# 15 S.C.R. 621 ESSA@ ANJUM ABDUL RAZAK MEMON v. THE STATE OF MAHARASHTRA, THROUGH STF, CBI MUMBAI PART-II

- **Citation:** [2013] 15 S.C.R. 621
- **Court:** Supreme Court of India
- **Decided:** 2013-03-21
- **Case number:** CRIMINAL APPEAL NOs. 1178 of 2007
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-s-c-r-621-essa-anjum-abdul-razak-memon-v-the-state-of-maharashtra-through-29231
- **Pages:** 442

## Headnote

TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
SS. 3(3) of TADA ands. 120-B /PC rlw SS. 3(2)(i), 3(3),3(4),
c
· 5 and 6 of TADA - Serial bomb blasts in Bombay in March,
1993 -
Conviction and sentence .of life imprisonment by D
Designated Court - Held: The confessional statements of
accused and co-accused as also the evidence of approver
and other prosecution witnesses, the recoveries made and
other evidences, establish the guilt of all accused-appellants
- Their conviction as recorded by Designated Court, is E
confirmed - Except appellants-accused A- 15, A-136 and A71 sentence of imprisonment for life awarded to all other
accused-appellants is confirmed -
Appellant-accused A-15
is suffering froin AIDS/HIV+, though sentence of life
· imprisonment is appropriate, however, since he has remained F
· in jail for 14 years, sentence o; period already undergone
would be sufficient.- Appellant-accused A-136 wasrightly not
found guilty of the common charge of conspiracy under head
firstly by.Designated Court - However, his sentence of 10
years RI for conviction. of charges at heads secondly and G
thirdly is confirmed~ Penal Code, 1860 - ss. 120"8, 302,
307, 326, 324, 427, 435, 436, 201 and 212-Arms Act,1959
- ss. 3, 7 rlw 25 (1-A), (1-B) (a) -
Explosive Substances Act,
1908 ss. 3, 4(a), 4(b), 5 and 6 - Explosives Act, 1884 - ss.
621
H
622
SUPREME COURT REPORTS
[2013) 15 S.C.R.
A
98 (1) (a), (b) and (c) -
Prevention of Damage to Public
Property Act, 1984 -
s. 4.
ss. 5 and 6 - Unlawful possession of huge quantity of
contraband arms and explosives in Notified area -
Presumption -
Held: Since the presumption as to accusedB
appellant (A-71) himself being in possession of arms and
explosives for commission of terrorist activity, has not been
rebutted, Designated Court rightly found him guilty u/s 5 -
Further being in possession of such contraband arms and
explosives, provisions of Arms Act and Explosives Act have
C
been contravened, making the appellant-accused liable u/s
6 of TADA and ss. 3 and 7 r/w s. 25(1-A) and (1-B) of Arms
Act - However, there is no material to show that the recovered
contraband arms and explosives were used in the crime by
accused-appellant - Further, as prosecution failed to connect
D
the recovered contraband arms and explosives with the
conspiracy for which charge was framed under head 'Firstly',
accused-appellant was rightly not held liable for commission
of the said offence -
In the circumstances, taking into
consideration the age and ailment of accused-appellant, while
E
confirming the conviction, sentence of life imprisonment is
reduced to 10 years RI .
F
G
H
EVIDENCE:
Discrepancies in narrations of witnesses - Held: Unless
the contradictions are of a material dimension, the same
should not be used to disbelieve the evidence in its entirety
- In the instant case, the contradictions pointed out on behalf
of the appellant are minor contradictions and do not render
the evidence unbelievable.
Evidence of hostile witness - Held: Can be retied upon.
IDENTIFICATION:
Test identification parade - Held: The evidence with
regard to TIP can only be used as a corroborative piece of
evidence and is a test to strengthen trustworthiness of the
ESSA@ANJUMABDUL RAZAK MEMON v. STATE OF
623
MAHARASHTRA, THR. STF, CBI MUMBAI
substantive evidence of the witness before court -
In the
A
instant case, all the witnesses have identified the appellant
before court, SEM on this aspect withstood his cross
examination and TIP was validly conducted and all necessary
precautions were ensured by SEM.
INTERPRETATION OF STATUTES:
B
Provisions in statutes to provide overriding effect -
Provisions of JJ Act and TADA -
Held: The principle that
the latter Act would prevail over the earlier Act has consistently
been held to be subject to the exception that a general C
provision does not derogate from a special one -
Where the
literal meaning of the general enactment covers a situation
for which specific provision is made by another enactm

## Text

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[2013) 15 S.C.R. 621
ESSA@ ANJUM ABDUL RAZAK MEMON
A
vs.
THE STATE OF MAHARASHTRA, THROUGH STF, CBI
MUMBAI
PART-II
(Appeals relating to life sentence)
B
CRIMINAL APPEAL NOs. 1178 of 2007 etc.
