitions to the persons at the behest of
Accused Anis Ibrahim.

14. Co-accused Tiger Memon had brought other two


consignments of arms, ammunitions and explosives.
42

15. On 12.03.1993 all of the above acts culminated into serial


bomb explosions at the behest of these conspirators in
Bombay and its suburbs.

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.

The first portion of the case mentioned hereinbefore is elaborately


discussed in the notes of arguments in case of accused Mustafa
Dossa and Firoz Abdul Rashid Khan

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.

Further case of the Prosecution from the transportation of part of


the consignment from Dighi to Sansrod and onward transportation
and distribution of arms and ammunitions is concerning accused
Abu Salem and is substantiated on the basis of following evidence.

While appreciating following evidence, this Honourable Court will


have to consider the law settled on section 10 of the Evidence act
and section 15 of the TADA act.

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

section 10 of Indian Evidence act anything said done or written by


the co-accused, concerning conspiracy is relevant and substantive
piece of evidence.

The Honourable Apex Court while deciding appeals in our own


case at para 78 has held that

“78. Section 10 of the Evidence Act further provides a unique and


special rule of evidence to be followed in cases of conspiracy.

Section 10 reads as under:

10. Things said or done by conspirator in reference to common


design--Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an actionable
wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention
was first entertained by any one of them, is a relevant fact as against
each of the persons believed to so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing
that any such person was a party to it.
Illustrations

(i) Reasonable ground exists for believing that A has


joined in a conspiracy to wage war against the
Government of India.

(ii) The facts that B procured arms in Europe for the


purpose of the conspiracy, C collected money in
Calcutta for a like object, D persuaded persons to
join the conspiracy in Bombay, E published
writings advocating the object in view at Agra, and
F transmitted from Delhi to G at Kabul the money
which C had collected at Calcutta, and the contents
of a letter written by H giving an account of the
conspiracy, are each relevant, both to prove the
existence of the conspiracy, and to prove A's
complicity in it, although he may have been
44

ignorant of all of them, and although the persons


by whom they were done were strangers to him,
and although they may have taken place before he
joined the conspiracy or after he left it.

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:-

1. There shall be prima facie evidence affording a reasonable


ground for the Court to believe that two or more persons
were part of a conspiracy to commit a wrongful act or
offence;

2. Once this condition was fulfilled, anything said, done or


written by any of its members, in reference to their common
intention, will be considered as evidence against other co-
conspirators;

3. This fact would be evidence for the purpose of existence of


a conspiracy and that the persons were a part of such
conspiracy.

79. This Court, in Nalini (supra), observed as under.

(a) Justice Thomas (para 106-113)Theory of Agency, according to


him, is the basic principle which underlines Section 10of the Evidence
Act. He says that the first condition for application of Section 10 is
"reasonable ground to believe" that the conspirators have conspired
together based on prima facie evidence. If this condition is fulfilled,
anything said by any of the conspirators becomes substantive
evidence for the purpose of corroboration if the statement is in
45

reference to their common intention (This is much wider than its


English counterpart which uses the expression in furtherance of the
common object). The arrest of a conspirator will not cut-off his
connection with the conspiracy.

(b) Justice Wadhwa concurring, (para 575-581)He was of the opinion


that before considering the principle of Section 10 and applying it to
the facts and circumstances, it is necessary to ascertain the period of
conspiracy because any statement made before or after the
conspiracy is hatched will not be admissible under the aforesaid
section. It would also be relevant against a person who entered or left
the time frame during the existence of conspiracy.

(c) Justice Wadhwa (para 663-665)Two conditions are to be followed:


firstly, reasonable ground to believe conspiracy, and secondly,
conspiracy is to commit an offence or an actionable wrong. If both the
conditions exist, then anything said or done can be used as a relevant
fact against one another, to prove the existence of conspiracy and that
the person was a part to it.
80. In the case on hand, the first condition for applying
Section 10 of the Evidence Act is satisfied by the evidence of
PWs 1 and 2 (approvers). There are 77 confessions in this case
which are voluntary and are corroborated with the other
circumstances of the case. These confessions contain
statements inculpating the makers as well as the co-accused. A
common charge of conspiracy was framed against all the co-
conspirators including A-1. This is evident from the charges framed
by the Special Judge which we have already extracted. On all the
aforesaid charges, the Appellant was found guilty by the Designated
Court. The evidence in respect of A-1 is in the nature of the
confessions made by the co-accused persons, the testimony of
Prosecution witnesses and documentary evidence on record.”
As per section 15 of TADA act the voluntary confession of the
accused can be used against co-accused as substantive evidence.
The Honourable Apex Court has held that there are 77 confessions
which are recorded in compliance of section 15 and rule 15 thereof
and therefore are admissible in evidence against maker and co-
accused.
46

The evidence adduced and produced by the Prosecution in this


case which is substantive and substantial to hold accused Abu
Salem guilty of offence of conspiracy is thus,

1. Accused Manzoor Ahmed in his deposition has deposed that


when Abu Salem had taken him toflat of Zaibunissa Qazi (A-
119) for keeping the arms and ammunitions at her house,
accused Abu Salem had told her that those were the weapons
of Anis Ibrahim and those were to be used in a‘GAME’ in
Mumbai.

This part of his confession proves the clear knowledge of Abu


Salem about the main conspiracy. The word‘GAME’ which
hehimself has used suggest a specific huge incident
intended to be effected by Anis which was known to him. i.e.
nothing else than the conspiracy of revenge which was
hatched at Dubai.

2. Usman Musa Lakhat Gani (PW-698) who has identified


accused Abu Salem in court in his deposition has deposed
that, on that day at about 3.30 pm Haji Rafiq came to his
godown in white Maruti Van. Haji Rafiq had come in one van
with one black complexion boy and one fair complexion boy.
(black complexion boy was of 18 – 20 yrs. Whereas white
complexion boy was of 20 – 22 yrs.)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.

This part of his deposition proves that accused Abu Salem


had been to the godown of witness at Sansrod near Bharuch
in Gujarat and had loaded the 9 AK-56 rifles, magazines,
handgrenedes and ammunition in the white colour Maruti van
of Gujarat registration.

3. PW – 1 Babar Khan has deposed about accused Abu Salem


telling him that a van,which was given to Abu Salem was
47

brought by Riyaz.He further deposed that Abu Salem had


asked a man with the muffler on the Bharuch highway, if he
was a man of/sent by Mustafa Dossa ?(while proceeding
towards Bharuch, to bring back the part of consignment,of
arms and ammunitionswhich had landed at Dighi Jetty on
09.01.1993).

This part of his deposition proves the knowledge of accused


Abu Salem about the directions given to him by accused
Mustafa Dossa for storage/transportation of the weapons from
Bharuch to Bombay.

4. PW-688 Nasim has deposed about the incident of the second


week of January 1993 when his friend Shaukat Kadia met him
and told him that he had to go to Bharuch in Gujarat to
handover a vehicle and money to a person of Anisbhai who
was supposed to wait for them there. He had also told that
some secret cavities were made in the vehicle for concealing
arms and ammunition. Shaukat also told him to accompany
him and wait at Mahim Junction between 07.00 and 7.30 pm.
He has further deposed about how Riyaz told him that the van
that they were in was goingto be exchanged with a car at
Bharuch because the van contained chorkhanas which would
be given to man of Anis i.e. to Abu Salem. Riyaz also told him
that he was going to give him money and that “samaan”
would be brought back in the cavities of the same.

This deposition proves the knowledge of Riyaz Siddiqui and


Abu Salem about the specially created cavities in the van and
their intention to carry ‘samaan’ in those cavities. Here it s
pertinent to note that accused Salim Kutta in his confession
has confessed that arms and ammunitions is termed as
‘samaan’ in the gang language.

5. Samir Ahmad Hingora (A-53) in his confession has confessed


that he knew Mustafa Dosa @ Mustafa Majnoo (A-138),Anis
Ibrahim (Abs) brother of Dawood Ibrahim, Ibrahim Abdul
Razak Memon @ Tiger Memon(Abs).

6. Samir Hingora (A-53) has further confessed that, on 15th


January, 1993, Accused Baba Chauhan(A-41) and Salem(A-
48

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.

This part of his confession proves the proximity/closeness of


accused Abu Salem with accused Anis Ibrahim. He (Anis)
himself telling that he is his man speaks a lot, Anis telling him
from Dubai that a vehicle loaded with weapons would be
brought by Abu Salem and Abu Salem bringing his message
proves his knowledge of weapons in the Van and further Anis
telling him that remaining will be taken by Salem for further
distribution attributes the knowledge of main conspiracyto
Abu Salem.

7. Samir Hingora has further confessed that, they both went to


Sanjay Dutt’s house. They found Sanjay Dutt(A-117) talking to
Anees(Abs) on telephone and was enquiring as to when he
was sending the weapons.Then Sanjay Dutt received Saalem
warmly and hugged Saalem. He also asked where the
weapons were 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 weapons
next day morning at about 7:00 am. Saalem told Sanjay Dutt that
he does not know road to their house, upon which Sanjay Dutt
persuaded Samir to accompany Saalem next day morning.

This part of his confession clearly proves the knowledge of


the Sanjay Dutt about closeness of Salem with that of Anis
Ibrahim and that Anis Ibrahim had already informed him that
Salem is carrying huge consignment of weapons with him.
This also clarifies that Abu Salem had clear knowledge of the
arms and ammunitions in the cavities of van on 15.01.1993.
49

8. Abu Salem in his own confessionadmits that the weapons


were that of Anees and Qayoom. He has further confessed
that, The bag which Sanjay Dutt gave him, he was to hide 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.

This part of salem’s confession firstly corroborates the fact


that Manzzor was present with him when they went to the
house of Zaibunissa ahd further corroborates the confession
of Manzoor who in his confession has attributed the clear
knowledge of main conspiracy to Abu Salem. Further that
Salem was actively participating in the conspiracy to achieve
its object.

9. In the Confession of Ibrahim Musa @ Baba MusaChauhan, he


has confessed thathe was introduced with Abu Salem and
Anis by his brother in law Aziz. He also knew that,Salem also
forcibly recovers money on behalf of Anis Ibrahim Kaskar.

10. He has further confessed that, on 15.01.1993 at 5:30 pm


Salem telephoned him and asked him to provide a garage
equipped with closed shutter. After a short time, Salem came
to his office and enquired whether he had received telephone
from Anisbhai. When he replied in negative Salem went to a
STD booth and spoke to Anis. Thereafter, Salem made him to
talk to Anis. When he told Anis that he cannot arrange for a
garage, then Anis asked Salem to wait at his (Baba’s) office.

This part of his confession further strengthens the aspect of


involvement of Abu Salem in storing the weapons until its
usage at some safe place i.e. until the conspiracy is executed.

11. He has further confessed that, 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
50

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.

13. He has further confessed that, on the day when riots in


Behram Pada took place, 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’ (AK-56) and 6 ‘tars’(Magazines) to
SalimKurla. He was also asked to give some “Kadis”(Bullets).
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 and 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 he asked Kurla as to what type of training. In reply,
Salim Kurla kept quiet.

This part of his confession is very important because firstly at


the time when Salem called him he was with Anis Ibrahim,
secondly one of the object of main conspiracy was to provide
the arms and ammunition to the Muslim youths after
imparting them training to use it. Here it is pertinent to note
that Salim Kurla had sent his associates for weapon training
51

in Pakistan and Abu Salem had given the direction to the


Baba to provide 3 rifles and 6 magazines with sufficient
cartridges on the day when the riot broke that it was a
command by him to Baba to act in accordance to achieve the
object of main conspiracy. Which proves that he was the
archer and not the arrow.

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.

This part of his confession further strengthens that salem was


playing main role in conspiracy of distribution of weapons to
the co-accused to achieve the object of conspiracy.

15. Baba in his confession has further confessed that after


arrest of Salim Kurla in extortion case Salem had been to his
place, at that time Salem was having 30 loaded magazines
which were wrapped in plastic / polythene bag and was kept
in a cloth bag. Salem left the bag with him and told him that
he had telephoned Ayub requesting him to keep all the goods
with him. On the same night at 9:00 / 9:30 pm. Ayub came with
one bag in which there was one AK-56 Rifle. He kept those
magazines and that bag at one place.

This part of confession of Baba Musa Chauhan further


strengthens the argument that he was having overall control
over the weapons.

The above referred evidence adduced by the witnesses and


confessions of the co-accused is a substantive evidence which
clearly establish/prove that,
Accused Abu Salem has played a major role in hatching the
conspiracy and in executing the same to achieve the object of it. He
52

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.

The other important piece of evidence which is a substantive piece


of evidence is his own confession.

‘B’ His own confession- executing the same

While appreciating the evidence in the form of Confessions of the


maker and co-accused, this Honourable Court will have to
appreciate it on the background of settled law on this issue, which
says that,

1) The Confession of the accused (maker) is a substantive


evidence against Co-accused, Conspirator or Abettor in the
same case. (A detailed note and compilation of judgements
on this issue is already submitted at the time of arguments on
section 15 of TADA.)

2) Once Prosecution discharges its primary responsibility to


prove that confession is voluntary and truthful the burden of
proving that it is not voluntary is shifted on the shoulders of
the accused. (compilation of judgements on this issue is
already submitted)

3) The corroboration for the contents of the confession can be


sought from the confessions of the co-accused and vice
versa.

4) While appreciating the evidence in confessions of two


accused court is not required to compare those confessions,
Contradictions in confessions need not be considered.
(Reference ;- Ravinder Singh @ Bittu vs. State of Maharashtra
reported in 2002 (AIR 2002 SC 2241), and in the case of Mohd.
53

Ayub Dar V/s State of Jammu & Kashmir reported in 2010(


AIR2010SC2864 ) (copies are already submitted to the Court).

5) Once confession is held as voluntary, Prosecution is not


expected to prove the contents of the confession.

6) The observation of the Apex Court in our own case, about


applicability of Section 10 of the Indian Evidence act

Confession of accused Abu Salem Abdul Qayoom Ansari (A-139)

Proceedings of Confession of Abu Salem (A-139) is recorded by


Mr.O.P. Chhatwal D.I.G. C.B.I.(PW. 684) ON 19.11.2005 AND
20.11.2005 which is at Exhibit 70 and 71

In his confession Abu Salem has confessed that-

1. He was born on 02/02/68 in Saraimeer, Azamgarh.

2. His father was a lawyer. When he was 6-7 years old his father died
in an accident.

3. He has studied up to 9th standard in Saraimeer.

4. He came to Mumbai in 1983 -84 and stayed with his Cousin Akthar
Ali Ansari and worked in his shop, at Musafir Khana.

5. In 1985 Akthar opened a shop named Lufty electronics at Arsha


Shopping Centre, Andheri, Mumbai and he started managing it. he
got license and started selling goods bought from foreigners.

6. He met Aziz who used to do the business of sending passengers.


He had a shop in Mahim near Suleman Usman Bakery on main
road, and his house was near Mahim Police Station. His wife’s
name was Hamida.
54

7. He came to know from passenger that Aziz did the business of


gold and silver also. This was in 1992. Since there was more profit
in gold and silver business he thought that he will also purchase
gold and silver from Aziz and sell it to Marwari Jewellers and make
profit.

8. He talked to Aziz as a passenger and 3-4 times he purchased gold


& silver from Aziz and sold it to Marwari Jewellers at Kandivali and
Andheri and got profit. During these series of meeting he came
close to Aziz and started calling him Aziz Seth.

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.

12. After 2-2 ½ hrs, somewhere after Bhivandi, they reached a


Hotel by the side of the road. He can’t remember the name of the
Hotel. The Gujarati Boy entered the name in the register and took
a room on rent where they rested. Aziz and that Gujarati Boy came
and left the Hotel in between but he remained in the room.

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.

18. In the evening as per Aziz Seth’s Direction he along with


Sameer and Hanif went to the office of the Magnum Video and
along with them went to the Bungalow of actor Sanjay Dutt at
Pali-Hill, Bandra. He does not remember in which car he went.
Sameer and Hanif talked to Sanjay and on asking said that the
things will be brought on next day morning.

19. On the same day, at night Aziz seth asked him to go to


Sanjay Dutt’s house in the Maruti Van along with Sameer and
Hanif and also Baba Chouhan who was the brother in law of
Aziz Seth.

20. Next day morning he went to Baba Chouhan’s house


near Aayesha Shopping Centre and asked him to meet him
(Abu) at the office of Magnum in a white colour Maruti Van of
Gujarat Number.

21. He went to Magnum Office. After some time Baba


Chouhan came in the white Maruti van which was bought by
Riyaz outside the Hotel at Bhivandi. Sameer was also present
at the Magnum Office. From there Baba Chouhan and he took
the Maruti Van and followed Sameer’s car on way to Sanjay
Dutt’s House. The Van was driven by Baba.

22. On reaching Sanjay Dutt’s Bungalow Sameer called his


servant and asked for Sanjay Dutt. Pleasantries were
exchanged after Sanjay Dutt appeared. Sameer told him that,
the luggage was brought. At that time, a police man was
56

present who was asked by Sanjay to go to the other side and


he left.

23. As per Sameer’s direction tool kit was bought by Sanjay


Dutt and with the help of the tool kit, he and Baba Chouhan
opened the sides and flooring of Maruti Van. On opening he
saw that there were 9 to 10 rifles, some 80-90 hand grenades,
some magazines and rounds. he was seeing all this for the
first time. He was surprised seeing all this. he was frightened
as to what is all this. Because he was under the impression
that Riyaz had brought silver in the car.

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.

25. 2-3 days thereafter as per Aziz Seth’s direction,he went


to Sanjay Dutt house along with Hanif Kadawala and his
friend Manzoor Ahmed who was a native of his village. Sanjay
Dutt gave him two rifles some hand grenades and some
rounds/bullets in a bag.

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

to them earlier. He took the bag along withManzoor 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.

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.

30. He 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.

31. 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.

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.

33. On 12/03/1993 when the Bombay Bomb Blast took place he


was at Andheri in his shop. He does not know, as to how these
Blasts happened, why and for what reasons.

34. After some days he came to know about Baba Chouhan’s


arrest from Aziz. Aziz told him to leave Bombay quickly or else they
all will be caught. Because of the weapons incident he was also
frightened and 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
myself and Sameera through an agent.

35. The Passports were made in the name of Akhil Ahmed


Azmi and Sabina Azmi.
58

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.

37. He was arrested on 18/09/2002 from Portugal. After


extradition on 11/11/2002 he was bought to India (Mumbai). He
often used to see Riyaz in the company of Aziz and Anees
Bhai in Dubai.

His confession is fully corroborated by the evidence adduced by


the Prosecution. He has stated that,

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.

Said fact is corroborated by three independent witnesses Viz.

Babar Khan (PW-1 in BBC 1-A and 1-B of 1993) .

1. He has deposed that, in the second week of January, 1993


Mehendi Hasan and Abu Salem went to their office to meet his
59

brother Haider at about 5 to 5.30 pm, they had come in a Maruti-


800 car and talked to his brother Haider, then they came out of his
office and he (witness) also accompanied them while closing the
office.

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.

3. On the next day, at about 6:00-6:30 am Abu Salem, Mehendi


Hasan and one more person went to the witness’ office. Thereafter,
they all sat in a white Maruti 1000 car in order to go to
Bharuch, it was the same car in which they had come from Kalina,
Santacruz in the evening on the previous day.

4. They reached Bharuch in the evening on the same day at


around 7:00-7:30 pm and went to Maharaja Hotel.

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.

6. In the morning, witness woke up late and going down he saw


a white Maruti van with Gujarat registration standing in the
parking lot.

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.

Smt. Noor Jahan (PW-687) :-

1. She has deposed that, in the second week of January, 1993


Riyaz Siddiqui came to her residence and enquired whether
she would like to go to Ajmer. She being devotee of Khwaja
60

Garib Nawaz of Ajmer, she agreed to accompany him. On


same evening, he along with one Shaukat driver came to
her residence in a white Maruti Van . They all left their
residence. Enroute, one Naseem joined them at Mahim. They
all reached Bharuch in the morning. The white Maruti car was
parked in front of Maharaja Hotel at Bharuch. While the
witness went into the Hotel, others remained in the van.