MARCH 21, 2013
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
SS. 3(3) of TADA ands. 120-B /PC rlw SS. 3(2)(i), 3(3),3(4),
c
· 5 and 6 of TADA - Serial bomb blasts in Bombay in March,
1993 -
Conviction and sentence .of life imprisonment by D
Designated Court - Held: The confessional statements of
accused and co-accused as also the evidence of approver
and other prosecution witnesses, the recoveries made and
other evidences, establish the guilt of all accused-appellants
- Their conviction as recorded by Designated Court, is E
confirmed - Except appellants-accused A- 15, A-136 and A71 sentence of imprisonment for life awarded to all other
accused-appellants is confirmed -
Appellant-accused A-15
is suffering froin AIDS/HIV+, though sentence of life
· imprisonment is appropriate, however, since he has remained F
· in jail for 14 years, sentence o; period already undergone
would be sufficient.- Appellant-accused A-136 wasrightly not
found guilty of the common charge of conspiracy under head
firstly by.Designated Court - However, his sentence of 10
years RI for conviction. of charges at heads secondly and G
thirdly is confirmed~ Penal Code, 1860 - ss. 120"8, 302,
307, 326, 324, 427, 435, 436, 201 and 212-Arms Act,1959
- ss. 3, 7 rlw 25 (1-A), (1-B) (a) -
Explosive Substances Act,
1908 ss. 3, 4(a), 4(b), 5 and 6 - Explosives Act, 1884 - ss.
621
H
622
SUPREME COURT REPORTS
[2013) 15 S.C.R.
A
98 (1) (a), (b) and (c) -
Prevention of Damage to Public
Property Act, 1984 -
s. 4.
ss. 5 and 6 - Unlawful possession of huge quantity of
contraband arms and explosives in Notified area -
Presumption -
Held: Since the presumption as to accusedB
appellant (A-71) himself being in possession of arms and
explosives for commission of terrorist activity, has not been
rebutted, Designated Court rightly found him guilty u/s 5 -
Further being in possession of such contraband arms and
explosives, provisions of Arms Act and Explosives Act have
C
been contravened, making the appellant-accused liable u/s
6 of TADA and ss. 3 and 7 r/w s. 25(1-A) and (1-B) of Arms
Act - However, there is no material to show that the recovered
contraband arms and explosives were used in the crime by
accused-appellant - Further, as prosecution failed to connect
D
the recovered contraband arms and explosives with the
conspiracy for which charge was framed under head 'Firstly',
accused-appellant was rightly not held liable for commission
of the said offence -
In the circumstances, taking into
consideration the age and ailment of accused-appellant, while
E
confirming the conviction, sentence of life imprisonment is
reduced to 10 years RI .
F
G
H
EVIDENCE:
Discrepancies in narrations of witnesses - Held: Unless
the contradictions are of a material dimension, the same
should not be used to disbelieve the evidence in its entirety
- In the instant case, the contradictions pointed out on behalf
of the appellant are minor contradictions and do not render
the evidence unbelievable.
Evidence of hostile witness - Held: Can be retied upon.
IDENTIFICATION:
Test identification parade - Held: The evidence with
regard to TIP can only be used as a corroborative piece of
evidence and is a test to strengthen trustworthiness of the
ESSA@ANJUMABDUL RAZAK MEMON v. STATE OF
623
MAHARASHTRA, THR. STF, CBI MUMBAI
substantive evidence of the witness before court -
In the
A
instant case, all the witnesses have identified the appellant
before court, SEM on this aspect withstood his cross
examination and TIP was validly conducted and all necessary
precautions were ensured by SEM.
INTERPRETATION OF STATUTES:
B
Provisions in statutes to provide overriding effect -
Provisions of JJ Act and TADA -
Held: The principle that
the latter Act would prevail over the earlier Act has consistently
been held to be subject to the exception that a general C
provision does not derogate from a special one -
Where the
literal meaning of the general enactment covers a situation
for which specific provision is made by another enactment
contained in the earlier Act, it would be presumed that the
situation was intended to continue to be dealt with by the
specific provision rather than the later general one - Maxims:
D
(i) leges posteriores priores conterarias abrogant (later laws
abrogate earlier contrary laws) and (ii) generalia specialibus
non derogant (a general provision does not .derogate from a
special one.).
Non-obstante clauses in two statutes - Provisions of JJ
E
Act and TADA -
Giving overriding effect to respective
enactments - Held: While passing a special Act, legislature
devotes its entire consideration to a peculiar subject -
Therefore, when a general Act is subsequently passed, it is
logical to presume that the legislature has not repealed or F
modified the -former special Act unless an inference may be
drawn from the language of the special Act itself -
TADA,
being a special Act, meant to curb the menace of terrorist and
disruptive activities will have effect notwithstanding the fact that
JJ Act is general and beneficial legislation -
On perusal of G
aims and objects of TADA, it is clear that the act is brought
into the statute books to deal with a special category of
persons, viz., Terrorists -
TADA, being an Act enacted for
special purposes, will have precedence over any other Act -
H
624
SUPREME COURT REPORTS
[2013) 15 S.C.R.
A Besides, there is no justification whatsoever to restrict the
meaning of 'any person' and 'whoever' only to a major or nonjuvenile, as such an interpretation would have a potentiality
to defeat the object of TADA -
Thus, it cannot be said that
the JJ Act would have an over-riding effect on TADA which
s was not in existence on the date of commencement of the
provisions of JJ Act -
Terrorist and Disruptive Activities
(Prevention) Act, 1987 -
Juvenile Justice (Care and·
Protection of Children) Act, 2000.
Exception and non-obstante clause - Held: When JJ Act
C itself provides for an exception under whici1 even bail may not
be granted, it cannot be said that JJ Act would over-ride the
provisions of TADA in all circumstances without any
exception; and in case the legislature itself has carved out an
exception not to grant relief to a juvenile under the JJ Act, it
D cannot .be held that it would prevail over TADA under all
possible circumstances.
Purposive construction/harmonious construction - Held
-
Where there is inconsistency between the provisions of two
statutes and both can be regarded as special in nature, the
E conflict has to be resolved by reference to the purpose and
policy underlying the two enactments and intendment of
legislature conveyed by the language of relevant provisions
therein -
It would not be permissible for the court to construe
the provisions in such a manner which would destroy the very
F purpose for which the same was enacted -
It is the duty of
the court to adopt a harmonious construction by which both
the provisions remain operative.
JUVENILE
JUSTICE
(CARE
AND
PROTECTIONOFCHILDREN) ACT, 2000:
G
Bombay bomb blasts case - Accused convicted under
TADA - Sentenced to imprisonment for life by Designated
Court - Plea of juvenility - Held: Facts of the case make it
clear that appellant from his conduct cannot by any stretch
of imagination qualify as a child in need of care and
H protection, as the acts committed by him are so grave and
ESSA@ANJUMABDUL RAZAK MEMON v. STATE OF
625
MAHARASHTRA, THR. STF, CBI MUMBAI
heinous warranting the maximum penalty but Designated A
Court after considering all factors awarded him lesser
punishment when the co-accused who accompanied him to
· targeted place and committed similar acts were awarded with
the "!aximum punishment for heinous acts committed by
them - Further, despite being fully aware of conspiracy, s
appellant proceeded to act by receiving training in handling
arms and explosives, preparation of vehicle bombs and even
throwing hand grenades in a populated place, thereby,
furthering the object of such a heinous conspiracy -
Therefore, conviction and sentence of life imprisonment c
awarded by Designated Court is confirmed -
Terrorist and
Disruptive Activities (Prevention) Act, 1987.
'
WORDS AND PHRASES:
Expression, 'ends of justice' - Connotation of - Held:
While ·dealing with an issue, court must not lose sight ·of the D
fact that meaning of "ends of justice" essentially refers to
justice to all parties· -
This phrase refers to the best interest
of public within the four corners of the statute -
It means
preservation of proper balance between Constitutional!
statutory rights of an individual and rights of people at large E
to have the law enforced -Constitution of India, 1950 - Arts.
139A (2) and 142 - Code of Criminal Procedure, 1973 - s.
482 - Code of Civil Procedure, 1908 - s. 151.
Expression, 'the Jaw for the time being in force' -
Connotation of -
Held: The phrase has been interpreted to
F
include the law in existence on the date of commencement
of the. Act having over-riding effect and the law which may be
enacted in future during the life of the Act having over-riding
effect -
Thus, it cannot be said that the JJ Act would have
an over-riding effect on TADA which was not in existence on G
the date of commencement of the provisions of s. 1(4) of JJ
Act -
Terrorist and Disruptive Activities (Prevention) Act,
1987 -
·Juvenile Justice (Care and Protection of Children)
Act, 2000.
All the appellants in the instant appeals were accused H
626
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A
of the serial bomb blasts which took place at 12 different
places in Bombay on 12.3.1993. A common charge of
conspiracy was framed against all the co-conspirators,
including the appellants, for offences punishable ulss 3(3)
of Terrorist and Disruptive Activities (Prevention) Act,
B
1987 (TADA), s. 120-B IPC rlw SS. 3(2)(i), 3(3),3(4), 5 and 6
of TADA, SS. 302, 307, 326, 324, 427, 435, 436, 201 and
212 IPC, ss. 3 and 7 rlw ss. 25(1-A), (1-B) (a) of Arms Act,
ss. 9B (1) (a),(b) and (c) of Explosives Act, ss. 3, 4(a), (b),
5 and 6 of Explosive Substances Act and s. 4 of
C
Prevention of Damage to Public Property Act, 1984 (under
the head 'Firstly'). Besides, each of the appellants was
further charged with the various covert and overt acts
committed by them in furtherance of the said conspiracy.
The evidence against the appellants was in the form of
0
(i) their own confessions (except a few who did not make
any confession); (ii) confessions made by other coconspirators (co-accused); (iii) testimony of prosecution
witnesses;· and (iv) evidence of memorandumldiscovery.
The Designated Court convicted the appellants of the
charges found proved against them and sentenced them
E
to rigorous imprisonment for life and other terms of
imprisonment except A-136, who was not found guilty of
the common charge of conspiracy under head firstly.
However, he was found guilty of charges at heads
secondly and thirdly and was awarded 10 years RI each
F
for two counts, by the Designated Court. The convicts
filed the appeals. The State Government also filed
appeals against some of the accused against whom
charges were partly not found proved by the Designated
Court.
G
H
Disposing of the appeals, the Court
HELD:
Crl. A. Nos. 1178, 1179 and 1181 of 2007 (A· 3, A-8 and A11.;.