2. She has further stated that, after sometime accused Riyaz


Siddiqui came near the Maruti Van and told them to alight
from the van and board a Maruti 1000 which was also
parked nearby. Accordingly, they all boarded and again
proceeded towards Mumbai. Upon enquiry, accused Riyaz
Siddiqui told her that as some work had cropped up at Mumbai
their visit to Ajmer had to be cancelled.

Shri. Nasim Ahmad Shaikh , (PW 688)

1. He has deposed that, in 2 nd week of January, 1993, his friend


Shaukat Kadia met him and told that he had to go to Bharuch
in Gujarat to handover a vehicle and money to a person of
Anees Ibrahim Kaskar who was supposed to wait for them at
Bharuch. Shaukat had also told him that some secret cavities
were made in the vehicle for concealing arms and ammunition.
He further told him to accompany him to Bharuch.

2. He has further stated that, accordingly, he waited for Shaukat


at Mahim between 7:00 and 7:30 pm. After about half an hour
one white Maruti van bearing Gujarat Registration driven
by Shaukat arrived. In the van apart from Shaukat Kedia,
Riyaz SIddiqui and an old lady were seating in the vehicle.

3. He has further stated that, In the morning they reached


Bharuch and stopped opposite Hotel Maharaja. While they
remained in the van, Riyaz Siddiqui went to Hotel Maharaja
and returned after some time and told them to get in a
Maruti 1000 car which was parked nearby.
61

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.

5. Riyaz Siddiqui being the co-conspirator in this offence his


such statement acquires importance under section 10 of
the evidence act and makes it relevant and admissible
against Abu Salem.

In the circumstance, with the application of Section 10 of Indian


Evidence Act, these witnesses have attributed aclear prior
knowledge of transportation of weapons to Abu Salem.

Therefore, the evidence adduced by these three independent


witnesses fully corroborate to the fact confessed by accused Abu
Salem quoted in para ‘A’ herein to the extent that in the month of
January 1993, on some day he had been to some place beyond
Bhivandi where he exchanged his car with the Maruti Van with
cavities which was brought by Riyaz Siddiqui from Mumbai.

In his (Abu Salem’s) confession he has further confessed that,

B. In the evening as per Aziz Seth’s Direction he (Abu Salem) along


with Sameer and Hanif went to the office of the owners of Magnum
Video and along with them went to the Bungalow of actor Sanjay
Dutt at Pali-Hill, Bandra.

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

Next day morning he went to Baba Chouhan’s house near


Aayesha Shopping Centre and asked him to meet him (Abu) at the
office of Magnum in a white colour Maruti Van of Gujarat Number.
He went to Magnum Office. After some time, Baba Chouhan came
in the white Maruti van which was bought by Riyaz outside the
Hotel at Bhivandi. Sameer was also present at the Magnum Office.
From there Baba Chouhan and he took the Maruti Van and
followed Sameer’s car on way to Sanjay Dutt’s House. The Van
was driven by Baba.

On reaching Sanjay Dutt’s Bungalow Sameer called his servant


and asked for Sanjay Dutt. Pleasantries were exchanged after
Sanjay Dutt appeared. Sameer told him that, the luggage was
brought. At that time a police man was present who was asked
by Sanjay to go to the other side and he left. As per Sameer’s
direction tool kit was bought by Sanjay Dutt and with the help of
the tool kit, he and Baba Chouhan opened the sides and
flooring of Maruti Van. On opening he saw that there were 9 to
10 rifles, some 80-90 hand grenades, some magazines and
rounds.

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.

2-3 days thereafter as per Aziz Seth’s direction,he went to Sanjay


Dutt house along with Hanif Kadawala and his friend Manzoor
Ahmed who was a native of his village. Sanjay Dutt gave him two
rifles some hand grenades and some rounds/bullets in a bag.
This part of his confession is corroborated by an independent
witness PW-218 Pandharinath Hanumant Shinde. And the
confessions of the co-accused Baba Musa Chauhan, Sanjay
Dutt, Salim Hingora and Manzoor Ahmed and is further
corroborated by recoveries of the weapons.
63

Pandharinath Hanumant Shinde. (PW- 218) has deposed that,

1. At the relevant time he was Police Naik. And was posted


as guard at the Bungalow of film actor Sanjay Dutt. from
11.01.1993 .

2. He has further deposed that, on 16.01.1993, he was near the


2nd gate between 07:00 and 7:30 am. At about 7:30 am one
white Maruti van came to Gate No. 2 which was allowed to
enter within the compound by the watchman.

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.

4. He has identified the occupants of van as Ibrahim @ Baba


Musa Chauhan and Samir Hingora in the Court. he has
identified accused Sanjay Dutt also.

5. As, witness Pandharinath Hanumant Shinde has expired


(his death certificate is admitted by this court) he could
not be examined for identification of Abu Salem, however
since he had identified the other occupants of the van, the
confession of Abu Salem is corroborated by his
deposition.

This part of the confession of Abu Salem is further


corroborated by the confessions of co-accused Baba Musa
Chauhan, Sanjay Dutt, Samir Hingora and Manzoor Ahmed.

Co-accused Baba Musa Chauhanin his confession in this


context has confessed that,
64

1. On 16.01.1993, Abu 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 Number was parked near Ayesha
Shopping Centre and directed him to take that van and reach
to office of Magnum. He also gave key of the van.Salem went
ahead in his blue coloured Maruti.
2. At 6:30/ quarter to 7:00 am, he went to office of 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 Sanjay Dutt moved 4/5 vehicles
which were at the garage on another side thereby clearing the
passage leading to garage. Thereafter, the van which he had taken
in the reverse and parked in the garage. Salem opened the
cavity which was under the backside seat with the help of a
spanner and tools and took out 9 AK-56 Rifles one by one.
Thereafter, he opened the inner lining of the front side door of
the car and took out 80 hand grenades (without pins). He also
took out 1500/2000 bullets from the rear side door which were
packed in brown coloured paper packets containing 25 to 30
bullets and were wrapped with rubber bands. Grenades were
also wrapped in brown colour paper. Inside the lining of the
rear door there were 56 magazines. On seeing them Sanjay
Dutt expressed that there would be problem if they were to
blow up/explode. Upon which Salem told him that the hand-
grenades did not have pins attached to them. Therefore,
nothing would happen. He demonstrated him by throwing 2/3
hand-grenades on the ground. Salem made a list of the all
articles. Salem told Sanjay Dutt to keep 3 Rifles,9 magazines,
450 bullets and 20 hand-grenades in the Fiat car of Sanjay
Dutt. He kept bullets, magazines in a sport’s bag and that bag
65

was to be kept in the dicky of Sanjay Dutt’s car. Sanjay Dutt


himself locked the dicky and kept keys in his pocket. 20 grenades
were packed in another sport’s bag like bag and the said bag was
kept by Samir in his car. Samir called for another long sport’s
bag in which A-41 kept 3 rifles, 16 magazines, 25 hand-
grenades and 750 bullets and then he went outside with
Samir. Salem was packing the remaining arms and
ammunition.

Co-accused Samir Hingora (A-53) in his confession in this context


has confessed that,

1. On 15th January, 1993, Accused Baba Chauhan(A-41) and


Salem(A-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 Anees telephoned him
from Dubai saying that Baba Chauhan and Saalem 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.

2. Since his partner Hanif Kadawala(Dead) was not present in the


office, he took them to Hanif’s house near Guru Nanak Park in
Bandra for consultation. Hanif Kadawala spoke to
Anees(Abs) in Dubai over telephone from ISD centre near
his house and also told him that he will not undertake such
work. He had no talk with Anis, however, on the request of
Saalem, Hingora agreed to take him to Sanjay Dutt’s(A-117)
House.

3. Immediately, they both went to Sanjay Dutt’s house.They


found Sanjay Dutt(A-117) talking to Anees(Abs) on
telephone and was enquiring as to when he was sending
the weapons.Then Sanjay Dutt received Saalem warmly
and hugged Salem. He also asked where the weapons were
66

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.

4. Next day morning he went to his office at about 6:30 am.


There he met Saalem and Baba Chauhan (A-41). Baba
Chauhan was having a Maruti Van; in which both of them sat
and Samir in his own car led them to Sanjay Dutt’s house. This
time also Sanjay Dutt(A-117) hugged Saalem warmly.
Sanjay Dutt asked his driver to remove all the vehicles from the
garage. Accordingly, Mohd. his driver removed all the vehicles.
Thereafter, Baba Chauhan parked his Maruti van. He asked for
spanners and screw drivers. Sanjay Dutt asked Mohd. to bring it
and gave them to Baba Chauhan.

5. Both Baba Chuhan (A-41)and Saalem went into the Maruti


van and started opening cavities. After sometime Saalem
asked for a bag and piece of cloth. Upon this Sanjay
Dutt(A-117) brought a black coloured airbag and 2 bed
sheets. Saalem enquired from Sanjay Dutt as to how many
he wanted? Sanjay Dutt in return asked how many they
have?

6. Saalem told Sanjay Dutt(A-117) that he has 9 AK – 56 Rifles,


80 hand-grenades and ammunition. He also saw 9 AK-56
Rifles, handgrenades and some magazines and packets of
ammunition on the floor of the Maruti van. Saalem wrapped
3 AK-56 Rifles and also some magazines in a bedsheet as
per request of Sanjay Dutt. Sanjay Dutt also asked him to
give 20-25 handgrenades. Accordingly, Saalem put some
handgrenades in the black coloured bag alongwith
ammunition. Saalem asked Sanjay Dutt to keep the rifles
then as per the instructions of Sanjay Dutt, the rifles etc.
were kept in the Fiat car.Thereafter, Sanjay Dutt told his driver
to lock the Fiat car and give the keys. His driver complied with
Sanjay Dutt’s orders. Then Salem asked Sanjay to take the
bag. Sanjay Dutt asked Salem to keep the bag in Samir’s car.
67

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).

Evidence corroborating his confession –

P.W. 218 On guard duty at bungalow of Sunil Entire evidence


PH Shinde Dutt / on 16/1/93 three persons
came in Maruti Van / had a talk with
A-117 / identified A-41 & 53 in
Identification Parade held at Sitaram
Bldg.
P.W. 469 SEM –TIP Parade conduced on
Thakur 27.5.93 at Sitaram Bldg. / for PW
Ex. 1521 218 /identified A-41 & 53 / memo Ex.
1521.
PW 493 According sanction Ex. 1689 for Entire evidence
Yadav Prosecution of A-41, A-117, 118,
Sanction 124, 125, 120, 40 & 53 for the
Ex. 1689 offences under Arms Act on reports
of P.W. 680.
PW 499 According sanction Ex. 1717 for
Sahani Prosecution of A 110 under
Sanction Explosive Substances Act.
Ex. 1717

Co-accused Sanjay Dutt (A-117) in his confession in this context


has confessed that,

1. In the middle of January, 1993 at 9:00/9:30 pm Hanif (Dead)


and Samir(A-53)came to their house along with one
Salem(A-139). Sanjay Dutt had met Salem earlier on one or
two occasions also. They told that they would be coming
next day morning with weapons to be delivered to him.
Thereafter, they went away.
68

2. Next day Samir(A-53), Hanif(Dead) and Salem alongwith one


more person came to his house in a Maruti van which they
parked in the Tin shed. One person was sitting inside the
van. After about 15-20 minutes he took out 3 AK-56 Rifles.
Some cloth was brought from his house. They wrapped the
Rifles and gave to him. When he opened and saw 3 Rifles,
magazines and some 250 rounds. The rounds were kept in
another handbag fetched by him.

3. On seeing the Rifles, he was scared and told them that he


wanted only one weapon. Hanif (Dead) and Salem told him
to keep all the three for the time being and they would take
the other two back after some time. They also showed brown
coloured hand grenades. For which he refused and asked them
to leave his house immediately.

4. He kept the 3 Rifles, Magazines, ammunition etc. in the


dicky of his Fiat car No. MMU 4372 and locked it. On the
same night he kept them in a hand bag and shifted to his private
hall which is on the 2nd floor of his bungalow.

5. After 2 days he contacted Hanif Kadawala(Dead) and told him to


take away the weapons. Hanif told him that he would get it
collected through somebody. After two days Samir(A-53),
Hanif (Dead)and Salem came to his house in the evening in
a car. He returned two AK-56 Rifles and some ammunition.
He kept one AK-56 Rifle and some ammunition. He also told
them that after the riots would subside they should take
away the 3rd AK-56 Rifle and ammunition to which they
agreed.

Co-accused Manzoor Ahmed Sayyed Ahmed (A-89) in his


confession in this context has confessed that,

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

he went to the office of Magnum Videos. Salem went inside the


Magnum video office and came out talking to a man. On reaching
the car the said person told Salem to proceed to Sanjay
Dutt’s(A-117) residence and he would follow them. After
boarding the car, Salem told him that the person that he was
talking to was Hanif (Dead) and that he was the owner of Magnum
Videos. Hanif was following them in his white Maruti 1000 vehicle.

2. On reaching Sanjay Dutt’s(A-117) residence at Pali Hill.


Sanjay Dutt came and met them near their car, Salem(A-139)
told him that out of the 3 Rifles given to him by Anis
Bhai(Abs), 2 Rifles are to be given to somebody else on the
instructions of Anis bhai. Similarly, if Sanjay Dutt was no
longer in need of hand-grenades, to handed over to him, as
those are also to be handed over to somebody.

3. 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.

Therefore, the evidence adduced by the independent witness and


confessions of the co-accused fully corroborate to the facts
confessed by accused Abu Salem quoted in para ‘B’ herein to the
extent that on 16th January 1993, accused had been to Sanjay Dutt’s
house in a white Maruti Van and then Abu Salem delivered him 3
AK-56 rifles, Handgrenedes and ammunition.

In the circumstance, with the application of section 15 of TADA


(P) Act and 10 of the Indian evidence act, this witness and
confessions of his co-accused have attributed a clear prior
knowledge of weapons concealed in the White Maruti van which
he had brought from Bharuch. This evidence also establish his
role in the conspiracy and his close contacts with Anis Ibrahim
on whose instructions he had brought the weapons and
ammunition in Mumbai to achieve the object of conspiracy.
70

This part of his confession is further corroborated by the


confessions of his co-accused Yusuf Nulwala (A-118),Kersi
Adjenia (A-124) and Manzoor Ahmed Sayyed Ahmed (A-89)

Co-accused Yusuf Nullwala (A-118) in his confession in this context


has confessed that,

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.

2. Next day he went to Sanjay Dutt’s (A-117) residence and took


that bag from the second floor room and opened it. He found
AK-56 Rifle, 2 empty magazines and 250 rounds of AK-56.
Also one pistol and one loaded Magazine of pistol.

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.

4. He explained the whole story and how Sanjay Dutt (A-117)


was in trouble. Upon which both went to his godown. He
himself tried to cut and melt it with the gas cutter but could
not succeed. Therefore, Adjenia (A-124) helped him to melt
the same.

5. Thereafter, he gave the pistol to Adjenia (A-124) and told him


to melt it after sometime. He himself collected the melted
71

remnants of AK-56 Rifle and threw them in the sea at Marine


Drive.

6. Next day, he kept rounds of AK-56 Rifle in 2 separate bundles.


Wrapped them in paper and threw them in the sea opposite
Oberoi Tower and went home.

7. Next day Sanjay Dutt (A-117) called him at his residence over
telephone. He told Sanjay Dutt that his instructions were
complied with.

Co-accused Kersi Adjenia (A-124) in his confession in this context


has confessed that,

1. In the first week of April, 1993, Yusuf Mohsin Nullwala (A-118)


came to him at 10:00 am with black rexin bag. He told that
Sanjay Dutt(A-117) had telephoned him and told that he had
one AK-56 Rifle and other things which were lying at his
house which the Police had come to know.

2. Since he was in great trouble, Sanjay Dutt had requested him


to collect it and destroy it. So, Nullwala had gone to Sanjay
Dutt’s residence and collected it. He further told that he has
already cut it into pieces and wanted to completely destroy it
with gas cutter. Nullwala showed him the cut pieces of AK-56
Rifle.

3. Since he had read in the newspaper about Sanjay Dutt (A-117)


possessing an AK-56 Rifle, initially he resisted and told
Nullwala that he would not like to get involved in it.

4. Then Yusuf Nullwala (A-118) told him that if he goes to


somebody else, he is likely to be caught. Instead requested to
provide gas cutter which he himself would do. Therefore, he
gave his gas cutter. Then Nullwala went to his godown and
started destroying pieces of AK-56 Rifles with gas cutter.
72

5. He followed Nullwala (A-118) to his godown to just over see no


mishap takes place. But Nullwala was not able to properly
destroy the Rifle. Therefore, he adjusted the gas and started
melting the pieces of Rifles with the gas cutter. Due to grease
on the Rifle, lot of smoke was coming out. With great difficulty the
AK-56 Rifle was destroyed. Then Nullwala took out one pistol from
the bag and wanted to destroy it.

6. Due to the smoke, which emanated during destroying of AK-56


Rifle, he had some breathing problem. Moreover, Nullwala (A-118)
wanted him to destroy the pistol also with gas cutter.
Therefore, he told Nullwala to leave the pistol which he would
destroy some other time.

7. Nullwala (A-118) collected the remnants of AK- 56 Rifle in a


plastic bag and gave pistol to him for destruction and went
away.

8. After two days, Nullwala (A-118) enquired whether the pistol


was destroyed. He told Nullwala not to worry about it.

9. He was to go to Kolkata. He telephoned his friend, Rusi


Framrose Mulla (A-125). Next day morning Rusi came to his
house. He gave him the pistol and told him to keep in safe
custody as he was proceeding to Kolkota. He also told him that
he would collect the pistol on his return from Kolkota. However, he
did not tell Rusi about the circumstances under which the pistol
had come to him.

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.

This part of his confession is further corroborated by the


recoveries from Sanjay Dutt and others which is established by
continuing panchanama at Exhibit 1068 A-E.
73

Recovery at the instance of accused Sanjay Sunil Dutt (A-117) in the


presence of independent panch witness PW-211 Mr. Sawant by
officer PW-680 Mr. Walishetty on 19.04.1993, the events were
unfolded as follows-

Accused Sanjay Dutt made a voluntary statement in Hindi language


and as the said accused had started making statement, PW-680
instructed API Shri Joshi to record the same in the memorandum
panchanama. Both the panch witnesses stated that the said
memorandum panchanama was correctly recorded and, thereafter,
signed upon the same. The said panchanama is at ''Exhibit 1068'' .

Then accused Sanjay Dutt lead them to Husseini Building at Dongri,


Umar Khadi as instructed by accused Sanjay Dutt and all of them
alighted the said vehicle. Accused Sanjay Dutt went on the 2 nd floor of
the said building and PW-680, panch witnesses and other staff followed
him. accused Sanjay Dutt went to the Room No.29 on the 2nd floor
and knocked the closed door of the said room. After moments, the same
was opened by a lady and accused Sanjay Dutt asked her as to where
Yusuf Nulwala was. the said ladytold that she was sister-in-law of
Yusuf Nulwala and her name was Jumma Saifuddin Nulwala. She told
that, Yusuf Nulwala was alreadyarrested by Dongri Police Station. Shri
Joshi recorded the said events at the said place. Thereafter, the said
record was read over to panch witnesses and they signed upon the
same. PW-680 also signed upon the same after he had read the same
and found that the same was correctly made. It is at Exh.1068-A.

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.

Thereon,Yusuf Nulwala made a statement in Hindi and as instructed


by PW-680, API Shri Joshi recorded the same in continuation of the
panchanama drawn on the said day. Further panchanama drawn in the
74

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.

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.
75

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 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 aboveall recoveries are held to have been proved by the


Hon’ble Designated court in its final judgment (in part 37);

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.

His confession is further corroborated by the recovery of


weapons from co-accused Baba Musa Chauhan and Ayub Patel.

Confession of the accused Ibrahim Baba Musa Chauhan is corroborated by following evidence-

P.W. 218 PH On guard duty at bungalow of Sunil Entire evidence


Shinde Dutt / on 16/1/93 three persons
came in Maruti Van / had a talk with
A-117 / identified A-41 & 53 in
Identification Parade held at
Sitaram Bldg
P.W. 469 SEM - TIP Parade conduced on
Thakur 27.5.93 at Sitaram Bldg. / for PW
218 / identified A-41 & 53 / memo
Ex. 1521.
PW 45 Karkera Panch & Police Officer - regarding PW-45 Ch.para-
24 uptil 31
PW 596 HB making of statement by A-41 on Cr.para- 32 to
Pawar 1.4.93 recorded under 35, 62 to 71
memorandum panchanama Ex.171/
Memo Panch A-41 leading to cement structure in
Ex. 171 vicinity of Andheri Bus Terminus & PW-596
Discov. Panch taking charge of AK-56 rifle Art.97, Ch.para- 28 to
10 empty rifle. magazines Art. 98 (i) 36
Ex. 172 Cr. Para-37 to
to (x), 534 cartridges Art. 99 colly,
100 colly, 101 colly & handgrenades 60 (common)
Art. 103 (i) to (x), Art. 104 (i) to (xiii),
Art. 105 & Rexene bag Art. 106
under panchanama Ex.172.
77

PW 662 PI WR Regarding sending of articles to CA Entire


on 25.8.93 vide letter Ex.2439 and
Kulkarni receiving CA report Ex. 2439-A
about the same.
Regarding Ex.2441 being the
correct office copy of letter dt.
6.4.93 under which 12 articles
mentioned therein were sent to CA
by PI Pharande and receiving CA
report Ex. 2441-A & 2441-B about
the same.
PW 493 Yadav According sanction Ex. 1689 for Entire Evidence
Prosecution of A- 41,A-
Sanction Ex. 117,118,124,125,120,40 & 53 for
1689 the offences under Arms Act on
reports of P. W 680
PW 45 Karkera Panch & Police Officer - regarding PW-45 Ch.para-
making of statement by A-41 on 24 up til 31
1.4.93 recorded under Cr.para- 32 to
memorandum panchanama Ex.171/
A-41 leading to cement structure in 35, 62 to 71
vicinity of Andheri Bus Terminus &
taking charge of AK-56 rifle Art.97,
10 empty rifle magazines Art. 98 (i)
to (x), 534 cartridges Art. 99 colly,
100 colly, 101 colly & handgrenades
Art. 103 (i) to (x), Art. 104 (i) to (xiii),
Art. 105 & Rexene bag Art. 106
under panchanama Ex. 172.

Recovery at the instance of 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.

Evidence regarding the recovery at the instance of A-72 :-


78

PW 44 Panch & Officer regarding drawing


Panch PM memo. Panchanama Ex. 154 of
Chalke statement made by A-72 on 2.4.93
& A-72 leading them to R.hlo.202 Entire
PW 605
of Noora Bldg, at Oshiwara &
PSI
under discov. Panchanama Ex.
Nerlekar
155 taking charge of PW 44 panch
Memo PM Handgranade Art 72(i) to (xiv)
Panchnama 72 (xv) & plastic bag Art (xvi)
Ex. 154
Disc. Panch
Ex. 155
PW 662 Sr. PI DCB, CID forwarding the Ch. Para : 10 & 11
WR components of recovered material Cr. Para : Entire
Kulkami to CA vide Ex. 2439 dt. 24/08/93
through PW 604 and receiving CA
Ex. 2439 let
report Ex. 2439-A
to CA. CA
rep Ex
2439 - A

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

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 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.”

Taking liberty which is granted by the Apex Court accused had


recalled the witnesses on this joint panchanama but no serious
80

cross was conducted and nothing adverse is brought on record


which could dent the said evidence on recovery.

C In his confession he (Abu Salem) has further stated that,

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)

Co-accused Manzoor Ahmed Sayyed Ahmed (A-89) in his


confession in this context has confessed that,
81

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.

2. Thereafter, he and Abu Salem(A-139) took the vehicle to 22,


Mount Mary Road, and went to first floor flat of Zaibunisa Anwar
Kazi (A-119) at Vindhyachal Apartment. They met and gave the
bag and carton to a middle aged woman whom he was calling
mummy. The said woman opened the door slightly, saw and closed
again. She kept both the packages inside the room. Thereafter,
Salem told that woman addressing her as Mummy that the
weapons are costly and Anis bhai (Abs) has sent them from
Dubai and they are to be used for GAME in Bombay .
Therefore, asked her to keep them safely and if need be he would
come and collect them. He dropped Salem near Palmgrove Hotel
at Juhu and went back to his residence.

In the circumstance, with the application of section 15 of TADA


(P) Act and section 10 of the Indian evidence act,
thisconfessionof his co-accused have corroborated this part of
his confession quoted in para ‘C’ herein above.

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.

D He in his confession has further stated that,

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

He was arrested on 18/09/2002 from Portugal. After extradition on


11/11/2002 he was bought to India (Mumbai).
He often used to see Riyaz in the company of Aziz and Anees Bhai
in Dubai.
This fact of obtaining passports in the false name was the fact in
his exclusive knowledge and hence acquires a great importance to
substantiate the voluntary and truthful characteristics of his
confession.
This fact of his obtaining the passport in the false names is
corroborated by an independent witnesses,

Shri Marshal Kajur , (PW 690),in his deposition has deposed


that,

1. Hewas the Supdt, Reginal Passport Office, Lucknow.

2. Shri Rakesh Shankar was the RPO, Lucknow on 06.07.1993.

3. The original file through which passport in the fake name,


Akil Ahmad Azmi was issued to accused Abu is identified
by him the same and is marked as Exhibit – 55.

4. He has further confirmed that, vide the said file a passport


was issued to person in the photograph in the name of Akil
Ahmad Azmi.

His further confession on the issue of his extradition and arrest is


not a disputed fact those are corroborated by the independent
witness and the following documentary evidence.

Prosecution is relying upon the confession of accused Abu Salem


Abdul Qayoom Ansari @Abu Salem (A-139) as a substantive piece
of evidence which is substantial and paramount to prove the
conspiracy & roles played by him along with accused Mustafa
Dossa, Riyaz Siddiqui and Kayuum Shaikh (accused before the
Court) and other co accused abettors and conspirators, their
83

specific roles and corroborations are given in their respective


notes of arguments.

The Proceedings of confession of accused Abu Salem Ansari (A-


139) was recorded by Mr. O.P. Chhatwal on 19.11.2005 & 20.11.2005,
which are at Exh. 70 and 71. Mr. O.P. Chhatwal was examined by
Prosecution as PW- 696, he has certified and deposed about his
satisfaction about the voluntariness and truthfulness of the
confession. He has also given the details which clearly show that every
precaution reasonably expected to be taken by a recording officer as
contemplated u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been
meticulously taken further, the guidelines laid down by the Hon’ble Apex
Court in case of Kartar Singh v State of Punjab reported in 1994 SCC (3)
569 have also been complied with.

He was extensively cross-examined by Defence, he sturdily withstood


the said gruelling cross-examination. Further, accused during his cross
examination could neither counter the evidence led by him nor could it
lead any defence witness for that purpose. In the circumstance this
confession of the Accused Abu Salem is a substantive piece of
evidence and can be safely used against him and his co
accused.Further the questions raised that were intended at denting
the case of the Prosecution vide the cross-examination have been
succinctly addressed and answered in the judgement of this
Hon’ble Court in its judgement delivered in 2006, 2007 and/or have
been dealt with by various judgements of the Hon’ble Apex Court
which stands now as the settled law on the same.

Defence during his cross examination has tried to raise anissue


that since Mr. Chhatwal was the supervising officer of this case and
nodal officer for extradition of this accused the confession
recorded by him cannot be said to be a voluntary confession,

in this context it would be appropriate to point out the settled law


on this issue which clearly says that whether an officer who
recorded the confession was investigating officer or supervisory
84

officer is immaterial only requirement of law is ‘his satisfaction


about voluntariness of the maker’ the law settled is thus,

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–

“91. In Jayawant Dattatray Suryarao v. State of Maharashtra (2001)


10 SCC 109, this Court considered in detail the evidentiary value and
admissibility of a confessional statement recorded Under Section 15 of
TADA and held that it is a settled legal position that a confessional
statement recorded by a police officer is a substantive evidence
and it can be relied upon in the trial of such person or co-accused,
abettor or conspirator so long as the requirements of
Section 15 and TADA rules are complied with. It was observed:

60... Confessional statement before the police officer Under


Section 15 of the TADA is substantive evidence and it can be relied
upon in the trial of such person or co-accused, abettor or
conspirator for an offence punishable under the Act or the Rules.
The police officer before recording the confession has to observe
the requirement of Sub-section (2) of Section 15. Irregularities here
and there would not make such confessional statement
inadmissible in evidence. If the legislature in its wisdom has
provided after considering the situation prevailing in the society
that such confessional statement can be used as evidence, it
would not be just, reasonable and prudent to water down the
scheme of the Act on the assumption that the said statement was
recorded under duress or was not recorded truly by the officer
concerned in whom faith is reposed.”

In case of Devender Pal Singh v. State of NCT of Delhi (2002) 5 SCC


234, Honourable Apex Court considered, whether the accused making
the confessional statement can be convicted on the basis of the
confession alone without any corroboration. It was held that once it is
found that the confessional statement is voluntary, it is not proper
to hold that the police had incorporated certain aspects in the
85

confessional statement which were gathered during the


investigation conducted earlier. It was held that the so-called
retraction by the Appellant, was made long after he was taken into
judicial custody.

In case of Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and


Anr. v/s C.B.I. through its Director Honourable Apex court has held
thus,
“48. In their statements, PW-103, Shri Harbhajan Ram and PW-104, Shri
A.K. Majumdar explained the details of the mode and manner in which
confessions of the accused were recorded. Both of them categorically
stated that before recording confession each of the accused was told
that he is not bound to make confession and that the same can be used
against him and whether there was any threat, coercion or allurement for
making confession. According to the two witnesses, each of the accused
expressed unequivocal willingness to confess his role in the crime by
stating that he knew that the confession can be used against him, that
there was no threat, coercion or allurement and that he was making
confession voluntarily. According to PWs 103 and 104, the statements of
the accused were recorded by the stenographers at verbatim and each
one of them appended signatures after satisfying that the same was
correctly recorded. In reply to the suggestion made to him in cross-
examination that the accused had been subjected to torture, PW-104
categorically stated that none of the accused was ill-treated by him or
any other officer/official. The defense had made suggestion about the
nature and extent of supervision exercised by PW 104 but it was not put
to them that either instructed the Investigating Officers to torture the
accused and forced them to confess their guilt. In this view of the
matter, the confessions of appellant Nos.A-4 to A-8 and A-10 cannot
be held inadmissible on the premise that before recording of
confessions they were in police custody and the statements were
recorded by the officers supervising the investigation.”

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

or without proper application of mind. The second ground on which they


are held inadmissible is that they were recorded in breach of Rules 15(2)
and 15(3) of the TADA Rules and also in breach of the requirements of
Section 16 and the High Court Criminal Manual. The learned trial Judge
held that the TADA Act was applied in this case without any justification.
The permission was granted in that behalf without any application of
mind. According to the trial Court there was (no?) material on the basis
of which TADA Act could have been Invoked at that stage and that most
probably the said Act was invoked in order to defeat the bail application
filed by two accused in the High Court. In our opinion the trial Court was
wrong in taking this view. We have already pointed out earlier that
Deshmukh had collected enough material on the basis of which
reasonable satisfaction could have been arrived at that the acts
committed by the two gangs were terrorist acts. It is no doubt true that it
was wrongly reported by Deshmukh that Section 5 was also applicable
in this case and that without proper verification sanction was granted to
proceed under that section also. The applicability of Section 5 depended
upon existence of a requisite notification by the State Government. It
was wrongly reported by PI Deshmukh in his report that such a
notification was issued and relying upon his statement the higher officer
had given the sanction. Merely on this ground it cannot be said that
Shinde has exercised the power under Section 15 of the TADA Act mala
fide. The learned trial Judge has also held that it was not fair on the part
of Shinde to record the confessions as he was also supervising the
investigation. Shinde has clearly stated in his evidence that he had
made attempts to find out if any other Superintendent of Police was
available for recording the confessions and as others had declined to
oblige him he had no other option but to record them. We see no
illegality or impropriety in Shinde recording the confessions even
though he was supervising the investigation. One more flimsy
reason given by the trial Court for holding that the power under
Section15 was exercised mala fide is that the accused making the
confessions were not told that they have been recorded under the TADA
Act. No such grievance was made by the accused in their statement
under Section 13. On the other hand, it appears from the confessions
themselves that the accused were made aware of the fact that those
confessions were recorded under the TADA Act.”
87

It is further settled that, once it is primarily proved that while


recording the confession provisions of section 15 and rule 15 are
properly complied with, the burden of proving that confession is
not voluntary is shifted on accused. Thus the law settled is,

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–

93. In Mohmed Amin v. Central Bureau of Investigation (2008) 15


SCC 49, it was observed:

28. In Devender Pal Singh case majority of three-Judge Bench


made a reference to Gurdeep Singh case and Nalini case and held
(at SCC pp. 261-62, para 33) that whenever an accused challenges
the voluntary character of his confession recorded Under
Section 15(1) of the Act, the initial burden is on the Prosecution to
prove that all the conditions specified in that section read with Rule
15 of the Rules have been complied with and once that is done, it is
for the accused to show and satisfy the court that the confession
was not made voluntarily. The Court further held that the
confession of an accused can be relied upon for the purpose of
conviction and no further corroboration is necessary if it relates to
the accused himself. However, as a matter of prudence the court may
look for some corroboration if confession is to be used against a co-
accused though that will be again within the sphere of appraisal of
evidence.

Therefore, the law settled on this issue is that, if the compliance of


section 15 and rule 15 of TADA (P) Act is properly done then the
burden of proving that it was not a voluntary confession is shifted
on the accused. In this case the deposition of Mr.Chhatwal read
with the confession on record speaks the clear compliance of
section 15 and rule 15 of TADA and the accused has not even tried
88

to rebut the presumption of voluntariness of the said confession


either by cross examining the witnesses or by leading any
evidence and hence the same is not rebutted resultantly being a
admissible confession against its maker and his all co-accused in
this case.

In case of Mohammed Amin (supra), Apex Court convicted the


accused on the basis of their confessions and confessional statements
of co-accused. It was held that there is no requirement of
corroboration if the confessions are proved to be made voluntarily,
and the Rules applicable have been complied with. The following
observations are pertinent:

The ratio of the above-noted judgments is that if a person accused of an


offence under the Act makes a confession before a police officer not
below the rank of Superintendent of Police and the same is recorded by
the officer concerned in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds or images
can be reproduced, then such confession is admissible in the trial of the
maker as also the co-accused, abettor or conspirator not only for an
offence under the Act but also for offence(s) under other enactments,
provided that the co-accused, abettor or conspirator is charged and tried
in the same case along with the accused and the court is satisfied that
requirements of the Act and the Rules have been complied with.

Therefore, If the court is convinced that the probative value of the


confession is such that it does not require corroboration, then the
same can be used for convicting the maker and/or the co-accused
under the Act and/or the other enactments without independent
corroboration.

The defence during the cross examination of witnesses has tried to


show that the confession of the accused is not truthful however it
is pertinent to note here that the law settled on this issue says that
Prosecution need not prove the each and every fact of confession.
The law settled on this issue is thus,
89

In Parmanand Pegu v. State of Assam [2004 (7) SCC 779] Apex


Court while adverting to the expression "corroboration of material
particulars" used in Pyare Lal Bhargava's case clarified the position thus:
"By the use of the expression 'corroboration of material particulars', the
Court has not laid down any proposition contrary to what has been
clarified in Subramania Goundan case as regards the extent of
corroboration required. The above expression does not imply that
there should be meticulous examination of the entire material
particulars. It is enough that there is broad corroboration in
conformity with the general trend of the confession, as pointed out
in Subramania Goundan case."

The analysis of the legal position in paragraphs 18 & 19 is also worth


noting:

"Having thus reached a finding as to the voluntary nature of a


confession, the truth of the confession should then be tested by
the court. The fact that the confession has been made voluntarily,
free from threat and inducement, can be regarded as presumptive
evidence of its truth. Still, there may be circumstances to indicate
that the confession cannot be true wholly or partly in which case it
loses much of its evidentiary value.

In order to be assured of the truth of confession, Apex Court, in a


series of decisions, has evolved a rule of prudence that the court
should look to corroboration from other evidence. However, there
need not be corroboration in respect of each and every material
particular. Broadly, there should be corroboration so that the
confession taken as a whole fits into the facts proved by other
evidence. In substance, the court should have assurance from all
angles that the retracted confession was, in fact, voluntary and it
must have been true."

So far as the retraction of this confession of accused Abu Salem is


concerned the main points which are required to be considered are
thus,
90

1. The retraction is done after about four months.

2. The accused was allowed to meet his lawyer every alternate


day from the date of his arrest.

3. He was produced before the CMM on the very next day of


recording of his confession when he did not complain
anything to CMM.

4. During these four months , several times he was produced


before this Honourable Court. When he did not complain any
thing even to this Honourable court.

5. As per the orders of this Honourable court, from the day of


his arrest he was checked by the medical officers on every
alternate day.

6. Even the miscellaneous application which is filed by him for


retracting the confession does not give the proper
explanation for this delay.

Hence in the circumstance it would be safe to say that the


retraction is an afterthought and is done on the legal advice.

It would be appropriate here at this juncture to give the settled law


on this issue which is thus,

In Abdul Wahab Abdul Majid Shaikh and othrs. Vs State of Gujarat


Apex Court has held that, Confession made before Police officer is
admissible under TADA act. Subsequent retraction of confession
by confessor is not a valid ground to reject the confession.
Confession can be rejected only if at the time of making confession
accused was subjected to coercion, threat or any undue influence
or was offered any inducement to give the confession.

In State of Maharashtra v. Bharat Chaganlal Raghani (2001) 9 SCC


1, this Court mainly relied on the confessional statements of the
accused which were also retracted. It was held that there was
91

sufficient general corroboration of the confessional statements


made by the accused. The Court found sufficient corroboration in
the testimony of the witnesses and the recoveries pursuant to the
statements given by the accused. It was also held that once the
confessional statements were found to have been made voluntarily,
the test identification parade was not significant. It was further held
that corroboration is not a rule of law but a rule of prudence.

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

The legal position on retracted confession was clarified in Abdul


Wahab Abdul Majid Shaikh and othrs. Vs State of Gujarat wherein
Apex Court has held that, Confession made before Police officer is
admissible under TADA act. Sibsequent retraction of confession by
confessor is not a valid ground to reject the confession.
Confession can be rejected only if at the time of making confession
accused was subjected to coercion, threat or any undue influence
or was offered any inducement to give the confession.

Similarly, in case of Mohommed Amin vs. CBI Honourable Apex


Court has held that, If confessor makes an allegation of coercion
threat or torture after more than one year of recording of
confession, the same is afterthought and is a product of legal
advice of their advocates and therefore is no ground to reject it.

Therefore, on the basis of the settled law and perusal of confession


and deposition of Mr.Chhatwal, it can be safely reiterated that the
confession of accused Abu Salem Ansari (A-139) is voluntary &
truthful & hence a substantive and substantial piece of evidence
corroborated by the depositions of independent witnesses and
other confessions of the co-accused and the recoveries of arms
and ammunitions which can be used against him and allhis co-
accused in this case to base convictions on.