1.1. The involvement of the appellants-accused A-3,
ESSA@ANJUMABDULRAZAKMEMON v. STATE OF
627
MAHARASHTRA, THR. STF, CBI MUMBAI
A-8 and A-4 and their role in the conspiracy has been A
disclosed in the confessional statements of the coaccused A-11, A~46 and A-64, by the deposition of various
prosecution witnesses including the approver (PW2), PW
312, PW 87, PW 245, PW 229, PW 415, PW 46, PW 317,
PW 444, PW 370, PW 662, the recovery of a Maruti van
B
belonging to A-8, recoveries made, including of ROX
traces from Flat Nos. 22, 25 and 26 at Al-Hussaini
Building, and from the garages and compound of AlHussaini building. Althouth PW 87 was declared a hostile
witness, his evidence can be relied on. [para 5 -18) [660- c
C, D, G, H; 661-B, F; 662-B, 663-C; 664-C-D; 665-E; 666B, D, H; 667-D, F; 668-C; 671-C]
Sat Paul vs. Delhi Administration 1976 (2) SCR 11 = AIR
1976 SC 294 - relied upon.
1.2. The recoveries made established that the D
members of the family of AA2, including A-3, A-4 and A8, used to reside together in Flat Nos. 22, 25 and 26 at
Al-Hussaini building and were present when several
conspiratorial meetings took place in the said flats to
cause multiple explosions in Bombay. It is, therefore, clear E
that A-3, A-4 and A-8 knew about the conspiracy and
facilitated the commission of acts pursuant to the said
conspiracy. [para 19 and 33) [673-D, E-F; 680-H]
-1.3. Tbe evidence on record establishes that A-8 was
aware that the Maruti van owned by her and driven by AF
3, was being used for terrorist acts by AA-2 and his
associates. It is further established that Flat Nos. 22, 25
and 26 at Al-Hussaini building, where members of the
family of AA2 resided jointly, was the nucleus of the
criminal conspiracy as they were the locations where AAG
2 and A-1 met with several other co-accused persons
during the period of the conspiracy. Further, the arms
and explosives smuggled into India for the purpose of the
conspiracy were also kept at the said building and lastly
ROX was filled in the vehicles in and outside the garages H
628
SUPREME COURT REPORTS
(2013] 15 S.C.R.
A
allocated to the members of the family of AA-2 at AlHussaini building which were usedfplanted as bombs at
various places on 12.03.1993 by all the conspirators.
[para 31] [680-A-C]
1.4. The defence of A-8 that she was at Dubai since
B
August, 1992 and as such she could not be held liable
for user of her van in the commission of the crime was
rightly rejected by the Designated Court. Such a user
could not have been made without her permission or her
connivance. Since A-8 has failed to give any explanation,
C she cannot escape the liability accruing due to van
standing in her name being used for such a nefarious
activity. [para 15] [669-B, C, D-E]
1.5. At the time of arrest of the appellants at the
International Airport, New Delhi, Pakistani passports and
D Pakistani identity cards with their photographs but with
fake names were recovered from them. It is, therefore,
clearly proved that the appellants had relocated to Dubai
from Bombay just prior to the blasts on 12.03.1993 and,
thereafter to Pakistan where they acquired properties,
E started business, acquired fictitious qualification
certificates, driving licences, etc, all of which established
that they had chosen a comfortable life in Pakistan and
were determined not to return to India in their original
identity. These facts clearly establish that the appellants
F
were connected with the Bombay Bomb Blasts. [para 2021, 24 and 36] [674-E, F, G; 675-F-G; 681-F-G]
1.6. The conduct of the appellants after the blasts
further establishes that they did not intend to co-operate
with the investigation authorities in India. The appellants
G and all other family members of AA-2 were declared
Proclaimed Offenders by the Designated Court. Despite
that, they did not surrender. This conduct also
establishes their culpability. [para 25 and 37] [675-G-H;
681-H; 682-A, D]
H
ESSA@ANJUM ABDUL RAZAK MEMON v. STATE OF
629
MAHARASHTRA, THR. STF, CBI MUMBAI
1.7. The evidence on record establishes that the A
appellants.facilitated theicommission of terrorist acts as
defined in s.3(1) of TADA by conniving with AA-2 and his
associates_ and permitting them to use their flats and
vehicles for the purposes of criminal conspiracy. The
actions of. the appellants -squarely fall within s.3(3) of B
TADA -insofar as the appellants have facilitated and
abetted the conduct of terrorist acts by AA-2 and his
associates. Their conduct of living together after fleeing
from Bombay and not informing about these blasts to any
of the. authorities concerned at Indian Embassy c
establishes thaMhey were also involved .in the conspiracy
to commit the bomb blasts. [para 34-35] [681-8-E]
1.8. In view of the materials placed on record by the
prosecution and the ultimate analysis of the Designated
Court, this Court affirms the conviction and sentence of o
RI for life imposed upon the appellants. [para 38] [682-FG]
-
Crl. A. No._ 419-of 2011 (by State):
1.9. The appeal against acquittal of A-2, A-6 and A-7
has not been pressed. As regards acquittal of appellantE
accused A-8 of a part of the charge stated against her in
clause (a) and the charge stated in clause (b) at head
secondly;after careful examination of alt the materials
placed, this Court is of the view that in the absen-ce of any
positive evidence, A-8 1canncit be convicted for the acts
F
done and mentioned as part of charge at head secondly
and the Designated Court has rightly acquitted her of the
same. [para 29] [678-C~E]
Crl. A. Nos. 1127-1128 of 2007(A-54):
G
2. From the materials and evidence relied on by the
prosecution, Le., confessional statements of co-accused
A-13, A-23, A-29, A-32, A-44, A-49, A-98 and A-100,
depositions of PW2 (approver),_ PW 105, PW 106
(recoveries ma·d~) (PW587 and PW 103) and other H
630
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A
materials, it is established that the appellant participated
in various stages of the conspiracy from planning till
execution. He was also present during the filling of ROX
in the vehicles which were planted at various locations
resulting in the death of hundreds of people and injuries
B
to many. The crimes committed by the accused persons
including the appellant (A-54) have shocked the
conscience of the society. The blasts on 12.03.1993 have
caused massive loss to life and property and were
carried out in an organized and systematic manner in
C which appellant (A-54) has played an active role.