Retracted Confessions:

It was held in Sanjay Dutt v State of Maharashtra through CBI


21.03.2013 by the Hon’ble Apex Court in our case that –

“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

considerable period of time. In fact, the judgment delivered by the


Constitution Bench on 09.09.1994 also noted down that the said
confession of the accused remained un-retracted. The retractions were
made many months after the recording of the confession.
40. In State of Maharashtra v. Bharat Chaganlal
Raghani MANU/SC/0360/2001 : (2001) 9 SCC 1, this Court while
setting aside the judgment of acquittal recorded by the Designated
TADA Court, observed as under:
58. .... There is no denial of the fact that the judicial confessions made
are usually retracted. Retracted confessions are good confessions if held
to have been made voluntarily and in accordance with the provisions of
law.... Corroboration of the confessional statement is not a rule of law but
a rule of prudence. Whether in a given case corroboration is sufficient
would depend upon the facts and circumstances of that case.
41. In Mohd. Amin (supra), this Court considered two issues, viz., (i)
whether the confession of an accused can be relied upon or used
against the co-accused without corroboration, and (ii) whether
confessional statements can be relied upon to convict the accused in
spite of their subsequent retraction. It was held that in so far as the
retraction of confessional statements is concerned, it is clear that the
allegations of torture, coercions and threats etc. by accused were not
raised at the first available opportunity, and that the retractions were
made after almost a year and were therefore only an afterthought and
a result of the ingenuity of their advocates. Accordingly, the retracted
confessions were relied upon. It was observed:
If the confessions of the Appellants are scrutinized in the light of the
above enumerated factors, it becomes clear that the allegations
regarding coercion, threat, torture, etc. after more than one year of
recording of confessions are an afterthought and products of ingenuity of
their advocates. The statements made by them under Section 313 of
Code of Criminal Procedure were also the result of an afterthought
because no tangible reason has been put forward by the defence as to
why Appellants A-4 to A-8 did not retract their confessions when they
were produced before the Magistrate at Ahmedabad and thereafter
despite the fact that they had access to legal assistance in more than
one way. Therefore, we hold that the trial court did not commit any error
by relying upon the confessions of the Appellants A-4 to A-8 and A-10
and we do not find any valid ground to discard the confessions of
Appellants A-4 to A-8 and A-10.
42. In Manjit Singh v. CBI MANU/SC/0067/2011 : (2011) 11 SCC
578, this Court, while considering the question whether retracted
confessions of the co-accused could be relied upon to convict the
94

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.”

3. The confessions of the co-accused, abettor or conspirators.

in case of this accused i.e. accused Abu Salem Abdul Qayoom


Ansari, there are six confessions of the co-accused which are
directly pointing out the role played by this accused in this case.
Those are,
1. Baba Musa Chauhan (A-41)
2. Sanjay Dutt (A-117)
3. Samir Hingora (A-53)
4. Manzoor Ahmed Sayyed Ahmed (A-89)
5. Yusuf Nullwala. (A-118)
6. Kersi Adjenia. (A-124)

The Honourable Apex Court of India while deciding the appeals of


these respective accused has held their confessions as admissible
in evidence and has convicted those accused on the basis of those
confessions and therefore those confessions which are held to
have been proved as admissible can be safely used against
accused Abu Salem as substantive and substantial pieces of
evidence.

Ibrahim Musa Chauhan @ Baba Chauhan (A-41)


95

Confession of A-41 was recorded by Mr. Prem Krishna Jain on


23.04.1993 & 25.04.1993 which is at Exh. 824, 824A
He has stated in his confession that -

1 He is r/o Chauhan Manzil, 2nd Gaothan Lane, Opp. Andheri Post


office, S.V. Road, Bombay-58. His is a joint family. He stays
alongwith his parents, 3 married elder brothers with their families
and his own family consisting of wife, son and 3 daughters. All of
them are occupied in 6 buildings at the said Gaothan. They all
jointly manage their business viz Munaj Builders and Developers,
Motor Driving School, STD Booth by name Metro communication,
Road constructions and Govt. Civil contractors, 5 cars, one lorry
and 2 auto rickshaws are available for training in Motor Driving
School.
2 His brother-in-law, Aziz Khan Bilakhia has a business of Rental
Cars & Tourist Taxis at Ras-ul-Khema and Deira Dubai. About 4
years back, he had gone to Dubai for 3 days with the intention of
doing Partnership business with Aziz. During that period, he along
with his brother-in-law had gone to Delhi Darbar Hotel for food.
There, Aziz introduced him to Anis (Abs) and Salem, Salem’s
brother Akhtar, had built a shopping centre by name, “Arsha” at
Andheri. Akhtar is an active Congress (I) member and he knows
him for the past 8-10 years. Hence, he became friendly with
Salem. Anis is younger brother of Dawood Ibrahim. Thereafter,
whenever Salem came to Bombay, they used to meet frequently.
3 On 15.01.1993 at 5:30 pm Salem telephoned him and asked him
to provide a garage equipped with closed shutter. Salem is a
Recruiting Agent and runs his business from Hasanabad Lane,
Santacruz where he also forcibly recovers money on behalf of Anis
Ibrahim Kaskar. Anis Ibrahim Kaskar who is the brother of
notorious smuggler and gangster Dawood Ibrahim Kaskar. After a
short time, Salem came to his office and enquired whether he had
received telephone from Anisbhai. When he replied in negative
Salem went to a STD booth and spoke to Anis. Thereafter, Salem
made him to talk to Anis. When he told Anis that he cannot arrange
for a garage, then Anis asked Salem to wait at his (Baba’s) office.
96

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

Sanjay Dutt moved 4/5 vehicles which were at the garage on


another side thereby clearing the passage leading to garage.
Thereafter, the van which he had taken in the reverse and parked
in the garage. Salem opened the cavity which was under the
backside seat with the help of a spanner and tools and took
out 9 AK-56 Rifles one by one. Thereafter, he opened the inner
lining of the front side door of the car and took out 80 hand
grenades (without pins). He also took out 1500/2000 bullets
from the rear side door which were packed in brown coloured
paper packets containing 25 to 30 bullets and were wrapped
with rubber bands. Grenades were also wrapped in brown
colour paper. Inside the lining of the rear door there were 56
magazines. On seeing them Sanjay Dutt expressed that there
would be problem if they were to blow up/explode. Upon
which Salem told him that the hand-grenades did not have
pins attached to them. Therefore, nothing would happen. He
demonstrated him by throwing 2/3 hand-grenades on the
ground. Salem made a list of the all articles. Salem told
Sanjay Dutt to keep 3 Rifles,9 magazines, 450 bullets and 20
hand-grenades in the Fiat car of Sanjay Dutt. He kept bullets,
magazines in a sport’s bag and that bag was to be kept in the
dicky of Sanjay Dutt’s car. Sanjay Dutt himself locked the dicky
and kept keys in his pocket. 20 grenades were packed in another
sport’s bag like bag and the said bag by Samir in his car. Samir
called for another long sport’s bag in which A-41 kept 3 rifles,
16 magazines, 25 hand-grenades and 750 bullets and then he
went outside with Samir. Salem was packing the remaining
arms and ammunition.
7 While leaving for Magnum office, he had instructed his cousin i.e.
uncle’s son, to park a car near Sanjay Dutt’s (A 117) bungalow and
his cousin was also instructed to leave the key in the car itself.
Accordingly, he had parked the car and had left. Samir (A-53)
dropped him near the car. He, in his car, carried the bag that was
with himto his residence. He hid the bag under his bed. Next day
he loaded all the bullets in the magazines of the Rifles.
8 After 2/3 days, he telephoned Salem at his residence as his office
telephone number 6483001 given to him was reportedly wrong. On
calling the telephone No. 6274810 at Salem’s house, Salem’s wife
received the phone and told him that Salem was out of India. He
98

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

rifle, 25 hand-grenades and remaining bullets and 10


magazines were remaining with him upon which he told
Salem him 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.
12 Around this time, he read in the newspaper that Salim Kurla
(dead) tried to extort money from a Gujarati person at
gunpoint and was arrested by the Crime Branch. Salem
himself came to see him and expressed that he was very
much frightened as Salim Kurla may reveal his name (i.e.
name of A-41) to the Police. Salem told him not to tell his
name to anybody. During this period, he was in constant
touch with Anisbhai. He was also frightened and therefore he
kept bag containing all the goods he had, with Iqbal Tunda as
Iqbal was staying in the house of a person who was tenant of his
uncle Haji Ismail. Haji Ismail Tabelewala had a big building at
Jogeshwari (West) and was a good old friend of his father. He was
introduced to Iqbal when he would go to Mosque on main road in
Jogeshwari for Namaz. Without disclosing the name of Iqbal, he
had told Salem that he has shifted the goods. About the remaining
goods, upon enquiry, Salem told that he has kept with a man
named Ayub of Oshiwara. At that time Salem was having 30
loaded magazines which were wrapped in plastic / polythene
bag and was kept in a cloth bag. Salem left the bag with him
and told him that he had telephoned Ayub requesting him to
keep all the goods with him. On the same night at 9:00 / 9:30
pm. Ayub came with one bag in which there was one AK-56
Rifle. He kept those magazines and that bag at one place.
13 After 2/3 days at about 4:00 pm, Salem came to him in a blue
coloured Maruti 1000 i.e. about 3 / 4 days prior to Ramzan and
directed him to leave the vehicle at Sky-way Hotel near Ram
and Shyam talkies at Jogeshwari where Ayub would meet him.
He should handover the vehicle to Ayub and return by
autorickshaw. Salem also told him to ask Ayub that all goods
except “Apple” may be kept in the car and leave the car at the
o/o Salem at Arsha Shopping Centre. Accordingly, he took the
car and reached Ram and Shyam Talkies. Ayub met him there.
He conveyed Salem’s message to Ayub. He took an
autorickshaw and passed Sanagam Motor training school and
100

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

“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
preceded by any adjective like 'knowingly', yet it is common ground
that in the context the word 'possession' must mean possession with
the requisite mental element, that is, conscious possession and not
mere custody without the awareness of the nature of such possession.
There is a mental element in the concept of possession. Accordingly,
the ingredient of 'possession' in Section 5 of the TADA Act means
conscious possession. This is how the ingredient of possession in
similar context of a statutory offence importing strict liability on account
of mere possession of an unauthorised substance has been
understood.
xxxxxx
25. The significance of unauthorised possession of any such arms and
ammunition etc. in a notified area is that a statutory presumption
arises that the weapon was meant to be used for a terrorist or
disruptive act. This is so, because of the proneness of the area to
terrorist and disruptive activities, the lethal and hazardous nature of
the weapon and its unauthorised possession with this awareness,
within a notified area. This statutory presumption is the essence of the
third ingredient of the offence created by Section 5 of the TADA Act.
The question now is about the nature of this statutory presumption.
xxxxxxx
27. There is no controversy about the facts necessary to constitute the
first two ingredients. For proving the non-existence of facts constituting
the third ingredient of the offence, the accused would be entitled to
rebut the above statutory presumption and prove that his unauthorised
possession of any such arms and ammunition etc. was wholly
103

unrelated to any terrorist or disruptive activity and the same was


neither used nor available in that area for any such use and its
availability in a "notified area" was innocuous. Whatever be the extent
of burden on the accused to prove the non-existence of the third
ingredient, as a matter of law he has such a right which flows from the
basic right of the accused in every Prosecution to prove the non-
existence of a fact essential to constitute an ingredient of the offence
for which he is being tried. If the accused succeeds in proving non-
existence of the facts necessary to constitute the third ingredient alone
after his unauthorised possession of any such arms and ammunition
etc. in a notified area is proved by the Prosecution, then he cannot be
convicted Under Section 5 of the TADA Act and would be dealt with
and punished under the general law. It is obviously to meet situations
of this kind that Section 12 was incorporated in the TADA Act.

20. Therefore, the only requirements under the statutory provisions


are, that (1) a person must be in possession of some contraband
material; (2) the person must have knowledge of his possession i.e.
conscious possession; (3) it should be in the notified area. Once
possession is established, the burden is on the accused to show that
he was not in conscious possession.
21. After considering the entire evidence on record, the learned
Designated Court came to the conclusion that the Appellant (A-41) was
aware that the arms and ammunition which were handled by him were
to be used during riots against Hindus. The father of the Appellant (A-
41), had collected a bag of contraband kept with Iqbal Tunda through
Haji Ismail, and handed over the same to the police. The Designated
Court held that the confessions of the co-accused established the role
played by the Appellant (A-41) in supplying weapons to A-117. The
confession of A-117 does not reveal the name of the Appellant (A-41),
but the same is obvious as A-117 did not know the Appellant prior to
the said meeting. Thus, it is clear that the fourth person referred to in
the confession of A-117 is none other than the Appellant (A-41). The
Court held that a consideration of the entire evidence leads to the
inescapable conclusion that the Appellant (A-41) was in unauthorised
possession of AK-56 rifles, magazines, ammunition and hand
grenades, and that he had distributed a part of the material to A-117,
kept the hand grenades with himself, and had handed over an AK-56
rifle to Salim Kurla (dead). All the said acts were committed by him at
the behest of Salim (AA) and Anees Ibrahim, and thus he has
committed an offence punishable Under Sections 3(3) and 5 TADA.
Being in the unauthorised possession of weapons in a notified area,
104

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.”

Prosecution is relying upon the confession of accused Ibrahim


Baba Musa Chauhan (A-41) as a substantive piece of evidence
which is substantial and paramount to prove the conspiracy & roles
played by accused Abu Salem Abdul Qayoom Ansari (A-139),
accused Abdul Qayuum Karim Shaikh, accused Riyaz Siddiqui,
Accused Mustafa Ahmed Umer Dossa (A-138) and all other accused
before the court.

Confession of A-41 was recorded by Mr. Prem Krishna Jain on


23.04.1993 & 25.04.1993 which is at Exh. 824, 824A

He was examined as PW- 189, he has deposed about recording of the


confession of accused Ibrahim Musa Chauhan @ Baba Chauhan (A-
41) he has given the details which clearly show that every precaution
reasonably expected to be taken by a recording officer as contemplated
u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been meticulously taken
further, the guidelines laid down by the Hon’ble Apex Court in case of
Kartar Singh v State of Punjab reported in 1994 SCC (3) 569 have also
been complied with.

He was extensively cross-examined by Defence, he sturdily withstood


the said gruelling cross-examination.
The Honourable Apex 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 his own appeal i.e. Criminal
Appeal No. 555 of 2012, wherein he was acquitted under the umbrella
charge of conspiracy i.e. charge No. 1, However, he was convicted for
the second charge i.e. smaller conspiracy under Section 3(3) TADA
and was awarded a sentence of 8 years RI along with a fine of
Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a
period of three years; under Section 5 TADA, he was sentenced to
105

suffer RI for 10 years along with a fine of Rs.50,000/-, and in default of


payment of fine, to suffer further RI for a period of one year; under
Section 6 TADA, he was sentenced to suffer RI for 10 years and a fine
of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for
a period of 3 years; under Section 4(b) of the Act 1908, he was
sentenced to suffer RI for four years along with a fine of Rs.25,000/- and
in default of payment of fine, to suffer further RI for a period of 6 months,
under Section 9-B (1)(b) of the Act 1884, he was sentenced to suffer RI
for one year along with a fine of Rs. 2,000/- and in default of payment of
fine, to suffer further RI for two months. All the sentences were directed
to run concurrently; under Sections 3 and 7 read with Section 25 (1-
A)(1-B)(a) of the Arms Act, the appellant was convicted.

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)

Despite the liberty granted by orders dated 24.08.2009 & 22.02.2011,


the Defence chose not to and/or did not cross-examine PW-189 Mr.
P.K. Jain; hence his evidence remains without a single dent & therefore
it can be safely reiterated that the confession of A-41 is voluntary &
truthful & hence remains a substantive and substantial piece of evidence
which can be used against all the co-accused in this case to base
convictions on. Any further questions that might be raised with the
intention denting the case of the Prosecution in the future by the
Defence in their arguments have already been succinctly addressed and
dealt with in the judgement of this Hon’ble Court in its judgement
delivered in 2006,2007 and in judgement of the Hon’ble Apex Court
delivered on 21.03.2013 and/or have been dealt with by various
judgements of the Hon’ble Apex Court which now stand as the settled
law on the same.

This Honourable Court while deciding the earlier part of trial has
extensively discussed all the issues which were raised by the defence.
106

To point out some of the important findings of the Apex


Court,Prosecution during oral arguments, has already handed over the
marked copies of the decisions in appeals of this co-accused to this
Honourable Court.

Confession of Sanjay Sunil Dutt (A-117)

Confession of A- 117 was recorded by Mr. K.L. Bishnoi on 26.04.93


which is at Exh. 868, 868A

In his confession he has confessed that –

1 He is R/o 58, Pali Hill, Bandra, Bombay-50. He is an actor by


profession. He has 3 valid licences for Firearms and possesses 3
Fire arms

1. .270 Rifle of ‘Bruno” Make

2. .375 Magnum Double Barrel Rifle

3. 12 Bore Gun of Double Barrel.

2 He had purchased these weapons for his fondness for hunting. He


goes for hunting with one Yusuf Nullwala(A-118) as he is an
experienced hunter. Through Yusuf Nullwala he came in contact
with Kersi Bapuji Adjania(A-124).

3 During the shooting of film Yalgar, producer Feroz Khan taken


the film unit to Dubai for shooting. During shooting they met
Dawood Ibrahim(Abs), Anees Ibrahim(Abs), Iqbal Mirchi,
Sharad Shetty, Chotta Rajan and many others. Anees Ibrahim
used to come very frequently and thus he had good
acquaintance with him.

4 He also knows Hanif Kadawala(Dead) and Samir Hingora(A-


53) of Magnum Video as he had signed for acting in one of their
films “Sanam”. Both used to frequently visit his house for dates.

5 His father was an active political worker of Congress Party and


was an MP of Bandra constituency. He was also taking lot of
interest in social work. In the communal riots his father had taken
107

interest in organising relief work for the riot victims. As a result


many people used to come to his house for arranging one thing or
the other.

6 They also used to receive threatening telephone calls indicating


killing or assaulting the members of his family and molesting and
raping his sisters. As a result they all were under great mental
stress. In Jogeshwari and Behrampada his father was attacked
labelling him as pro-muslim. He contacted local Police. But they
did not pay any heed.

7 He casually mentioned about the said happening to number of


persons including Hanif Kadawala(Dead) and Samir Hingora (A-
53). Hanif volunteered and told him that if he so desires, he would
make immediate arrangements to provide an automatic firearm to
him for his protection. Moreover, they started insisting him to
acquire a firearm from them. He had fallen prey to their request
and expressed his desire to possess a firearm.

8 In the middle of January, 1993 at 9:00/9:30 pm Hanif (Dead)


and Samir(A-53)came to their house along with one Salem(A-
139). Sanjay Dutt had met Salem earlier on one or two
occasions also. They told that they would be coming next day
morning with weapons to be delivered to him. Thereafter, they
went away.

9 Next day Samir(A-53), Hanif(Dead) and Salem alongwith one


more person came to his house in a Maruti van which they
parked in the Tin shed. One person was sitting inside the van.
After about 15-20 minutes he took out 3 AK-56 Rifles. Some
cloth was brought from his house. They wrapped the Rifles
and gave to him. When he opened and saw 3 Rifles,
magazines and some 250 rounds. The rounds were kept in
another handbag fetched by him.

10 On seeing the Rifles, he was scared and told them that he


wanted only one weapon. Hanif (Dead) and Salem told him to
keep all the three for the time being and they would take the
other two back after some time. They also showed brown
108

coloured hand grenades. For which he refused and asked them to


leave his house immediately.

11 He kept the 3 Rifles, Magazines, ammunition etc. in the dicky


of his Fiat car No. MMU 4372 and locked it. On the same night
he kept them in a hand bag and shifted to his private hall which is
on the 2nd floor of his bungalow.

12 After 2 days he contacted Hanif Kadawala(Dead) and told him to


take away the weapons. Hanif told him that he would get it
collected through somebody. After two days Samir(A-53), Hanif
(Dead)and Salem came to his house in the evening in a car.
He returned two AK-56 Rifles and some ammunition. He kept
one AK-56 Rifle and some ammunition. He also told them that
after the riots would subside they should take away the 3rd
AK-56 Rifle and ammunition to which they agreed.

13 After a week or so he contacted Hanif Kadawala(Dead) and


requested him to take away the remaining AK- 56 Rifle and
ammunition as the riots were under control and he had mental
pressure and tension. However, Hanif Kadawala did not show any
inclination to take away the same. Moreover, he directed his
Secretary not to give any dates to Hanif and Samir(A-53). When
they approached him, he told them to collect the Rifle and
ammunition. Both replied that it was none of their business to take
away the rifle in Sanjay’s possession.

14 In Sept. 1992 one Qayoom, member of Dawood Ibrahim gang,


with whom was acquainted from Dubai met him at R. K.
Studio.Qayoom was with a stranger , both of them showed
him a 9 mm pistol with ammunition and offered it to him. He
liked it immensely and purchased for Rs. 40,000/- along with 8
rounds. The stranger was about 35-38 years old, Muslim, dark
complexion, 5’-8” tall, fat, moustaches, medium curly hair, wearing
shirt and pant.