Therefore, this Court is of the view that the conviction
and sentence of RI for life imposed by the Designated
Court to the appellant (A-54) is sustainable and justified.
[para 45, 46 51-52] [690-E; 692-A; 693-C; 694-C; 695-A-E;
D 697-C-F]
Crl. A. Nos. 1252-1253 of 2007(A-71l: and Crl. A. No. 413
of 2011 (by State):
3.1. While considering the common charge, namely,
conspiracy, the Designated Court has recorded a finding
E
that there is no evidence on record to establish that the
recovered contraband arms and ammunition and
explosives was smuggled by AA-2 and his associates. It
also recorded that the evidence brought in has failed to
establish precisely the period for which A-71 was in
F
possession of the said contraband material and further,
there is nothing on record to suggest for what purpose
the appellant was in possession of such a huge quantity
of contraband. [para 65] [709-H; 710-A-B]
3.2. However, as rightly concluded by the Designated
G Court, the evidence, in clear terms, reveals that A-71 was
in possession of huge quantity of contraband material
within the notified area of Greater Bombay attracting the
provisions of s. 5 of TADA and failed to rebut the
presumption arising out of such unlawful possession.
H The said presumption has been explained by a
ESSA@ANJUMABDULRAZAKMEMON v. STATE OF
631
MAHARASHTRA, THR. STF, CBI MUMBAI
Constitution Bench of this Court in the case of Sanjay
A
Dutt as the presumption of having himself possessed the
same for commission of terrorist activity. In view of the
same, the Designated Court has rightly held A-71 guilty
of commission of offence u/s 5 of TADA. [para 68] [710H; 711-A-C]
B
Sanjay Dutt vs. State thr. CBI, Bombay 1994 (3) Suppl.
SCR 263 = (1994) 5 sec 410 - relied on
3.3. Considering the large quantity of contraband
materials in the possession of A-71, the period in which
C
he was found to be in possession of the same and all the
other relevant circumstances, it leads to the conclusion
that A-71 himself being in possession of the same and
in the said process having contravened the provisions
of the Arms Act, 1959, the Explosives Act, 1884 etc.
thereby having made himself liable for commission of D
offences u/s 6 of TADA and also u/ss 3 and 7 read with
s. 25 (1-A) and (1-8) (a) of the Arms Act, 1959. [para 69]
[711-C-E]
3.4. Upon a conjoint reading of the entire evidence,
it is clearly established that the appellant was fully
conscious and aware of the ultimate use of the smuggled
arms and ammunitions and explosives. Thus, the
charges framed at head thirdly and fourthly against the
accused stood established. [para 70] [711-E-F]
3.5. The prosecution has failed to establish that the
relevant materials, viz., contraband was part of the
material smuggled into India by AA-2 and AA-1for
commission of terrorist acts or the same was given to AE
F
71 by AA-2 or any other co-conspirator; and in the
G
absence of further acceptable material in order to prove
the nexus of A-71 with the conspiracy for which the
charge was framed at head firstly, A-71 cannot be held
liable for commission of the said offence. [para 71] [712A-B]
H
632
SUPREME COURT REPORTS
(2013] 15 S.C.R.
A
3.6. It is relevant to note that even according to the
prosecution, the recovery was from a place open and
accessible to all the persons visiting the Musafirkhana for
any purpose including prayer or the persons staying
therein. It is also relevant to point out that the Designated
B Court has recorded a finding that the prosecution failed
to lead acceptable evidence to show that such recovered
contrabands were used in any crime by the appellant and
this Court agrees with the finding recorded by the
Designated Court. [Para 75] [715-C-E]
C
3.7. As per the proved charges u/ss 5 and 6 of TADA,
the minimum punishment prescribed is 5 years and
maximum is life sentence. Takitig note of the age,
ailments and conduct of the appellant as recorded by the
Designated Court, this Court feels that the appellant did
D not deserve the maximum sentence of life imprisonment.
The appellant is JTIOre than 70 years of age and is
suffering from a number of ailments. He has no criminal
antecedent and there is no adverse report with respect
to him during the trial. It is also pointed out that the
E appellant has already undergone a period of 8% years
without remission. Taking note of all these aspects, this
Court feels that while confirming fhe conviction, ends of
justice would be met by reducing the sentence of the
appellant to RI for 10 years. [para 75] [715-E-H; 716-A]
F Crl. A. No. 1365 of 2007CA-15)
4.1. From a perusal of the confession of the
appellant-accused A-15, it emerges that he worked in
close association with the other co-accused persons
towards attainment of the objects behind the conspiracy
G and he also actively participated"in the landings and
transportation of arms and ammunitions and explosives.