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

16 During shooting Hanif (Dead) and Samir(A-53) used to tell about


one Tiger Memon(Abs) who was good friend of theirs. The Police
and Customs officers were afraid of him who was dynamic and
daring fellow. They also occasionally used to talk about their
friendship with Dawood Ibrahim and his brother Anis.

17 He went to Mauritius for film ‘Aatish’. While there, he learnt


that Hanif (Dead)and Samir(A-53) were caught by Bombay
Police for their roles in Mumbai Blast. On hearing this, he got
frightened that these two people may disclose his name and
involve him in Bomb Blast case.

18 He contacted his friend, Yusuf Nullwala(A-118), on phone and


told him to destroy the AK-56 Rifle which is kept in his house.
He also explained him its location. By then, the news about
his possession of AK-56 Rifle appeared in the press. On
hearing this, his father enquired the truth in the Media report.
But he denied the same.

19 He returned to Bombay and the Police picked him up from the


airport and he confessed to them whatever had happened.

CONFESSION OF THIS ACCUSED IS CORROBORRATED BY THE


FOLLOWING EVIDENCE-

1) Evidence Of Confession :

A. No. Ex. & Dt. Of confession Involves which need in this


episode
of A- 41 Ex. 824 & 824-A dt. 23 & A-117
25/4/93
of A-53 Ex. 878 & 878-a dt. 18 & A-117
20/5/93
of A-89 Ex. 882 & 882-A dt. 24 & A-117
26/5/93
of A-118 Ex. 869 & 869-A dt. 27 & A-117, A-124
29/4/93
of A-124 Ex. 870 & 870-A dt. 27 & A-117, 118, 125
30/4/93
110

2) Oral Evidence Pertaining To The Aforesaid 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

DCP recodg. the conf. of Chief Para : 167 to 196


A-117 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 197 to 219


A-118 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 220 to 241


A-124 Cross Para : 760 to 775

2) Other Evidence :

PW 211 On 19.4.93 recording memorandum & PW 211 Against


Panch discovery panchanama Ex.1068 & Entire All
Sawant 1068-A of statement of A-117& PW 475
PW 475 leading to house of A-118. Entire
API RR Arresting of A-118 brought by Dongri PW 680
Joshi Police at Crime Branch by PW 680.
111

PW 680 PI On 19.4.93 recording memorandum & Ch / Cr


Walishetty discovery panchanama Ex.1068-B & 38 to 69
1068-C of statement of A-118&
leading to house of A-124 and
producing rod Art.383-A and spring
Art. 383-B and taking charge of same
under panchanama Ex. 1068-C/
leading them to bungalow of A-125.
Arresting of A-125 / recording
panchanama Ex. 1068-D of statement
made by A-125/ leading them to
house of A-120.
A-120 making statement and Police
taking charge of pistol Art. 384-D colly.
and bullets Art. 385-D under
panchanama Ex.1068-E.
Recording Complaint Ex.1582 and
proforma FIR
Ex. 1582-A of PW 475 by PW 680.
PW 680 sending Articles seized from
A-120 to CA
(forwarding letter Ex.2558/CA report
Ex.2558-A).
P.W. 218 On guard duty at bungalow of Sunil Entire Against
PH Shinde Dutt on 16/1/93 three persons came in evidence A-117
Maruti van / had A-117 / identified A-
41 & 53 in Identification held at
Sitaram Bldg.
P.W. 469 SEM – TI Parade conduced on Chf Against
Thakur 27.5.93 at Sitaram Bodg. / for PW 218 Para 254 A-41 &
/ identified A-41 & 53 / 1521. to 269 53
Mem. Cross
Ex. 1521 Para
480 to
516,
PW 219 Senior Inspector attached to Khar Entire Corrobor
MV Police Stn. regarding posting of two ation to
Shirodkar policemen i.e. PN 14155 & PC 3497 PW 218
at bungalow of Sunil Dutt from 11.1.93
to 18.1.93 & entries Ex. 973 (11 to 18)
in respect of same.
PW 220 Personal dress man of A-117 Entire Hostile
112

Ahmad Ali regarding visiting and bungalow in


Shaikh connection with his work.
PW 265 Recording memorandum panchanama PW 265 A-124
Panch GB Ex. 1100 on 1.5.93 of statement made Entire
Sawant by A-124 / leading them to Karakhana PW 680
PW 680 PI at Kharwagalli at Kamathipura / taking Ch/ Cr
Walishetty charge of masons pan Art.387. red 83 to
colour gas cylinder Art. 388 & oxygen 91 / 103 A-118
cylinder Art. 389, tubes attached with to 125
gas cylinder Art. 390 & 391 and gas
cutter Art. 392 under panchanama Ex.
1100-A.
PW 680 sending the above articles to
CA under letter Ex.2558 & receiving
CA report Ex. 2558-A.
Recording memorandum panchanama
Ex. 1101 of statement made by A-
118 / leading them to Marne Drive /
taking charge of bullets Art. 386 colly.
under panchanama Ex. 1101-A.
PW 680 sending the above articles to
CA under letter 259 & receiving CA
report Ex. 2559-A.
PW 472 Attached with Computer Cell of MTNL, Entire
Alagappan Malabar Hill. Regarding furnishing
PW 529 print out Ex. 2532 colly. of STD & ISD
PSI Bane details for telephone No. 6462786
connected by Bandra Telephone
Exchange, to PW 529.
PW 680 Regarding A-117, A-118 & A-124 Entire
Walishetty expressing their desire to give
confession on 26.4.93
PW 493 According sanction Ex. 1689 for Entire
Yadev Prosecution of A-41, A-117, 118, 124, Evidence
125, 120, 40 & 53 for the offences
Sanction under Arms Act on reports of P.W.
Ex. 1689 680.
PW 499 According sanction Ex. 1727 for the
Sahani offences under Explosive Substances
Sanction Act.
Ex. 1727
113

Prosecution is relying upon the confession of accused Sanjay Sunil


Dutt (A-117) as a substantive piece of evidence which is substantial
and paramount to prove the conspiracy & roles played by accused
Abu Salem Abdul Qayoom Ansari (A-139), accused Abdul Qayuum
Karim Shaikh, accused Riyaz Siddiqui, Accused Mustafa Ahmed
Umer Dossa (A-138) and all other Co-accused who are before the
court.

Confession of A- 117 was recorded by Mr.K.L. Bishnoi on 26.04.93


which is at Exh. 868, 868A

He was examined as PW- 193, he has deposed about recording of the


confession of accused Sanjay Sunil Dutt (A-117), he has given the
details which clearly show that every precaution reasonably expected to
be taken by a recording officer as contemplated u/s 15 r/w rule 15 of
TADA (P) Act, 1987 has been meticulously taken further, the guidelines
laid down by the Hon’ble Apex Court in case of Kartar Singh v State of
Punjab reported in 1994 SCC (3) 569 have also been complied with.

He was extensively cross-examined by Defence, he sturdily withstood


the said gruelling cross-examination.

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

substantial the Apex Court has convicted the following co-accused


co-accused such as –

1) Ibrahim Baba Musa Chauhan (A-41)


2) Samir Hingora (A-53)
3) Kersi Adjenia (A-124)
4) Yusuf Nullwala (A-118)

Availing the liberty granted by orders dated 24.08.2009 &


22.02.2011, PW- 193 Mr. K.L Bishnoi was cross examined by
Defence again; during this part of trial PW-193 was again tenaciously
withstood the same gruelling cross examination, & Defence could not
reveal anything contrary to earlier evidence, the said evidence yet again
remains without a single dent & thereforehis evidence remains without a
single dent & therefore it can be safely reiterated that the confession of
A-117 is voluntary & truthful & hence remains a substantive and
substantial piece of evidence which can be used against all the co-
accused in this case to base convictions on. Any further questions that
might be raised with the intention denting the case of the Prosecution in
the future by the Defence in their arguments have already been
succinctly addressed and dealt with in the judgement of this Hon’ble
Court in its judgement delivered in 2006,2007 and in judgement of the
Hon’ble Apex Court delivered on 21.03.2013 and/or have been dealt with
by various judgements of the Hon’ble Apex Court which now stand as
the settled law on the same, the Prosecution craves leave to address
any such abovementioned issues that shall be brought to the fore by the
Defence, in its reply by referring to the same.

Manzoor Ahmad Sayyad Ahmad (A-89)

Confession of Manzoor Ahmad Sayyad Ahmad (A-89) was recorded


by Mr. K.L. Bishnoi on 26.05.1993 which is at Exh. 882, 882A

He has stated in his confession that-


115

1 He is R/o Room No. 4, Masjid Appts. Ground Floor, New Hall


Road, Kurla (W), Mumbai-70. Original R/o Abdiha Ibrahimpur, Post
Binapara, Tal and District Azamgad. He is recruiting Agent doing in
partnership with Ahmad Hussain from Almotion Travels, Khatri
Jamat Bldg, Sarang Street, Pydhonie, Mumbai.
2 He knows Abu Salem Ansari (A-139) S/o Abdul Qayoom Ansari
r/o Village Saraimeer near his village in Azamgad and for the past
two years they are good friends. Abu Salem used to sit in his
brother’s shop at Arsha Market Centre, Andheri and he frequently
used to meet him.
3 He has a blue coloured Maruti 1000 bearing Regn. No. MP-23-B-
9264. Around 22-23 January 1993 in the evening Salem (A-139)
called him over phone and told him to come to his office at Lukfi
Enterprises, Hasanabad Lane, Santacruz.
4 On reaching there, Salem (A-139) took him to the office of Baba
Chauhan(A-41) situated at Munaj Builders & Developers, S. V.
Road, opp. Andheri Post Office, Andheri and introduced him to
Baba Chuahan. He handed over the keys of his Maruti 1000 to
Baba Chauhan. Baba Chauhan went out and returned after
half an hour with the car and handed over the keys to Salem.
Baba Chauhan further told that the bag with weapons was
kept in the vehicle by him.
5 When he and Salem sat in the car, he saw a bag of black colour
kept on the rear seat. From there they went to 22 Mount Mary,
Vidhyanchal Appts. They took the bag and went to a flat on the first
floor. Salem handed over the bag to a woman and told that the
bag contained very expensive weapons which were sent by
Anis Ibrahim which were to be used during ‘GAME’ to be done
Mumbai. He further told her that he would come after few days
and take them back. The lady was middle aged who opened the
bag slightly and again closed it and took it in the inside room. They
both came out and then he dropped Salem (A-139) at his office
and he himself returned to his residence.
6 Eight days thereafter, Salem (A-139) again called him at his office
in the evening. Accordingly, he went and met Salem. Salem and
he went to the office of Magnum Videos. Salem went inside the
Magnum video office and came out talking to a man. On reaching
the car the said person told Salem to proceed to Sanjay
116

Dutt’s(A-117) residence and he would follow them. After


boarding the car, Salem told him that the person that he was
talking to was Hanif (Dead) and that he was the owner of
Magnum Videos. Hanif was following them in his white Maruti
1000 vehicle.
7 On reaching Sanjay Dutt’s(A-117) residence at Pali Hill. Sanjay
Dutt came and met them near their car, Salem(A-139) told him
that out of the 3 Rifles given to him by Anis Bhai(Abs), 2 Rifles
are to be given to somebody else on the instructions of Anis
bhai. Similarly, if Sanjay Dutt was no longer in need of hand-
grenades, to handed over to him, as those are also to be
handed over to somebody.
8 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.
9 Thereafter, he and Abu Salem(A-139) took the vehicle to 22,
Mount Mary Road, and went to first floor flat of Zaibunisa
Anwar Kazi (A-119) at Vindhyachal Apartment. They met and
gave the bag and carton to a middle aged woman whom he
was calling mummy. The said woman opened the door
slightly, saw and closed again. She kept both the packages
inside the room. Thereafter, Salem told that woman
addressing her as Mummythat the weapons are costly and
Anis bhai(Abs) has sent them from Dubai and they are to be
used for GAME in bombay. Therefore, asked her to keep them
safely and if need be, he would come and collect them. He
dropped Salem near Palmgrove Hotel at Juhu and went back to
his residence.
10 Thereafter, Salem called him again on one or two occasions. But
out of fear he did not go. He was arrested on 18/19.04.1993 by
worli Police.
Confession of accused Manzoor Ahmad Sayyad Ahmad (A-89) is
fully corroborated by,
117

Follwowing evidence against him, taken into account in part 38 of


the final judgement of this Hon’ble Court delivered in 2006/2007 –

Evidence of P.W. 61 Panch for Chief – entire


seizure of car Shri seizureCross – entire
of A – 89 & Dhakutkar
the other
materials P.W. 509 SI Officer for Chief Para : 1 to
seized from Shri Ghate seizure 12
the said car. Cross Para :
Against A - 89 13 to 23

Evid. P.W. 615 Regard. Page 615/86


Pertaining to API Shinde Arrest
arrest against effected by
A – 89 PI
Pharande.
Sanction Under Arms
Ex. 1692 Act
P.W. 493 Sanctioning
SPS Yadav authority for
the said
sanction.
Oral evidence P.W. 193 – Who Chief Para No.
of DCP Shri hadrecorded 476 to 494
K.L. confession
Against A – Bishnoi of A – 89
89 & A – 119
as per the
serial No. 1

Cross Para No.


602, 605, 606,
611, 613, 654,
655, 656 & 668,
754 to 759
Record. Chief Para : 167
Confess. of to 196
A – 117

Cross Para : 706


118

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

Confessions of the other co-accused such as A-41, A-53, A-117, A-


118, A-124, A-40 and A-139.

Prosecution is relying upon the confession of accused Manzoor


Ahmad Sayyed Ahmad (A-89) as a substantive piece of evidence
which is substantial and paramount to prove the conspiracy & roles
played by accused Abu Salem Abdul Qayoom Ansari (A-139),
accused Abdul Qayuum Karim Shaikh, accused Riyaz Siddiqui,
Accused Mustafa Ahmed Umer Dossa (A-138) and all other accused
before the court.

Confession of Manzoor Ahmad Sayyad Ahmad (A-89) was


recorded by Mr. K.L. Bishnoi on 26.05.1993 which is at Exh. 882,
882A

Mr. K.L.Bishnoi was examined by the Prosecution as PW-193, he has


deposed about recording of the confession of accused Manzoor Ahmad
Sayyed Ahmad (89), he has given the details which clearly show that
every precaution reasonably expected to be taken by a recording officer
as contemplated u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been
meticulously taken further, the guidelines laid down by the Hon’ble Apex
Court in case of Kartar Singh v State of Punjab reported in 1994 SCC (3)
569 have also been complied with.
He was extensively cross-examined by Defence, he sturdily withstood
the said gruelling cross-examination.
119

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 –

1) Sanjay Dutt (A-117)


2) Ibrahim Baba Musa Chauhan (A-41)
3) Zaibunissa Anwar Kazi (A-119)

Availing the liberty granted by orders dated 24.08.2009 & 22.02.2011,


PW- 193 Mr. K.L Bishnoi was cross examined by Defence again; during
this part of trial PW-193 was again tenaciously withstood the same
gruelling cross examination, & Defence could not reveal anything
contrary to earlier evidence, the said evidence yet again remains without
a single dent & thereforehis evidence remains without a single dent &
therefore it can be safely reiterated that the confession of A-89 is
voluntary & truthful & hence remains a substantive and substantial piece
of evidence which can be used against all the co-accused in this case to
base convictions on. Any further questions that might be raised with the
intention denting the case of the Prosecution in the future by the
Defence in their arguments have already been succinctly addressed and
dealt with in the judgement of this Hon’ble Court in its judgement
delivered in 2006,2007 and in judgement of the Hon’ble Apex Court
delivered on 21.03.2013 and/or have been dealt with by various
judgements of the Hon’ble Apex Court which now stand as the settled
law on the same.

To point out some of the important findings of the Apex


Court,Prosecution during oral arguments, has already handed over the
marked copies of the decisions in appeals of these co-accused to this
Honourable Court.
120

Samir Ahmad Hingora (A-53)


Confession of A- 53 was recorded by Mr. K.L. Bishnoi on 18.05.1993
& 20.05.1993 which is at Exh. 878, 878-A

In his confession he has confessed that –

1 He is r/o Delite Appt., 2 Carter Road, Bandra (W) Mumbai. He


opened a Video Library in 1980 at shop No. 11, 2nd floor, Manish
Market, Bombay. He had about 800 members with his Library.
2 Mustafa Dosa @ Mustafa Majnoo (A-138) was a smuggler in
gold and other contraband articles. He was also having 2-3 shops
on the ground floor of Manish Market. Mustafa Dosa @ Mustafa
Majnoo (A-138) was also a member of his Library.
3 One Mushtaq Abdul Razak Memon @ Tiger Memon(Abs) was
working at the shop of Mustafa Dosa @ Mustafa Majnoo (A-138).
He was frequently visiting his shop for taking video cassette on
behalf of Mustafa Dosa @ Mustafa Majnoo (A-138) As a result
he and Tiger developed friendship. After sometime he also started
shop at Nepeansea Road and Kemps Corner under the name and
Style, “Video Vision Corpn”.
4 In 1984, in partnership with Hanif Kadawala(Dead), he started
Magnum videos. They used to get blank video cassettes from
Delhi and sell them under the brand name of Magnum. In 1985
they started purchasing copyrights of Hindi feature films. Later on
they started purchasing national and international video copyrights
for Indian films. In 1987, they entered in film production under the
name and style, Magnum Film International. The partnership of his
and Hanif Kadawala was fifty-fifty basis and names of their
relatives were also included.
5 While at Video Cassette Library, Manish Market, Anees(Abs) also
became a member of their Library. Anees was brother of Dawood
Ibrahim, who was a known goon of Dongri and Pydhonie area.
121

6 Ibrahim Abdul Razak Memon @ Tiger Memon(Abs) while working


as sales boy with Mustafa Dosa @ Mustafa Majnoo (A-138) he
was residing in a small house opposite Mandvi Telephone
Exchange at Mohd. Ali Road. Later he started his own smuggling
activities and earned money in a short while. He also knows
Tiger’s brother Ayub(Abs) who lives in Dubai. He had expressed
his desire to buy Satellite Overseas Video Rights from Magnum in
December 1992 or January 1993. But there was no written
Agreement effected between them.
7 After blast in Bombay, he received Bank Draft for Rs. 21.90 lakhs
from Ayub Memon(Abs) sent through some one. On the same
morning i.e. on 13th Ayub had spoken to him over telephone from
Dubai. This amount was towards advance payment for the films
which yet to be given to Memons as the films were yet to be
released.
8 Samir had visited Dubai number of times in connection with his
films work and had met Anees Ibrahim(Abs), brother of Dawood
Ibrahim. He had sold rights of many video films to m/s Kings Video
at Dubai for the Gulf countries. Kings Videos is of Anees Ibrahim.
He has also interest in Al-Mansoor Video Company which he
controlled through Chotta Rajan.
9 On 15th January, 1993, Accused Baba Chauhan(A-41) and
Salem(A-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 Anees telephoned him from Dubai saying
that Baba Chauhan and Saalem are his men. They will bring a
vehicle loaded with weapons. Anees directed him to make
arrangements for offloading 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.
10 Since his partner Hanif Kadawala(Dead) was not present in the
office, he took them to Hanif’s house near Guru Nanak Park in
Bandra for consultation. Hanif Kadawala spoke to Anees(Abs) in
Dubai over telephone from ISD centre near his house and also told
him that he will not undertake such work. He had no talk with Anis,
however, on the request of Saalem, Hingora agreed to take him to
Sanjay Dutt’s(A-117) House.
122

11 Immediately, they both went to Sanjay Dutt’s house. They found


Sanjay Dutt(A-117) talking to Anees(Abs) on telephone and was
enquiring as to when he was sending the weapons. Then Sanjay
Dutt received Saalem warmly and hugged Saalem. He also
asked where the weapons were 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 their house, upon which Sanjay Dutt
persuaded Samir to accompany Saalem next day morning.
12 Next day morning he went to his office at about 6:30 am. There he
met Saalem and Baba Chauhan (A-41). Baba Chauhan was
having a blue coloured Maruti Van; in which both of them sat and
Samir in his own car led them to Sanjay Dutt’s house. This time
also Sanjay Dutt(A-117) hugged Saalem warmly. Sanjay Dutt
asked his driver to remove all the vehicles from the garage.
Accordingly, Mohd. his driver removed all the vehicles. Thereafter,
Baba Chauhan parked his Maruti van. He asked for spanners and
screw drivers. Sanjay Dutt asked Mohd. to bring it and gave them
to Baba Chauhan.
13 Both Baba Chuhan (A-41)and Saalem went into the Maruti van
and started opening cavities. After sometime Saalem asked for a
bag and piece of cloth. Upon this Sanjay Dutt(A-117) brought a
black coloured airbag and 2 bed sheets. Saalem enquired from
Sanjay Dutt as to how many he wants? Sanjay Dutt in return asked
how many they have?
14 Saalem told Sanjay Dutt(A-117) that he has 9 AK – 56 Rifles,
80 hand-grenades and ammunition. He also saw 9 AK-56
Rifles, handgrenades and some magazines and packets of
ammunition on the floor of the Maruti van. Saalem wrapped 3
AK-56 Rifles and also some magazines in a bedsheet as per
request of Sanjay Dutt. Sanjay Dutt also asked him to give 20-25
handgrenades. Accordingly, Saalem put some handgrenades in
the black coloured bag alongwith ammunition. Saalem asked
Sanjay Dutt to keep the rifles then as per the instructions of Sanjay
Dutt, the rifles etc. were kept in the Fiat car. Thereafter, Sanjay
Dutt told his driver to lock the Fiat car and give the keys. His driver
complied with Sanjay Dutt’s orders. Then Saalem asked Sanjay to
take the bag. Sanjay Dutt asked Saalem to keep the bag in
123

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.