It is also very much clear from his confession that he
parked a scooter laden with explosives and fitted with a
time pencil detonator in the Diamond Market. The role of
H appellant accused A-15 is furthe~ established from the
ESSA@ANJUM ABDUL RAZAK MEMON v. STATE OF
633
MAHARASHTRA, THR. STF, CBI MUMBAI
confessional statements of co-accused A-9, A-12, A-14, A
A-28, A-29, A-44, A-46, A-57, A-61, A-64, A-73 and A-96. The
involvement and the role of the appellant in the
conspiracy is also disclosed by the deposition of vari_ous
pros~cution witnesses. [para 83-86) [723-G-H; 724-A; 730H; 731-G]
B
4.2. The appellant's involvement in landing of arms
and explosives, his association with AA-2, participation
in planting scooter bomb have been fully established by
the prosecution. The conclusion arrived at by the
Designated Court is concurred with. [para 88) [735-G]
c
4.3. The fact that the appellant is suffering from AIDS/
HIV+ has not been disputed. Taking note of all these
aspects including the fact that he was in jail nearly for 14
years, while confirming the conviction and sentence, in
D
view of special circumstances, though the life sentence
is the appropriate sentence for the proved charges, it is
ordered that there is no need•to send him back to prison.
In the peculiar circumstance, it is made clear that the
period already undergone would be sufficient. .[para 89)
[736-C-D]
E
Crl. A. No. 1224 of 2007 (A-112):
5.1. At the relevant time, A-112 was posted. as
Additional Collector of Customs, Preventive, Mumbai. He
died during the pendency of appeal. He facilitated the
F
landing of arms and ammunition and explosives at the
instance of AA·2. The evidence on record established that
A-112 was fully aware of the. information that the weapons
of mass destruction may be smuggled to India along with
silver and gold; he kept vigil at a place which leaves room G
for the smugglers to escape from another route to
Bombay, under the guise of specific information; he failed
to produce any such specific information ever; he misled
the Department that he had specific information that AA-
'
2 was to come through a particular route in a particular H
•
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SUPREME COURT REPORTS
(2013) 15 S.C.R.
A
manner, while actually, there was no specific information
in this regard; the onus was on the accused to prove his
specific information for a particular course of conduct
undertaken by him; he also spread rumour of specific
information to mislead and misguide the Department so
B
as to help the smugglers; he mis-directed the Department
by distorting a specific message of landing to be
something happening at a different place about 45 km
away, particularly, when the said information came from
a senior officer of the Department; he did not do anything
c on specific information about landing; any timely action
on his part could have traced the smuggled goods, and
the said action could have prevented second landing that
took place subsequently. [para 93 and 121] [737-8; 754G-H; 755-A-H; 755-A-H; 756-A]
o
5.2. All the circumstances cumulatively establish the
charges framed against A-112 at the trial. The said
circumstances leave no room for any alternative
hypothesis. This Court is also satisfied that pursuant to
the conspiracy with AA-2 and his other co-conspirators,
E
A-112 misused his official position in order to knowingly
facilitate the terrorist act. [para 122] [756-8-C]
5.3. The prosecution has established the guilt against
the appellant and the Designated Court has rightly
convicted and sentenced him. Since he died during the
F
pendency of the appeal, there cannot be any direction
except confirming the decision of the Designated Court
and clarifying tlie position. [para 123] [756-D]
G
H
Crl. A. No. 1440 of 2007 (A-25) and Crl. A. No. 1028 of 2012
(by State):
6.1. Taking note of the materials on record, the
Designated Court, after analyzing the same, came to the
conclusion that the confession of A-25 clearly reveals his
involvement in landing of arms and explosives at the
stated place and its transportation. The corroborative
ESSA@ANJUM ABDUL RAZAK MEMON v. STATE OF
635
MAHARASHTRA, THR STF, CBI MUMBAI
material contained in the confession of A-25 i.e. his A
involvement in landing arms and explosives at the stated
place and its transportation and his being in possession
of contraband material, for which he was charged with,
has also been proved in the confessions of A-14, A-42 and
A-61. Besides, the involvement and the role of the B
appellant in the conspiracy, is disclosed by the
deposition of various prosecution witnesses, including
PW-45 and PW-596. Considering the role played by him
i.e., he was possessing such a large number of arms and
ammunitions and was holding the same for a c
considerable period,. the same also denotes that he was
a man of close confidence of prime accused persons. The
Designated Court also rightly concluded that the act
committed by him was for furthering the object of
conspiracy and he himself having committed the same 0
is guilty of the offence of conspiracy to commit terrorist
acts punishable u/s 3(3) of TADA. [para 138, 140, 145]
[768-B; 771-D, E, F, G]
6.2. In view of the evidence on record, this Court
holds that the appellant was actively involved in the E
conspiracy to cause blasts in Bombay and in
consequence of the said involvement, he has committed
the offences. Therefore, the appellant is guilty of the
offences charged from head firstly to fourthly. [para 146147] [771-H; 772-A, CJ
F
6.3. From the materials, it is clear that the appellant
neither dissociated himself nor resisted from
participating in the landings or transportation of
contraband material nor did he inform the same to the
police authorities or took any steps for the same. This is G
sufficient to show that he was responsible for the blasts
in Bombay and he was very well aware of its
consequences. Therefore, this Court is of the view that
the sentence of RI for life awarded by the Designated
H
636
SUPREME COURT REPORTS
(2013] 15 S.C.R.