Confession of accused Samir Hingora is fully corroborated by,

A. Oral Evidence Pertaining To The Aforesaid Confession :-

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

DCP recodg. the conf. of A- Chief Para : 242 to 263


96 Cross Para : 593 to 599

DCP recodg. the conf. of A- Chief Para : 167 to 196


117 Cross Para : 706 to 753

B. Other Evidence Pertaining To Supply Of Arms :

P.W. 218 On guard duty at bungalow of Sunil Entire evidence


PH Shinde Dutt / on 16/1/93 three persons
came in Maruti Van / had a talk with
A-117 / identified A-41 & 53 in
Identification Parade held at Sitaram
Bldg.
124

P.W. 469 SEM –TIP Parade conduced on


Thakur 27.5.93 at Sitaram Bldg. / for PW
Ex. 1521 218 /identified A-41 & 53 / memo Ex.
1521.
PW 493 According sanction Ex. 1689 for Entire evidence
Yadav Prosecution of A-41, A-117, 118,
Sanction 124, 125, 120, 40 & 53 for the
Ex. 1689 offences under Arms Act on reports
of P.W. 680.
PW 499 According sanction Ex. 1717 for
Sahani Prosecution of A 110 under
Sanction Explosive Substances Act.
Ex. 1717

Prosecution is relying upon the confession of accused Samir


Hingora (A-53) as a substantive piece of evidence which is
substantial and paramount to prove the conspiracy & roles played
by accused Abu Salem Abdul Qayoom Ansari (A-139), accused
Abdul Qayuum Karim Shaikh, accused Riyaz Siddiqui, Accused
Mustafa Ahmed Umer Dossa (A-138) and all other accused before
the court.
Confession of A- 53 was recorded by Mr. K.L. Bishnoi on 18.05.1993
& 20.05.1993 which is at Exh. 878, 878-A

Mr. K.L. Bishnoi was examined by Prosecution as PW- 193, he has


deposed about recording of the confession of accused Samir Ahmad
Hingora (53), he has given the details which clearly show that every
precaution reasonably expected to be taken by a recording officer as
contemplated u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been
meticulously taken further, the guidelines laid down by the Hon’ble Apex
Court in case of Kartar Singh v State of Punjab reported in 1994 SCC (3)
569 have also been complied with.
He was extensively cross-examined by Defence, he sturdily withstood
the said gruelling cross-examination.
The Honourable Apex 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 his own appeal i.e. Criminal
Appeal No. 1104 of 2007 with 1026 of 2012 was convicted by the
125

Designated Court for the offence of conspiracy read with the


offences described at head firstly and sentenced to RI for 9 years
along with a fine of Rs. 1,00,000/-, in default, to further undergo RI
for 3 years for the commission of offence under Section 3(3) of
TADA. The appellant has been convicted for the offence under
section 3(3) of TADA for commission of acts mentioned at clause
(a) of head secondly, and sentenced to RI for 9 years along with a
fine of Rs. 1, 00,000/-, in default, to further undergo RI for 3 years.
(charge secondly)

The Apex Court held that –

“According to learned senior counsel for A-53, out of 9 years of


sentence awarded, he has completed 6 ½ (six and a half) years and
there are several extenuating circumstances for reduction of the
sentence. They are:

(i) The appellant is a sick person suffering from cardiac problems


since 2001;

(ii) He has 6 stents in his arteries;

(iii) The appellant, in addition to heart disease, is a diabetic patient


(on insulin). While diabetes on its own may not be a major ailment,
it assumes far greater seriousness when coupled with a serious
heart ailment.

(iv) The appellant has already faced protracted trial for 13 ½


(thirteen and a half) years on day to day basis. In fact, he has
continued attendance after conviction as per bail conditions for
further 5 years;

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 appeal filed by the accused is disposed of on the above terms.


The appeal filed by the CBI is dismissed.”

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) Sanjay Dutt (A-117)


2) Ibrahim Baba Musa Chauhan (A-41)

Availing the liberty granted by orders dated 24.08.2009 & 22.02.2011,


PW- 193 Mr. K.L Bishnoi was cross examined by Defence again; during
this part of trial PW-193 was again tenaciously withstood the same
gruelling cross examination, & Defence could not reveal anything
contrary to earlier evidence, the said evidence yet again remains without
a single dent & thereforehis evidence remains without a single dent &
therefore it can be safely reiterated that the confession of A-53 is
voluntary & truthful & hence remains a substantive and substantial piece
of evidence which can be used against all the co-accused in this case to
base convictions on. Any further questions that might be raised with the
intention denting the case of the Prosecution in the future by the
Defence in their arguments have already been succinctly addressed and
dealt with in the judgement of this Hon’ble Court in its judgement
delivered in 2006,2007 and in judgement of the Hon’ble Apex Court
delivered on 21.03.2013 and/or have been dealt with by various
judgements of the Hon’ble Apex Court which now stand as the settled
law on the same, the Prosecution craves leave to address any such
abovementioned issues that shall be brought to the fore by the Defence,
in its reply by referring to the same.

To point out some of the important findings of the Apex Court,


Prosecution during oral arguments, has already handed over the marked
copies of the decisions in appeals of these co-accused to this
Honourable Court.
127

These confessions of the co-accused are further corroborated by


the confessions of the following co-accused and recoveries thereof

Yusuf Mohsin Nullwala (A-118)

Proceedings of the confessional statement of Yusuf Mohsin


Nullwala (A-118) was recorded by DCP K. L. Bishnoi PW 193
which is at Exhibit No. 869, 869(A)

In his confession accused has confessed that-

1 He is R/o R.No. 29, 51/53, Umarkhadi, Hussainia Bldg, 2 ndFloor,


Bombay -09.

2 He is in the business of plumbing and steel fabrication. He


is fond of hunting, fishing etc.

3 Sometimes in 1970, he came in contact with Azhar Hussain.


Through, him he came in contact with Sanjay Dutt (A-117)
his cousin. Both he and Sanjay Dutt had common interest
in hunting. Subsequently, he became Sanjay Dutt’s family
friend and was helping them when Sanjay Dutt’s mother
was not well.

4 He was in possession of licence for weapons. He was having


one 12 bore gun, one .22 Rifle and .375 Single Barrel Magnum
Rifle.

5 He came in contact with Kersi Bapuji Adjania (A-124) who


was in steel fabrication.

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
128

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.

7 Next day he went to Sanjay Dutt’s (A-117) residence and


took that bag from the second floor room and opened it. He
found AK-56 Rifle, 2 empty magazines and 250 rounds of
AK-56. Also one pistol and one loaded Magazine of pistol.

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.

9 He explained the whole story and how Sanjay Dutt (A-117)


was in trouble. Upon which both went to his godown. He
himself tried to cut and melt it with the gas cutter but could
not succeed. Therefore, Adjenia (A-124) helped him to melt
the same.

10 Thereafter, he gave the pistol to Adjenia (A-124) and told


him to melt it after sometime. He himself collected the
melted remnants of AK-56 Rifle and threw them in the sea
at Marine Drive.

11 Next day, he kept rounds of AK-56 Rifle in 2 separate


bundles. Wrapped them in paper and threw them in the sea
opposite Oberoi Tower and went home.

12 Next day Sanjay Dutt (A-117) called him at his residence over
telephone. He told Sanjay Dutt that his instructions were
complied with.

13 Thereafter, he contacted Adjenia (A-124) and enquired about


the fate of pistol. Adjenia assured him not to worry and he would
destroy the pistol.

Corroborated by –
129

Main Evidence Against The Aforesaid Accused :

1) Evidence Of Confession of co-accused :

A. No. Ex. & Dt. Of confession Involves which need in this


episode
of A-117 Ex. 868 & 868-A dt. 26 & Himself, A-118, 124
28/4/93
of A- 41 Ex. 824 & 824-A dt. 23 & A-117
25/4/93
of A-53 Ex. 878 & 878-a dt. 18 & A-117
20/5/93
of A-89 Ex. 882 & 882-A dt. 24 & A-117
26/5/93
of A-124 Ex. 870 & 870-A dt. 27 & A-117, 118, 125
30/4/93

2) Oral Evidence Pertaining To The Aforesaid 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

DCP recodg. the conf. of Chief Para : 167 to 196


A-117 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 197 to 219


A-118 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 220 to 241


A-124 Cross Para : 760 to 775

3) Other Evidence :
130

PW 211 On 19.4.93 recording memorandum & PW 211 Against


Panch discovery panchanama Ex.1068 & Entire All
Sawant 1068-A of statement of A-117& PW 475
PW 475 leading to house of A-118. Entire
API RR Arresting of A-118 brought by Dongri PW 680
Joshi Police at Crime Branch by PW 680. Ch / Cr
PW 680 PI On 19.4.93 recording memorandum & 38 to 69
Walishettydiscovery panchanama Ex.1068-B &
1068-C of statement of A-118&
leading to house of A-124 and
producing rod Art.383-A and spring
Art. 383-B and taking charge of same
under panchanama Ex. 1068-C/
leading them to bungalow of A-125.
Arresting of A-125 / recording
panchanama Ex. 1068-D of statement
made by A-125/ leading them to
house of A-120.
A-120 making statement and Police
taking charge of pistol Art. 384-D colly.
and bullets Art. 385-D under
panchanama Ex.1068-E.
Recording Complaint Ex.1582 and
proforma FIR
Ex. 1582-A of PW 475 by PW 680.
PW 680 sending Articles seized from
A-120 to CA
(forwarding letter Ex.2558/CA report
Ex.2558-A).
P.W. 218 On guard duty at bungalow of Sunil Entire Against
PH Shinde Dutt on 16/1/93 three persons came in evidence A-117
Maruti van / had A-117 / identified A-
41 & 53 in Identification held at
Sitaram Bldg.
P.W. 469 SEM – TI Parade conduced on Chf Against
Thakur 27.5.93 at Sitaram Bodg. / for PW 218 Para 254 A-41 &
/ identified A-41 & 53 / 1521. to 269 53
Mem. Cross
Ex. 1521 Para
480 to
516,
PW 219 Senior Inspector attached to Khar Entire Corrobor
MV Police Stn. regarding posting of two ation to
131

Shirodkar policemen i.e. PN 14155 & PC 3497 PW 218


at bungalow of Sunil Dutt from 11.1.93
to 18.1.93 & entries Ex. 973 (11 to 18)
in respect of same.
PW 220 Personal dress man of A-117 Entire Hostile
Ahmad Ali regarding visiting and bungalow in
Shaikh connection with his work.
PW 265 Recording memorandum panchanama PW 265 A-124
Panch GB Ex. 1100 on 1.5.93 of statement made Entire
Sawant by A-124 / leading them to Karakhana PW 680
PW 680 PI at Kharwagalli at Kamathipura / taking Ch/ Cr
Walishetty charge of masons pan Art.387. red 83 to
colour gas cylinder Art. 388 & oxygen 91 / 103 A-118
cylinder Art. 389, tubes attached with to 125
gas cylinder Art. 390 & 391 and gas
cutter Art. 392 under panchanama Ex.
1100-A.
PW 680 sending the above articles to
CA under letter Ex.2558 & receiving
CA report Ex. 2558-A.
Recording memorandum panchanama
Ex. 1101 of statement made by A-
118 / leading them to Marne Drive /
taking charge of bullets Art. 386 colly.
under panchanama Ex. 1101-A.
PW 680 sending the above articles to
CA under letter 259 & receiving CA
report Ex. 2559-A.
PW 472 Attached with Computer Cell of MTNL, Entire
Alagappan Malabar Hill. Regarding furnishing
PW 529 print out Ex. 2532 colly. of STD & ISD
PSI Bane details for telephone No. 6462786
connected by Bandra Telephone
Exchange, to PW 529.
PW 680 Regarding A-117, A-118 & A-124 Entire
Walishetty expressing their desire to give
confession on 26.4.93
PW 493 According sanction Ex. 1689 for Entire
Yadev Prosecution of A-41, A-117, 118, 124, Evidence
125, 120, 40 & 53 for the offences
Sanction under Arms Act on reports of P.W.
Ex. 1689 680.
132

PW 499 According sanction Ex. 1727 for the


Sahani offences under Explosive Substances
Sanction Act.
Ex. 1727

Prosecution is relying upon the confession of accused Yusuf Mosin


Nullwalla (A-118) as a substantive piece of evidence which is
substantial and paramount to prove the conspiracy & role played
by accused Abu Salem Ansari (A-139) and Accused Kayum Shaikh
(Accused before the Court) and others.

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).

Confession of accused Yusuf Mosin Nullwalla (A-118) was recorded


by DCP K. L. Bishnoi PW 193 which is at Exhibit No. 869, 869-A.

Mr. K.L.Bishnoi was examined by Prosecution as PW- 193, he has


deposed about recording of the confession of accused Yusuf Mosin
Nullwalla (A-118)
He has given the details which clearly show that every precaution
reasonably expected to be taken by a recording officer as contemplated
u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been meticulously taken
further, the guidelines laid down by the Hon’ble Apex Court in case of
Kartar Singh v State of Punjab reported in 1994 SCC (3) 569 have also
been complied with. He was extensively cross-examined by Defence, he
sturdily withstood the said gruelling cross-examination.
133

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)

Availing the liberty granted by orders dated 24.08.2009 & 22.02.2011,


PW- 193 Mr. K.L Bishnoi was cross examined by Defence again; during
this part of trial PW-193 was again tenaciously withstood the same
gruelling cross examination, & Defence could not reveal anything
contrary to earlier evidence, the said evidence yet again remains without
a single dent & thereforehis evidence remains without a single dent &
therefore it can be safely reiterated that the confession of A-118 is
voluntary & truthful & hence remains a substantive and substantial piece
of evidence which can be used against all the co-accused in this case to
base convictions on. Any further questions that might be raised with the
intention denting the case of the Prosecution in the future by the
Defence in their arguments have already been succinctly addressed and
dealt with in the judgement of this Hon’ble Court in its judgement
delivered in 2006,2007 and in judgement of the Hon’ble Apex Court
delivered on 21.03.2013 and/or have been dealt with by various
judgements of the Hon’ble Apex Court which now stand as the settled
law on the same, the Prosecution craves leave to address any such
abovementioned issues that shall be brought to the fore by the Defence,
in its reply by referring to the same.
134

Kersi Bapuji Adjenia (A-124)

Proceedings of recording of confession of accused Kersi Bapuji


Adjenia (A-124) was recorded by DCP K. L. Bishnoi PW 193 which
is at Exhibit No. 870 and 870 (A)

In his confession he has stated that,

1. He is R/o 605, Karim Manzil, J.S.S. Road, Bombay-2.

2. He undertakes contract for steel fabrication. He has sub-


contractors whom he entrusts the excess work. He has 2-3 sets
of all instruments which he gives to his sub-contractors for
expediting the work.

3. Accused, Yusuf Mohsin Nullwala(A-118) was one of his sub-


contractors.

4. Both he and Yusuf Mohsin Nullwala(A-118) had another common


interest and that was hunting.

5. Nullwala’s friend Sanjay Dutt(A-117) was also fond of


hunting. He was introduced to Sanjay Dutt by Nullwala and
all three of them had gone to Surat for hunting.

6. In the first week of April, 1993, Yusuf Mohsin Nullwala (A-


118) came to him at 10:00 am with black rexin bag. He told
that Sanjay Dutt(A-117) had telephoned him and told that he
had one AK-56 Rifle and other things which were lying at his
house which the Police had come to know.

7. Since he was in great trouble, Sanjay Dutt had requested


him to collect it and destroy it. So, Nullwala had gone to
Sanjay Dutt’s residence and collected it. He further told that
he has already cut it into pieces and wanted to completely
135

destroy it with gas cutter. Nullwala showed him the cut


pieces of AK-56 Rifle.

8. Since he had read in the newspaper about Sanjay Dutt (A-


117) possessing an AK-56 Rifle, initially he resisted and told
Nullwala that he would not like to get involved in it.

9. Then Yusuf Nullwala (A-118) told him that if he goes to


somebody else, he is likely to be caught. Instead requested
to provide gas cutter which he himself would do. Therefore,
he gave his gas cutter. Then Nullwala went to his godown
and started destroying pieces of AK-56 Rifles with gas
cutter.

10. He followed Nullwala (A-118) to his godown to just over see no


mishap takes place. But Nullwala was not able to properly
destroy the Rifle. Therefore, he adjusted the gas and started
melting the pieces of Rifles with the gas cutter. Due to grease
on the Rifle, lot of smoke was coming out. With great difficulty the
AK-56 Rifle was destroyed. Then Nullwala took out one pistol
from the bag and wanted to destroy it.

11. Due to the smoke, which emanated during destroying of AK-56


Rifle, he had some breathing problem. Moreover, Nullwala (A-
118) wanted him to destroy the pistol also with gas cutter.
Therefore, he told Nullwala to leave the pistol which he
would destroy some other time.

12. Nullwala (A-118) collected the remnants of AK- 56 Rifle in a


plastic bag and gave pistol to him for destruction and went
away.

13. After two days, Nullwala (A-118) enquired whether the pistol
was destroyed. He told Nullwala not to worry about it.

14. He was to go to Kolkota. He telephoned his friend, Rusi


Framrose Mulla (A-125). Next day morning Rusi came to his
house. He gave him the pistol and told him to keep in safe
custody as he was proceeding to Kolkota. He also told him
136

that he would collect the pistol on his return from Kolkota.


However, he did not tell Rusi about the circumstances under
which the pistol had come to him.

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.

In his confession he has mentioned that-


He has aided and abetted his friend accused Sanjay Dutt to destroy the
AK-56 rifle and the Pistol.
Corroboration to the above confession is afforded by following evidence

Main Evidence Against The Aforesaid Accused :

1) Evidence Of Confession of co-accused:

A. No. Ex. & Dt. Of confession Involves which need in this


episode
of A-117 Ex. 868 & 868-A dt. 26 & Himself, A-118, 124
28/4/93
of A- 41 Ex. 824 & 824-A dt. 23 & A-117
25/4/93
of A-53 Ex. 878 & 878-a dt. 18 & A-117
20/5/93
of A-89 Ex. 882 & 882-A dt. 24 & A-117
26/5/93
of A-118 Ex. 869 & 869-A dt. 27 & A-117, A-124
29/4/93

2) Oral Evidence Pertaining To The Aforesaid 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
Chief Para : 398 to 416
137

P.W. DCP recodg. the conf. of Cross Para :776 to 817


193 A-53
Bishnoi
DCP recodg. the conf. of Chief Para :475 to 494
A-89 Cross Para :600 to 668, 677 to
705,754 to 759

DCP recodg. the conf. of Chief Para : 167 to 196


A-117 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 197 to 219


A-118 Cross Para : 706 to 753

DCP recodg. the conf. of Chief Para : 220 to 241


A-124 Cross Para : 760 to 775

3) Other Evidence :

PW 211 On 19.4.93 recording memorandum & PW 211 Against


Panch discovery panchanama Ex.1068 & Entire All
Sawant 1068-A of statement of A-117& PW 475
PW 475 leading to house of A-118. Entire
API RR Arresting of A-118 brought by Dongri PW 680
Joshi Police at Crime Branch by PW 680.
138

PW 680 PI On 19.4.93 recording memorandum & Ch / Cr


Walishetty discovery panchanama Ex.1068-B & 38 to 69
1068-C of statement of A-118&
leading to house of A-124 and
producing rod Art.383-A and spring
Art. 383-B and taking charge of same
under panchanama Ex. 1068-C/
leading them to bungalow of A-125.
Arresting of A-125 / recording
panchanama Ex. 1068-D of statement
made by A-125/ leading them to
house of A-120.
A-120 making statement and Police
taking charge of pistol Art. 384-D colly.
and bullets Art. 385-D under
panchanama Ex.1068-E.
Recording Complaint Ex.1582 and
proforma FIR
Ex. 1582-A of PW 475 by PW 680.
PW 680 sending Articles seized from
A-120 to CA
(forwarding letter Ex.2558/CA report
Ex.2558-A).
P.W. 218 On guard duty at bungalow of Sunil Entire Against
PH Shinde Dutt on 16/1/93 three persons came in evidence A-117
Maruti van / had A-117 / identified A-
41 & 53 in Identification held at
Sitaram Bldg.
P.W. 469 SEM – TI Parade conduced on Chf Against
Thakur 27.5.93 at Sitaram Bodg. / for PW 218 Para 254 A-41 &
/ identified A-41 & 53 / 1521. to 269 53
Mem. Cross
Ex. 1521 Para
480 to
516,
PW 219 Senior Inspector attached to Khar Entire Corrobor
MV Police Stn. regarding posting of two ation to
Shirodkar policemen i.e. PN 14155 & PC 3497 PW 218
at bungalow of Sunil Dutt from 11.1.93
to 18.1.93 & entries Ex. 973 (11 to 18)
in respect of same.
PW 220 Personal dress man of A-117 Entire Hostile
139

Ahmad Ali regarding visiting and bungalow in


Shaikh connection with his work.
PW 265 Recording memorandum panchanama PW 265 A-124
Panch GB Ex. 1100 on 1.5.93 of statement made Entire
Sawant by A-124 / leading them to Karakhana PW 680
PW 680 PI at Kharwagalli at Kamathipura / taking Ch/ Cr
Walishetty charge of masons pan Art.387. red 83 to
colour gas cylinder Art. 388 & oxygen 91 / 103 A-118
cylinder Art. 389, tubes attached with to 125
gas cylinder Art. 390 & 391 and gas
cutter Art. 392 under panchanama Ex.
1100-A.
PW 680 sending the above articles to
CA under letter Ex.2558 & receiving
CA report Ex. 2558-A.
Recording memorandum panchanama
Ex. 1101 of statement made by A-
118 / leading them to Marne Drive /
taking charge of bullets Art. 386 colly.
under panchanama Ex. 1101-A.
PW 680 sending the above articles to
CA under letter 259 & receiving CA
report Ex. 2559-A.
PW 472 Attached with Computer Cell of MTNL, Entire
Alagappan Malabar Hill. Regarding furnishing
PW 529 print out Ex. 2532 colly. of STD & ISD
PSI Bane details for telephone No. 6462786
connected by Bandra Telephone
Exchange, to PW 529.
PW 680 Regarding A-117, A-118 & A-124 Entire
Walishetty expressing their desire to give
confession on 26.4.93
PW 493 According sanction Ex. 1689 for Entire
Yadev Prosecution of A-41, A-117, 118, 124, Evidence
125, 120, 40 & 53 for the offences
Sanction under Arms Act on reports of P.W.
Ex. 1689 680.
PW 499 According sanction Ex. 1727 for the
Sahani offences under Explosive Substances
Sanction Act.
Ex. 1727
140

Prosecution is relying upon the confession of accused Kersi Bapuji


Adjenia (A-124) as a substantive piece of evidence which is
substantial and paramount to prove the conspiracy & role played
by accused Abu Salem Ansari (A-139) and Accused Kayum Shaikh
(accused before the Court) and others.

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.

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.

Confession of accused Kersi Bapuji Adjania(A-124) was recorded


by DCP K. L. Bishnoi PW 193 which is at Exhibit No. 870 and 870
(A)
Mr. K.L. Bishnoi was examined by Prosecution as PW- 193, he has
deposed about recording of the confession of accused Kersi Bapuji
Adjania (A-124)
He has given the details which clearly show that every precaution
reasonably expected to be taken by a recording officer as contemplated
u/s 15 r/w rule 15 of TADA (P) Act, 1987 has been meticulously taken
further, the guidelines laid down by the Hon’ble Apex Court in case of
Kartar Singh v State of Punjab reported in 1994 SCC (3) 569 have also
been complied with.
He was extensively cross-examined by Defence, he sturdily withstood
the said gruelling cross-examination.
The Honourable Apex Court while deciding the appeals arising from the
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. 1687 of 2007, has gone onto
convict the accused for offence 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 2 years along with a fine of Rs. 25,000/-,
in default, to suffer further RI for a period of 6 months.(ii) The
141

appellant has been further convicted for the offence punishable


under Section 201 of IPC mentioned at head sixthly and sentenced
to suffer RI for 2 years. However, the aforesaid accused also being
not found guilty of all other offences for which he was charged at
trial.

Availing the liberty granted by orders dated 24.08.2009 & 22.02.2011,


PW- 193 Mr. K.L Bishnoi was cross examined by Defence again; during
this part of trial PW-193 was again tenaciously withstood the same
gruelling cross examination, & Defence could not reveal anything
contrary to earlier evidence, the said evidence yet again remains without
a single dent & thereforehis evidence remains without a single dent &
therefore it can be safely reiterated that the confession of A-124 is
voluntary & truthful & hence remains a substantive and substantial piece
of evidence which can be used against all the co-accused in this case to
base convictions on. Any further questions that might be raised with the
intention denting the case of the Prosecution in the future by the
Defence in their arguments have already been succinctly addressed and
dealt with in the judgement of this Hon’ble Court in its judgement
delivered in 2006,2007 and in judgement of the Hon’ble Apex Court
delivered on 21.03.2013 and/or have been dealt with by various
judgements of the Hon’ble Apex Court which now stand as the settled
law on the same, the Prosecution craves leave to address any such
abovementioned issues that shall be brought to the fore by the Defence,
in its reply by referring to the same.

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 –

Mohd. Kasam Lajpuria @ Mohd. Kalia @ Mohd. Chacha @


Mechanic Chacha Ahmad Miyan Ramzan Miya (A-136)

Confession A- 136 was recorded by Mr. O. P Chhatwal on 09.11.1999 &


10.11.1999 which is at Exh. 2600, 2600A –
142

“For the purpose of landing, Mohd. Dosa company had 3 trucks,


one of them was bearing Reg No. 1051. They also had 2 Tempos,
one Maruti 800 car, one Maruti van and one Gypsy. All these
vehicles had cavities specially made to conceal contraband goods.
All these vehicles were purchased in false names.

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.

Meanwhile, Uttam Potdar (A 30) and one Custom Officer also


reached there in a jeep. Uttam also spoke to Police officer and it
was decided that Rs. 8 lakhs would have to be paid to the Police.
Since they had no cash of Rs. 8 lakhs, the Police kept 5 silver
bricks with them as security. Patil (A 116) told them to take back
silver bricks after paying cash as agreed. The truck intercepted was
bearing Reg No. 1051.

…. Qayum had told him that he had given the weapons to


somebody on Bharuch Highway in Gujarat. Such instructions were
given by Mustafa Majnu.”

Mohammed Samil Mira Moiddin Shaikh @ Salim Kutta (A-134)

Confession of accused Mohamed Samil Mira Moiddin Shaikh @


Salim Kutta (A-134) was recorded by Mr.S.K. Saikia on 18.08.1995
which is at Exh. 1604, 1604A–
“These arms and ammunitions were filled in the cavities of truck
No. MRL 1051 which belonged to Mohd. Dossa Company. All arms
could not be accommodated in cavities of the truck.

Kayyum Sajni who had taken the truck No. MRL 1051 towards
Gujarat on his return told him that the arms and ammunition had
143

been delivered to Hazi Rafiq Kapadia of Bharuch on the


instructions of Mustafa Dossa.

As per instructions of Mechanic Chacha MRL 1051 was taken by


Abdul Kayyum Sajni, Amir Mota driver & cleaner Babu Madrasi
towards Gujarat, they were instructed to remain in touch with
Mechanic Chacha & Mustafa Majnu.”

Evidence adduced by the independent witnesses.

To prove the role of this accused Prosecution has led the evidence of:-

Smt. Noor Jahan (PW-687) :-

1. This witness has stated that, the entire 2nd floor of her
building was owned by one Smt. Begam Para which was

3. then purchased by Noora, brother a Dawood Ibrahim.


Thereafter, Noora started living there with his family. One
Riyaz Siddiqui also was staying with hem. Witness was
residing at the said place since 1968. As a result, she
came to know Riyaz Siddiqui.

4. This witness has identified the accused Riyaz Siddiqui in


the Court.

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

received a call from Riyaz Siddiqui from Dubai informing


her that he had pleaded on her behalf before Noora and
that the she should not get scared. On the same call Noora
also spoke and apologized. Thereafter, she did not receive
any call from Noora or Riyaz Siddiqui.

7. She has further stated that, in the second week of January,


1993 Riyaz Siddiqui came to her residence and enquired
whether she would like to go to Ajmer. She being devotee
of Khwaja Garib Nawaz of Ajmer, she agreed to accompany
him. On same evening, he along with one Shaukat driver
came to her residence in a white Maruti Van. They all left
their residence. Enroute, one Naseem joined them at
Mahim. They all reached Bharuch in the morning. The
white Maruti van was parked in front of Maharaja Hotel at
Bharuch. Where the witness went into the Hotel, others
remained in the van.

8. She has further stated that, after sometime accused Riyaz


Siddiqui came near the Maruti Van and told them to alight
from the van and board a Maruti 1000 which was also
parked nearby. Accordingly, they all boarded and again
proceeded towords Mumbai. Upon enquiry, accused Riyaz
Siddiqui told her that as some work had cropped up at
Mumbai their visit to Ajmer had to be cancelled. However,
he promised her to take to Ajmer on next time. In February
1993, Riyaz Siddiqui went to Dubai.

Shri. Nasim Ahmad Shaikh , (PW 688)

1. This witness has stated that, he knew Shaukat Kedia driver of


accused Riyaz Siddiqui, he knew Riyaz Siddiqui for past 19 to
20 yrs. As, Riyaz was involved in smuggling of gold / silver for
Dawood Ibrahim and his brother Anees Ibrahim.
145

2. He has identified Riyaz Siddiqui in the Court.

3. He has further stated that, in 2 nd week of January, 1993, his


friend Shaukat Kedia met him and told that he had to go to
Bharuch in Gujarat to handover a vehicle and money to a
person of Anees Ibrahim Kaskar who was supposed to wait for
them at Bharuch. Shaukat had also told him that some secret
cavities were made in the vehicle for concealing arms and
ammunition. He further told him to accompany him to Bharuch.

4. He has further stated that, accordingly, he waited for Shaukat


at Mahim between 7:00 and 7:30 pm. After about half an hour
one white Maruti van bearing Gujarat Registration driven by
Shaukat arrived. In the van apart from Shaukat Kedia, Riyaz
SIddiqui and an old lady were seating in the vehicle.

5. He has further stated that, In the morning they reached


Bharuch and stopped opposite Hotel Maharaja. While they
remained in the van, Riyaz Siddiqui went to Hotel Maharaja
and returned after some time and told them to get in a Maruti
1000 car which was parked nearby.

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.

Usage of “saman” as a synonym of weapons has been taken


into account by the Hon’ble Apex Court on 21.03.2013 in our
case in the earlier part of the trial while adjudicating on
Appeals of V.K Patil (A-116) i.e.in Criminal Appeal No. 1441 of
2007 and that of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-
136) i.e. Criminal Appeal No. 401 of 2008 & Criminal Appeal
No. 1023 of 2012.
146

Babar Khan (PW-1 in BBC 1-A and 1-B of 1993) .

1. He has deposed that, in January 1993, Abu Salem and


Mehandi Hasan, his acquaintances came to their Estate
Agency Office at 5:00 to 5:30 pm and met his elder brother,
Haider. Thereafter, Abu Salem told him and Haider to sit in
white Maruti 1000. He directed Mehandi Hasan to follow in
Maruti 800. He (Abu) spoke to his brother Haider and then
asked him also to accompany on the other day.

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.

3. Next day he saw a Maruti van of Gujarat Registration. In the


van he, Haider, Abu Salem, Mehandi Hasan and a person by
name Sheth went on Bharuch Highway. On the highway they
met a person whose face was muffled, got into the van. The
said person identified himself as sent by Mustafa Dosa.

4. They stopped at a Hotel where he and Mehandi Hassan


alighted and had breakfast. Whereas Hyder, Abu Salem and
the unknown person left in the van and returned after 2-3
hours. Thereafter, they all returned to Mumbai. The person
with muffled face was dropped on the Highway Hotel.

5. He has deposed that, In ‘92-‘93 he was working as an Estate


Agent with his brother Nisar in New Link Road, Jogeshwari. His
brother Haider also used to come to the said office though he was
not working there.
147

6. He has further deposed that, He knows Mohd. Hasan Mehendi


Hasan @ Sunny (residing in the same area opposite his house)
and he also knows AbuSalem, he also used to go to his brother’s
office

7. He identified accused Abu Salem in Court.

8. He has further deposed that, i n the second week of January,


1993 Mehendi Hasan and Abu Salem went to their office to meet
his brother Haider at about 5 to 5.30 pm, they had come in a
Maruti-800 car and talked to his brother Haider, then they came
out of his office and witness also accompanied them while closing
the office.

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.

12. Abu Salem asked Mehendi Hasan to follow them in Maruti-800,


from there they went to their office where witness, his brother
Haider were dropped.

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.

14. On the next day, at about 6:00-6:30 am Abu Salem, Mehendi


Hasan and one more person went to the witness’ office.
Thereafter, they all sat in a white Maruti 1000 car in order to go to
Bharuch, it was the same car in which they had come from
148

Kalina, Santacruz in the evening on the previous day.

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.

Mr. Usman Musa Lakha Gani (PW-698)

1. He in his deposition has stated that, in 1993 he was engaged in


transport business at Bharuch.

2. He knew one Haji Rafiq Kapadia since 1980, he was also engaged
in transport.

3. He had his godown at Sansrod, 22 km. from Bharuch, which was


situated on National Highway No. 8 and was out of octroy limits.
(Corroborates to the confessions of A-134 Salim Mira Moiddin
Shaikh and Mohd. Kasam Lajpuria @ Mechanic Chacha A-136
who have disclosed the fact that the arms and ammunitions
were delivered to someone at Gujarat on National Highway.)

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.

5. On 18.02.1992, agreement was executed on stamp paper, one key


was kept with witness (as it was difficult for Kapadia to come every
time)

6. In second week of January 1993, he received phone call from Haji


Rafiq, he told him that he was speaking from Narmada Hotel, his
goods were on way to godown and he (witness) should get the
150

goods unloaded in godown, he asked him to remain present in the


hotel besides godown.

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

15. At about 3.30 pm Haji Rafiq came to godown in white Maruti


Van. Haji Rafiq had come in one van with one black complexion
boy and one fair complexion boy. (black complexion boy was of 18
– 20 yrs. Whereas white complexion boy was of 20 – 22 yrs.)

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.

17. In June, 1995 his statement was recorded by Gujarat Police,


they had come with Haji Rafiq.

18. He identified Abu Salem in court as a boy who was being


called as Salim, who had come in van and had taken away the
guns and grenades from godown.

19. The defense during his cross examination has brought on


record that, he was arrested by A.T.S. Ahmedabad in connection
with storing of same goods in his godown. His statement was
recorded by magistrate and he had narrated the same thing which
he has narrated before this Court.

20. He was also threatened by defense by filing an application


u/s. 319 of Cr.P.C. in this Court.

21. He was also threatened by suggesting that his evidence in


this case may affect his defense in appeal pending before
Supreme Court or in case at Anklav.

22. He was also threatened that, his statement in this case may
be used against him in Anklav Court or in appeal.

23. Despite all these threats he undeterred deposed all the


said facts supporting the case of Prosecution.

24. He had given confession in that case which was under


duress.
152

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.

He was also cross examined by A – 138 (Mustafa Dossa), A – 139(Abu


Salem), A – 140(Riyaz Siddiqui) and A – 141 (Abdul Kayum Karim
Shaikh). In entire cross examination none of them could achieve
anything beneficial to them in their defense from this witness.

Mohd. Rafiq Hussain Bhai Kapadia @ Haji Rafiq , (PW 697),

1. This witness in his deposition has stated that, he has his


ancestral business of cloth at Bharuch (Gujarat), he was
purchasing cloth for his shop of Mustafa Dosa located at
Manish Market. He has a godown at Sansrod 20 Kms away
from Bharuch (Gujarat).

2. Thereafter, he turned hostile, and denied the contents of the


statement recorded by CBI.

PW-219 Mr. Manohar Vasudeo Shirodkar:

1. He in his deposition has deposed that, he was posted and he had


worked as Senior Inspector of Police with Khar Police Station from
11/3/1992 uptil 31/8/1995.

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
153

distributing the duties as per the instructions given by him.

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.

6. After the communal riots of December, 1992, the said security


arrangement were strengthened as per the order of DCP, Zone-VII
and instead of one constable two constables were posted at the said
bungalow of Sunil Dutt during the day time and another two
constables were posted during the night time.

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.

8. On 7/1/1993 he received the letter dated 6/1/1993 written by Sunil


Dutt to DCP Zone-VII Shri Patnaik for further enhancing the security
arrangement provided at the bungalow of Sunil Dutt.

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.

P. H. Shinde, Police Naik. (PW-218)

1. He has deposed that, at the relevant time he was Police Naik.


And was posted as guard at the Bungalow of film actor Sanjay
Dutt. from 11.01.1993.

2. He has further deposed that, on 16.01.1993, he was near the


2nd gate between 07:00 and 7:30 am. At about 7:30 am one
white Maruti van came to Gate No. 2 which was allowed to
enter within the compound by the watchman.

3. Three occupants of the van alighted from the van and told the
watchman to call Sanjay Dutt. After sometime sanjay Dutt
155

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.

4. He has identified the occupants of van as Ibrahim @ Baba


Musa Chauhan and Samir Hingora in the Court. The PW
has identified accused Sanjay Dutt also.

In support of the arrest of this accused Prosecution has examined


following witnesses,

Vijay Vasant Bajare, (PW 689) Asst. Immigration Officer ,

1. This witness has stated that, on 11/11/2005 he was on duty at


8.30 am. A CBI team brought accused Abu Salem from
Lisban, Portugal. When Abu Salem passed the Immigration
Counter he submitted the Emergency Certificate and the
Disembarkation Card.

2. This witness has identified the Emergency Certificate (Exh.


50), issued by Indian Embassy at Lisbon. The same was
impounded by him and he issued its acknowledgment slip
(Exh. 49). He has also identified the Disembarkation card
submitted by Abu Salem which is marked at Exh. 51.

In support of the confirmation of the fact confessed by accused


Abu Salem, of having got false passport prepared in the name
of Akil Ahmed Azmi Prosecution has examined PW-690 who has
deposed that,

Shri Marshal Kajur , (PW 690),

1. He has deposed that he was the Supdt, Regional Passport


Office, Lucknow.

2. Shri Rakesh Shankar was the RPO, Lucknow on 06.07.1993.


156

3. The original file through which passport in the fake name,Akil


Ahmad Azmi was issued to accused Abu is identified by him
the same and is marked as Exhibit – 55.

4. He has further confirmed that, vide the said file a passport was
issued to Abu Salem in the name of Akil Ahmad Azmi.

Raman Tyagi, (PW 699) DySP,

1. This witness has deposed that, he is the IO of the case


wherein accused Abu Salem was arrested.