A
Court to the appellant is justified and the same is
confirmed. [para 150-151] [773-8, CJ
Crl. A. No. 1441 of 2007 IA-1161
7.1. At the time of commission of offence, the
8
appellant-accusedA-116 was posted as Sub-Inspector of
Police. The evidence on record establishes that A-116
arranged for the keys of Dighi Jetty to be given to 'S' (AA)
for the purposes of landing; a police party led by the
appellant intercepted two trucks, checked them, and after
C negotiating, let them off; the appellant was well
acquainted with the smugglers; he had secret
negotiations with the smugglers as well as consultation
with the Customs official (A-82) for fixing the special bribe
amount; he took silver bars as security in lieu of cash
and kept the same in the house of PW-94 who duly
D corroborated with the fact that he kept the bars in his
house; and the appellant paid to PW-156 for handing over
the keys of the Dighi Jetty to 'S' (AA) on 09.01.1993, the
day when arms and ammunitions landed at Dighi. It is
significant to note that sufficient evidence has been
E
placed on record by the prosecution to show that part of
the consignment which landed at Dighi was also
delivered to AA-2. [para 156 and 166] [776-G; 788-8-G]
7.2. The crime of the appellant may be considered in
the light of the fact that he was the protector of law and
F
he has breached the trust of the people of the country.
Had he honestly done his duty, perhaps the whole
disaster could have been obviated. The evidence
substantiates and establishes the charge of conspiracy
framed against the appellant (A-116). This Court agrees
G with the reasoning and ultimate conclusion of the
Designated Court both on the conviction and sentence.
This Court is of the view that the sentence of RI for life
awarded by the Designated Court to the appellant is
justified. [para 170-171] [170-G; 171-A-8]
H
ESSA@ANJUM ABDUL RAZAK MEMON v. STATE OF
MAHARASHTRA. THR. STF, CBI MUMBAI
Crl. A. No. 401 of 2008 (A-134 and A-136):
Appellant-accused A-134:
637
A
8.1. The'confession of appellant-accused A-134
al~ng with the confessions of A-133, A-30, A-81 and A-136
coupled with the~ deposition of prosecution witnesses B
establish the appellant's participation in the criminal
conspiracy and; more particu!arly, his participation in the
lan,ding of arms.and ammunitions at the stated places
and .helping in the transportation of the same. On his
arrest, one AK-56 rifle, two magazines and 88 cartridges C
were recover~d. [para 183-184] (807-A-C]
8.2. The Designated Court, while awarding the
sentence, duly considered all ~he factors. The conviction
and sentence of RI for life awarded to the appellant by
the Designated Court is confirmed. [para 186] [807-H; 808D
A]
.
.
Appellant-accused A-136:
8.3. The objection raised on behalf of the appellantaccused A-136 to his confession pointing out that the
officer who recorded the confession, was present at the E
time of arrest of the appellants and that the same was
recorded in spite of his advocate's information that the
appe}larit did not intend to confess, has no substance.
This Court has rejected the objection that the
Supervising Officer cannot be permitted to record
F
confession of an accused. [para 194] [815-F-H]
p
, S.N. Dub~ vs. NB. Bhoir & Ors. 2000 (1) SCR 200 =
(2000) 2 SCC. 254, Lal Singh vs. State of Gujarat & Anr. 2001
(1) SCR 111 = (2001) 3 SCC 221 and Mohd. Amin vs. CBI
2008 (16 ) SCR 155 = (2008) 15 SCC 49 - relied on
G
8.4. From the confession of A-136 himself, the
confessions of co-accused A-34, A-30, A-82, A-81,
depositions of other witnesses and other evidence on
record, it has been established that appellant-accused AH
638
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A
136 was given the important task of safe landing of arms
and explosives and its transportation to respective
destinations. He also negotiated with police officers for
release of the goods. [Para 200) [823-A, C-E]
8.5. This Court holds that the appellant has rightly
B
been convicted and sentenced by the Designated Court.
The Designated Court also heard the appellant on the
quantum of sentence. Taking note of all the materials and
proved charges mentioned at head secondly and thirdly,
the sentence of 10 years RI under each of the two counts
C awarded to A-136 by the Designated Court cannot be
said to be excessive, but is justifiable and acceptable.
[para 200 and 203) [823-E-F; 825-G-H; 826-A-B]
D
Crl. A. NO. 1023 of 2012 (by State):
8.6. After a careful examination of all the materials
placed, this Court is of the view that in the absence of any
positive evidence, A-136 cannot be convicted under the
charge mentioned at head firstly, i.e., conspiracy, and the
Designated Court has rightly acquitted him of the said
E
charge. [Para 201) [823-H; 824-A-B]
Crl. A. Nos. 976-977 of 2008 IA-64)
9.1. The confession of the appellant-accused A-64
has been corroborated by the confessional statements
of the co-accused A-12, A-13, A-15, A-16, A-29, A-32, A-36,
F
A-39, A-46, A-49, A-57, A-58, A-77, A-94, A-98 and A-100.
The involvement of the appellant in the conspiracy is
established in as much he actively participated in the
landing of arms and explosives smuggled for the
purpose of committing terrorist acts; he went to Pakistan
G and received training in arms and ammunitions and
explosives; he participated in the conspiratorial
meetings; at the behest of AA-2, he formed a group with
A-100; they were assigned the task of conducting survey
of Sahar airport and throwing hand grenades on aircrafts
H there; he actively participated in the filling of ROX in
ESSA@ANJUMABDULRAZAKMEMON v .. STATEOF
639
MAHARASHTRA, THR. STF, CBI MUMBAI
vehicles at Al-Hussaini Building compound on the A
intervening night of 11/12.03.1993; and after the blasts, he
fled from Bombay fearing his arrest. [para 213] [842-H;
843-A-H]
9.2. In view of the entire evidence on record, this
Court holds that the appellant was actively involved in the 8
conspiracy to cause blasts in Bombay and in
consequence of the said involvement, he has committed
the said offences for which he has been rightly charged;
and the sentence of RI for file awarded to the appellant
by the Designated Court is justified. [para 221] [851-E-F] C
Crl A. No. 6.16 of 2008(A-52l
10.1. The confession of the appellant-accused A-52
has been corroborated by the confessional statements of
co-accused A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-49, D
A-57, A-64, A-94, A-98 and A-100. After consideration of all
the confessional statements of the co-accused, the
involvement of the appellant in the conspiracy is
established in as much as he attended the conspiratorial
meeting at the residence of AA-2; he was present at AlE
Hussaini building in the night intervening 11/12.03.1993
and witnessed the filling of ROX in vehicles; on
12.03.1993, PW-2 distributed a bag full of hand grenades
amongst the co-accused persons in his presence; he
attended training in arms and ammunitions in Pakistan
F
with a fictitious name; he drove the co-accused persons
in a Maruti Van to Mahim Causeway where they lobbed
hand grenades at Fishermen's colony causing
explosions; and he was the Commander of his group.
[para 231] [870-A-F, G-H; 871-A]
10.2. Pursuant to the conspiracy, the appellant has
actively participated in various conspiratorial acts of
planning, training, preparation and execution. The
G
H
640
SUPREME COURT REPORTS
(2013] 15 S.C.R.
A
evidence on record clearly proved the charges against
the appellant beyond reasonable doubt. [para 246] [879H; 880-A]
10.3. Regarding sentence, this Court fully agree with
the conclusion arrived at by the Designated Court and
B there is no valid reason for interference. His conviction
and sentence of RI for life is confirmed. [para 247] [8808, C]
Crl. A. Nos. 979-980 of 2008(A-49l
C
11.1. The confession of the appellant-accused A-49
has been corroborated by the confessional statements
of the co-accused A-13, A-16, A-23, A-29, A-32, A-36, A-39,
A-52, A-64, A-94, A-98 and A-100. After consideration of
all the confessional statements of the co-accused and
0
other depositions, the involvement of the appellant in the
conspiracy is clearly established inasmuch as he went
to Pakistan and took training in arms and ammunitions
and explosives; he participated in the conspiratorial
meeting where plans for executing the blasts were
discussed; he actively participated in filling of explosives
E
in vehicles in the night intervening 11/12.03.1993; he went
along with A-23 from Al-Hussaini Building on a
motorcycle driven by A-23 to the Sahar Airport Flyover
Bridge and threw hand grenade towards the aircraft
thereby causing explosion and consequent damage.
F
[para 257 and 261] [894-D-E, F-H; 895-A; 905-E]
11.2. In the considered view of this Court, the
appellant was a coveted member of the conspiracy and
was indulged in the acts furthering the object of the
conspiracy. It is proved beyond doubt that the appellant
G was in the conspiracy until the final date of achievement
of the object of conspiracy. There is no valid ground for
interference with the conviction and the sentence of RI
for life awarded to the appellant by the Designated Court.
[para 263] [906-8-C]
H
ESSA@ANJUM ABDUL RAZAK MEMON v. STATE OF
MAHARASHTRA, THR. STF, CBI MUMBAI
Crl. A. No. 633 of 2008 (A-131
641
A
12.1. The involvement of appellant-accused A-13 in
the conspiracy is evident from his own confession.
Further, a perusal of the confessional statements of A-11,
A-12, A-23, A-32, A;36, A-39, A-64, A-52, A-57 and A-100,
and depositions of prosecution witnesses, namely, PW2 B
(approver), PW5, PW 6 and PW 13, clearly establish that
A-13 attended conspiratorial meetings; he received
training in handling arms and ammunitions and
explosives; he was present at Al-Hussaini building in the
night intervening 11/12.03.1993 and participated in filling C
of ROX in vehicles; he along with other co-accused
travelled in a Maruti Van to Fishermen's Colony atMahim
where they lobbed hand grenades; and that he was a
coveted member of the conspiracy and indulged in the
· acts furthering the object of the conspiracy. [para 269, D
273, 275 294] [912-A; 919-0, G; 920-E; 921-C; 922-A-B;
935-F-G] .
12.2. There are bound to be some discrepancies in
the narrations of different witnesses and unless the
contradictions are of a material dimension, the same E
should not be used to disbelieve the evidence in its
entirety. This Court is of the view that the contradictions
pointed out on behalf of the appellant are minor
contradictions and do not render the evidence
unbelievable. [para 279] [927-B-C]
F
State of Uttar Pradesh vs. Krishna Master, 2010 (9)
SCR 563 = (2010) 12 SCC 324; State of H.P. vs. Lekh Raj
1999 (4) Suppl. SCR 286 = (2000) 1 SCC 247; and Waman
vs. State of Maharashtra
2011 (6 ) SCR 1072 = (2011) 7
SCC 295- relied on.
G
12.3. The materials on record show that in the instant
case, the TIP was validly conducted and all necessary
precautions were ensured by the SEM. Further, the
evidence with regard to the TIP can only be used as a
H
642
SUPREME COURT REPORTS
[2013] 15 S.C.R.