2. On the night intervening 10th and 11th November 2005, on receipt


of call over telephone from DIG, Chhatwal, he reached CSI Airport
at 7.30am. At 08.30am a Special Indian Air Force plane brought
accused Abu Salem to India. The immigration formalities were
completed by DIG, Chhatwal.

3. He was brought to CBI office and shown arrested at 11.00 am.


Arrest and Personal Search Memo was prepared which is marked
as Exhibit : 85. The Seizure Memo is marked as Exhibit : 86 .

4. Accused Abu Salem was produced on 11/11/2005 in the Court


and was granted PC till 23/11/2005 with conditions that he be
allowed to be interviewed by his advocate on alternate days. He
was taken to J.J Hospital for medical examination. Because of
security hazard, the subsequent visit of the doctor were to CBI
STF Office.

5. Accused Abu Salem had obtained a passport in the fictitious


name of Akil Ahmad Azmi from RPO, Lucknow. CBI STF New
Delhi had registered a case. Therefore, the Passport file of the
applicant was called. The said file is marked as EX-55. Statement
of Marshal Kujur was got recorded.

6. On 19/11/2005, while interrogating, Abu Salem desired to give


voluntary confession. Accordingly, he requested in writing to DIG
Chhatwal. DIG Chhatwal directed the him to produce the accused
before him at 8.30am. Accordingly, he produced Abu Salem
before the DIG and identified the accused. The DIG asked him to
157

go out of the room.

7. On 20/11/2005, DIG O.P.Chhatwal handed over the custody of the


accused to him. At that time he also gave a sealed envelope to be
handed over to CMM along with the accused.

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.

9. He has further deposed that, during course of investigation role of


accused Aziz Bilakia, Riyaz Siddiqui and Abdul Kayyum Karim
Shaikh were disclosed.

10. He has further deposed that, he examined Vijay Vasant


Vajare (PW 687), Immigration Officer who had produced
Emergency Certificate of Abu Salem.

11. He has further deposed that, accused Riyaz Siddiqui was


arrested by ATS Mumbai. His custody was taken after arresting
him on 04/01/2006 till 13/01/2006. Similarly, custody of Abu Salem
was taken from 05/01/2006 till 09/01/2006.

12. On 10/01/2006, the PW recorded the statement of Haji Rafiq


Kapadia (PW 697).

13. On 12/01/2006, the he examined Babar Khan (PW1) on


15/01/2006, Nasim Ahmad, on 18/01/2006 , Usman Gani Musa
Lakha (PW 698), on 21/01/2006, Noorjahan and Sunil
Tondalwalkar on 01.02.2006.

14. He has further deposed that, on 01/03/2006 the he filed


Supplementary Report u/s 173 of Cr. PC. against Abu Salem,
Riyaz Ahmad Siddiqui, Aziz Bilakia and Abdul Kayyum Karim
Shaikh. Accused Abdul Kayyum and Aziz Bilakia were then shown
as absconding accused.

15. He has further deposed that, accused Abdul Qayyum Karim


Shaikh was arrested by Mumbai Police on 13/14/12/2007 and
produced before TADA Court. His custody was taken till
20/12/2007.

16. He examined Yusuf Mushtaq. On 29/01/2007 Abdul Sattar


158

Teli was examined. The PW filed Supplementary Report against


accused Abdul Kayyum Karim Shaikh. The PW has identified the
accused in the Court.

RECOVERIES -

Searches seizures and recoveries at the instance of accused.

I] Recovery at the instance of Baba Musa Chauhan (A-41)


Recovery at the instance of 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.
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
159

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

preceded by any adjective like 'knowingly', yet it is common ground


that in the context the word 'possession' must mean possession with
the requisite mental element, that is, conscious possession and not
mere custody without the awareness of the nature of such possession.
There is a mental element in the concept of possession. Accordingly,
the ingredient of 'possession' in Section 5 of the TADA Act means
conscious possession. This is how the ingredient of possession in
similar context of a statutory offence importing strict liability on account
of mere possession of an unauthorised substance has been
understood.
xxxxxx
25. The significance of unauthorised possession of any such arms and
ammunition etc. in a notified area is that a statutory presumption
arises that the weapon was meant to be used for a terrorist or
disruptive act. This is so, because of the proneness of the area to
terrorist and disruptive activities, the lethal and hazardous nature of
the weapon and its unauthorised possession with this awareness,
within a notified area. This statutory presumption is the essence of the
third ingredient of the offence created by Section 5 of the TADA Act.
The question now is about the nature of this statutory presumption.
xxxxxxx
27. There is no controversy about the facts necessary to constitute the
first two ingredients. For proving the non-existence of facts constituting
the third ingredient of the offence, the accused would be entitled to
rebut the above statutory presumption and prove that his unauthorised
possession of any such arms and ammunition etc. was wholly
unrelated to any terrorist or disruptive activity and the same was
neither used nor available in that area for any such use and its
availability in a "notified area" was innocuous. Whatever be the extent
of burden on the accused to prove the non-existence of the third
ingredient, as a matter of law he has such a right which flows from the
basic right of the accused in every Prosecution to prove the non-
existence of a fact essential to constitute an ingredient of the offence
for which he is being tried. If the accused succeeds in proving non-
existence of the facts necessary to constitute the third ingredient alone
after his unauthorised possession of any such arms and ammunition
etc. in a notified area is proved by the Prosecution, then he cannot be
convicted Under Section 5 of the TADA Act and would be dealt with
and punished under the general law. It is obviously to meet situations
of this kind that Section 12 was incorporated in the TADA Act.
161

20. Therefore, the only requirements under the statutory provisions


are, that (1) a person must be in possession of some contraband
material; (2) the person must have knowledge of his possession i.e.
conscious possession; (3) it should be in the notified area. Once
possession is established, the burden is on the accused to show that
he was not in conscious possession.
21. After considering the entire evidence on record, the learned
Designated Court came to the conclusion that the Appellant (A-41) was
aware that the arms and ammunition which were handled by him were
to be used during riots against Hindus. The father of the Appellant (A-
41), had collected a bag of contraband kept with Iqbal Tunda through
Haji Ismail, and handed over the same to the police. The Designated
Court held that the confessions of the co-accused established the role
played by the Appellant (A-41) in supplying weapons to A-117. The
confession of A-117 does not reveal the name of the Appellant (A-41),
but the same is obvious as A-117 did not know the Appellant prior to
the said meeting. Thus, it is clear that the fourth person referred to in
the confession of A-117 is none other than the Appellant (A-41). The
Court held that a consideration of the entire evidence leads to the
inescapable conclusion that the Appellant (A-41) was in unauthorised
possession of AK-56 rifles, magazines, ammunition and hand
grenades, and that he had distributed a part of the material to A-117,
kept the hand grenades with himself, and had handed over an AK-56
rifle to Salim Kurla (dead). All the said acts were committed by him at
the behest of Salim (AA) and Anees Ibrahim, and thus he has
committed an offence punishable Under Sections 3(3) and 5 TADA.
Being in the unauthorised possession of weapons in a notified area,
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.”

II] Recovery at the instance of A-72 :-


Evidence regarding the recovery at the instance of A-72
PW 44 Panch & Officer regarding drawing
Panch PM memo. Panchanama Ex. 154 of
Chalke statement made by A-72 on 2.4.93
& A-72 leading them to R.hlo.202 Entire
PW 605
of Noora Bldg, at Oshiwara &
PSI
under discov. Panchanama Ex.
Nerlekar
162

Memo 155 taking charge of PW 44 panch


Panchnama PM Handgranade Art 72(i) to (xiv)
Ex. 154 72 (xv) & plastic bag Art (xvi)
Disc. Panch
Ex. 155
PW 662 Sr. PI DCB, CID forwarding the Ch. Para : 10 & 11
WR components of recovered material Cr. Para : Entire
Kulkami to CA vide Ex. 2439 dt. 24/08/93
through PW 604 and receiving CA
Ex. 2439 let
report Ex. 2439-A
to CA. CA
rep Ex
2439 - A

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.”

III] Recovery at the instance of accused Sanjay Sunil Dutt (A-117)

Recovery at the instance of accused Sanjay Sunil Dutt (A-117) in the


presence of independent panch witness PW-211 Mr. Sawant by officer
PW-680 Mr. Walishetty on 19.04.1993, the events unfolded as follows-
Accused Sanjay Dutt made a voluntary statement in Hindi language and
as the said accused had started making statement, PW-680 instructed
API Shri Joshi to record the same in the memorandum panchanama.
Both the panch witnesses stated that the said memorandum
164

panchanama was correctly recorded and, thereafter, signed upon the


same. The said panchanama is at ''Exhibit 1068'' . Then accused
Sanjay Dutt lead them to Husseini Building at Dongri, Umar Khadi as
instructed by accused Sanjay Dutt and all of them alighted the said
vehicle. Accused Sanjay Dutt went on the 2 nd floor of the said building
and PW-680, panch witnesses and other staff followed him. accused
Sanjay Dutt went to the Room No.29 on the 2 nd floor and knocked the
closed door of the said room. After moments, the same was opened by
a lady and accused Sanjay Dutt asked her as to where Yusuf Nulwala
was. the said lady her name and she told that she was sister-in-law of
Yusuf Nulwala and her name was Jumma Saifuddin Nulwala. Shri
Joshi recorded the sais events at the said place. Thereafter, the said
record was read over to panch witnesses and they signed upon the
same. PW-680 also signed upon the same after he had read the same
and found that the same was correctly made. It is at Exh.1068-A.
After 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. Thereon Yusuf Nulwala made a statement in Hindi and as
instructed by PW-680, API Shri Joshi recorded the same in continuation
of the panchanama drawn on the said day. further panchanama drawn
in the 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 door bell for the flat on the ground floor and after few
moments, the same was opened by an elderly person. Accused Yusuf
165

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.

Regarding the abovestated recovery the Hon’ble Designated court in its


final judgment has held the recovery to be proved in part 37 of the final
judgment; further Hon’ble Apex Court was pleased to hold that –
“60. The entire sequence of abovesaid events have been proved Shri
Suresh S. Walishetty (PW-680)-the Investigating Officer and Sh.
Rajaram Ramchandra Joshi (PW-475)-the Assistant Inspector of
Police. The above said incident has also been witnessed and proved
by an independent witness, viz. PW-211. Further, the credibility of the
witness has not been shaken despite vigorous cross examination.
Section 27 of the Indian Evidence Act:
61. This Court, while dealing with the law relating to Section 27 of the
Indian Evidence Act observed about the possibility and plausibility of
such recoveries as followed in State (NCT of Delhi) v.Navjot Sandhu
(2005) 11 SCC 600 which are as under:
142. There is one more point which we would like to discuss i.e.
whether pointing out a material object by the accused furnishing the
information is a necessary concomitant of Section 27. We think that
the answer should be in the negative. Though in most of the cases the
person who makes the disclosure himself leads the police officer to the
167

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

persons would not have uttered informatory words in a chorus. At best,


one person would have made the statement orally and the other
person would have stated so substantially in similar terms a few
seconds or minutes later, or the second person would have given
unequivocal nod to what has been said by the first person. Or, two
persons in custody may be interrogated separately and simultaneously
and both of them may furnish similar information leading to the
discovery of fact. Or, in rare cases, both the accused may reduce the
information into writing and hand over the written notes to the police
officer at the same time. We do not think that such disclosures by two
or more persons in police custody go out of the purview of
Section 27 altogether. If information is given one after the other without
any break, almost simultaneously, and if such information is followed
up by pointing out the material thing by both of them, we find no good
reason to eschew such evidence from the regime of Section 27.
However, there may be practical difficulties in placing reliance on such
evidence. It may be difficult for the witness (generally the police
officer), to depose which accused spoke what words and in what
sequence. In other words, the deposition in regard to the information
given by the two accused may be exposed to criticism from the
standpoint of credibility and its nexus with discovery. Admissibility and
credibility are two distinct aspects, as pointed out by Mr Gopal
Subramanium. Whether and to what extent such a simultaneous
disclosure could be relied upon by the Court is really a matter of
evaluation of evidence...
It was contended that under Section 27 of the Evidence Act, only
recovery of object is permissible and identification of the person
instead of the place where the article is to be found cannot attract the
provisions of Section 27.
62. The very same situation has been considered by this Court
in Jaffar Hussain Dastagir v. State of Maharashtra, (1969) 2 SCC
872, 875 wherein the following observations are pertinent:
4. ... In order that the section may apply the Prosecution must
establish that the information given by the Appellant led to the
discovery of some fact deposed to by him. It is evident that the
discovery must be of some fact which the police had not previously
learnt from other sources and that the knowledge of the fact was first
derived from information given by the accused. If the police had no
information before of the complicity of Accused 3 with the crime and
had no idea as to whether the diamonds would be found with him and
the Appellant had made a statement to the police that he knew where
the diamonds were and would lead them to the person who had them,
it can be said that the discovery of the diamonds with the third accused
169

was a fact deposed to by the Appellant and admissible in evidence


under Section 27. However, if it be shown that the police already knew
that Accused 3 had got the diamonds but did not know where the said
accused was to be found, it cannot be said that the information given
by the Appellant that Accused 3 had the diamonds and could be
pointed out in a large crowd at the waiting hall led to the discovery of a
fact proving his complicity with any crime within the meaning of
Section 27. The fact deposed to by him would at best lead to the
discovery of the whereabouts of Accused 3.
5. Under Section 25 of the Evidence Act no confession made by an
accused to a police officer can be admitted in evidence against him. An
exception to this is however provided by Section 26 which makes a
confessional statement made before a Magistrate admissible in
evidence against an accused notwithstanding the fact that he was in
the custody of the police when he made the incriminating statement.
Section 27 is a proviso to Section 26 and makes admissible so much
of the statement of the accused which leads to the discovery of a fact
deposed to by him and connected with the crime, irrespective of the
question whether it is confessional or otherwise. The essential
ingredient of the section is that the information given by the accused
must lead to the discovery of the fact which is the direct outcome of
such information. Secondly, only such portion of the information given
as is distinctly connected with the said recovery is admissible against
the accused. Thirdly, the discovery of the fact must relate to the
commission of some offence. The embargo on statements of the
accused before the police will not apply if all the above conditions are
fulfilled. If an accused charged with a theft of articles or receiving
stolen articles, within the meaning of Section 411 Indian Penal Code
states to the police, "I will show you the articles at the place where I
have kept them" and the articles are actually found there, there can be
no doubt that the information given by him led to the discovery of a fact
i.e. keeping of the articles by the accused at the place mentioned. The
discovery of the fact deposed to in such a case is not the discovery of
the articles but the discovery of the fact that the articles were kept by
the accused at a particular place. In principle there is no difference
between the above statement and that made by the Appellant in this
case which in effect is that "I will show you the person to whom I have
given the diamonds exceeding 200 in number". The only difference
between the two statements is that a "named person" is substituted for
"the place" where the article is kept. In neither case are the articles or
the diamonds the fact discovered.
Recoveries:
170

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
171

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;-

On the basis of the above referred confessions read with the


depositions of independent witnesses and recoveries thereof of
arms and ammunitions Prosecution has proved it beyond
reasonable doubt that,

1. Accused Abu Salem was one of the main conspirators (one of


the Archers) of the main conspiracy.

2. Accused Abu Salem was very close to co-accused Anis


Ibrahim and co-accused Mustafa Dossa and he was acting in
consonance with the objective of the conspiracy hatched by
them.

3. He was actively participating in the offence of conspiracy to


achieve its object.

4. He was knowingly facilitating the transportation and supply of


arms and ammunitions for intended terrorist activities.

5. Accused Abu Salem along with his companions had been to


the Hotel Maharaja near Bharuch, where he exchanged his
Maruti car with the white Maruti van bearing Gujarat
Registration brought by co-accused Riyaz Siddiqui, which
had secret cavities.
172

6. Accused Abu Salem then went ahead with his one companion
and a man with the muffler (Kapadia) to Sansrod.

7. Accused Abu Salem had been to godown of Usman Gani


Lakha at Sansrod near Bharuch in Gujarat and had loaded the
Maruti Van having Gujarat registration with 9-AK-56 rifles, 80-
90 handgrenedes, magazines of AK-56 rifles and its
ammunition in the secret cavities in the said van.

8. Accused Abu Salem then with the help of his co-accused,


tried to acquire one safe garage with shutter for keeping the
arms and ammunitions.

9. Accused Abu Salem then with the, delivered three AK-56


rifles, its magazines, ammunition and handgrenedes to
accused Sanjay Dutt.

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.

12. Accused Abu Salem then thereafter again went to the


house of Sanjay Dutt and brought back two AK-56 rifles and
some handgrenades for delivering them to some other co-
accused.

13. Accused Abu Salem then kept those arms and


ammunitions with co-accused Ibrahim Baba Musa Chauhan,
co-accused Sanjay Dutt.

14. Accused Abu Salem then directed Baba Musa Chauhan


to deliver two AK-56 rifles, 6 Magazines and ammunition to
Salim Kurla for using the same in the riots at Beheram Pada.

15. Accused Abu Salem then kept remaining arms and


ammunitions with Baba Musa Chauhan and other men of his
confidence.
173

Thus it can be safely concluded that,

A. Accused Abu Salem Abdul Qayoom Ansari working in close


proximity with the main conspirators (Archers) i.e. Anis
Ibrahim Kaskar (Abs) & Mustafa Ahmed Dossa (accused
before the Court) worked zealously towards achievement of
the objective of the conspiracy therefore placing him a rung
well up in the category of the Archers.

B. Accused Abu Salem Abdul Qayoom Ansari, given his close


proximity and endearment to the main conspirators Anis
Ibrahim Kaskar (absconding accused) and Mustafa Ahmed
Umar Dossa (accused now before the Court); took upon
himself to bring some part of the arms and ammunition that
were smuggled into India through the landing on Dighi Jetty
on 09.01.1993 by his co-accused Mustafa Dossa, co-accused
Feroz Abdul Rashid Khan and others. Since the weapons from
that landing had been discreetly transported to and concealed
in various places, further discretion was required to be
exercised in order to bring the weapons into the city of
Bombay that was already engulfed in unrest, violence and
was being only further defiled of her peaceful subsistence. In
this scenario accused Abu Salem took it upon himself to
perform this crucial task that was vital towards the
achievement of the heinous conspiracy so that the weapons
could be used to terrorise and torment the innocent citizens
of India and to shake the very foundation of the democracy by
waging a war by hitting at the very sovereignty of our nation
i.e. by hitting out against the Government of India and aiming
to annihilate the people of India.

C. Accused Abu Salem Abdul Qayoom Ansari wilfully,


consciously and deliberately distributed weapons amongst
co-accused Sanjay Dutt, co-accused Ibrahim Baba Musa
Chauhan, co-accused Manzoor Ahmed Sayyed Ahmed in
174

order to spread terror amongst the Indian populace and wage


a war against the Government of India in keeping with the
conspiratorial design.

D. Accused Abu Salem Abdul Qayoom Ansari further wilfully,


consciously and deliberately concealed the weapons with the
help of co-accused Manzoor Ahmed Sayyed Ahmed at the
residence of co-accused Zaibunissa Anwar Qazi in
furtherance of the conspiracy.

E. After the successful smuggling of the weapons at Dighi Jetty


on 09.01.1993, successful transportation, distribution and
concealment of arms and ammunition by his co-accused; and
a re-affirming of the same on successful obtainment of part of
that consignment from his co-accused (i.e. at Panvel);
absconding accused Tiger Memon followed in the very same
footsteps and then spear-headed two landings of arms,
ammunitions and RDX at Shekhadi.

F. Tiger Memon gave the weapon training to some of the


accused wherein he used the weapons which were sent by
Mustafa Dossa that were landed at Dighi Jetty.

G. On 12.03.1993, Serial Bomb Explosions in Bombay were done


at their instance in which 257 innocent persons were killed,
713 were grievously injured and properties worth about 27
crores was destructed.

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.

After coming to the above conclusion, it can be safely said that


Prosecution has proved it beyond reasonable doubt that,
175

Accused Abu Salem Abdul Qayoom Ansari (A-139) has committed


an offence under Section 3(3) of TADA (P) Act, 1987 and Section
120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4),
5 and 6 of TADA (P) Act,1987 and read with Sections
302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code
and offences under 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 Section 121 of the Indian Penal Code,
1860 and is liable for the maximum punishment prescribed for that
offence under the law.

And is required to be dealt with in accordance with law.

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