# AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. STATE OF MAHARASHTRA

- **Citation:** [2013] 16 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2013-03-21
- **Case number:** Criminal Appeal. No. 1438 of 2007
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmed-shah-khan-durrani-a-s-mubarak-v-state-of-maharashtra-29004
- **Pages:** 243

## Headnote

Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.5 - Bombay serial blasts of 1993 - Possession of weapon
B
-
A-20 charged for keeping one AK-56 rifle and two C
magazines -
Conviction of A-20 - Justification - Held:
Justified - Sufficient material to show that recovery had been
made at the behest of A-20 from the factory owned by a
partnership to which he was the partner - In such a factsituation, he' ought to have explained the reason/source of his D
knowledge of such contraband articles being kept in his factory
-
.
- As he had not mentioned that he had seen someone
. keeping the articles there, or somebody had told him about
that, or he had seen the things lying there, the only reasonable
inference drawn is that he himself had kept the same at that E
place - Being a partner of the firm if he was having the
knowledge that some contraband were lying in his premises,
he ought to have informed the police if he had no guilty mind
-Explanation that at the time of recovery he did not have the
key, not enough to tilt the balance in his favour - As A-20 F
made a statement leading to the discovery of AK-56 assault
rifle and two magazines having kept in his workshop and the
same had been found concealed on the loft, he cannot
escape from the liability of possessing and concealing of the
same, thus liable to be punished u/s.5 TADA.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 5 -Bombay serial blasts of 1993 - Participation
in landing and transportation of smuggled arn:is, ammunition
and explosives ~-conviction of A-31 - Justification - Held:
G
1
H
2
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A Justified - Evidence on record made it clear that A-31 had
participated in landing operation of contraband goods at
Shekhadi as he was one of the persons who accompanied
Tiger Memon (AA) and others and he had also been to
Wangni Tower alongwith other associates and contraband
B material were loaded in tempo - The tempo was taken by him
alongwith absconding accused to Mumbra as instructed by
Tiger Memon (AA) - This version duly supported/corroborated
by A-128 and by the evidence of PW-2 - Arms Act, 1959.
C
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss.3(3) and 6 -Bombay serial blasts of 1993 - Facilitation
of commission of terrorist activities - Smuggling and landing
of arms, ammunition, hand grenades and explosives -
Conviction of A-30 - Challenged - Held: A-30 was aware that
the smuggled goods were arms and ammunition, and even
D after acquiring such knowledge, he had continued the landing
of said smuggled goods - He was thus liable for commission
of offences uls.3(3) and 6 TADA - Evidence on record made
it crystal clear that A-30 was not only a close associate of
Tiger Memon (AA) and acting as a landing agent, but a man
E of confidence who could negotiate with the police and customs
officials to fix the amount of bribe for facilitating the smuggling
and transportation of the smuggled contraband - A-30 had
been fully aware of the nature of contraband, and inspite of
coming to know that the contraband contained arms,
F ammunition and explosives, he continued to help the
smugglers - Further, A-30 had close association with A-82,
officer of the customs department, who had been helping the
smugglers by taking a bribe through A-30 - Therefore, A-30
also convicted for conspiracy - Penal Code, 1860 - s. 1208
G - Arms Act, 1959.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 6 - Bombay serial blasts of 1993 - Participation
in landing and transportation of contraband smuggled into the
H country by Tiger Memon (AA) - Abetting and participating in
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
3
STATE OF MAHARASHTRA
terrorist activities - Conviction of A-46 - Challenged - Held:
A
Confession of A-46 revealed that he was in employment of
the Memon family - It could not be accepted that A-46 was
not aware of illegal business of Tiger Memon (AA) or about
the nature of the contrabands smug

## Text

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[2013] 16 S.C.R .. 1
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK
A
V.
STATE OF MAHARASHTRA
(Criminal Appeal. No. 1438 of 2007)
MARCH 21, 2013
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.5 - Bombay serial blasts of 1993 - Possession of weapon
B
-
A-20 charged for keeping one AK-56 rifle and two C
magazines -
Conviction of A-20 - Justification - Held:
Justified - Sufficient material to show that recovery had been
made at the behest of A-20 from the factory owned by a
partnership to which he was the partner - In such a factsituation, he' ought to have explained the reason/source of his D
knowledge of such contraband articles being kept in his factory
-
.
- As he had not mentioned that he had seen someone
. keeping the articles there, or somebody had told him about
that, or he had seen the things lying there, the only reasonable
inference drawn is that he himself had kept the same at that E
place - Being a partner of the firm if he was having the
knowledge that some contraband were lying in his premises,
he ought to have informed the police if he had no guilty mind
-Explanation that at the time of recovery he did not have the
key, not enough to tilt the balance in his favour - As A-20 F
made a statement leading to the discovery of AK-56 assault
rifle and two magazines having kept in his workshop and the
same had been found concealed on the loft, he cannot
escape from the liability of possessing and concealing of the
same, thus liable to be punished u/s.5 TADA.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 5 -Bombay serial blasts of 1993 - Participation
in landing and transportation of smuggled arn:is, ammunition
and explosives ~-conviction of A-31 - Justification - Held:
G
1
H
2
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A Justified - Evidence on record made it clear that A-31 had
participated in landing operation of contraband goods at
Shekhadi as he was one of the persons who accompanied
Tiger Memon (AA) and others and he had also been to
Wangni Tower alongwith other associates and contraband
B material were loaded in tempo - The tempo was taken by him
alongwith absconding accused to Mumbra as instructed by
Tiger Memon (AA) - This version duly supported/corroborated
by A-128 and by the evidence of PW-2 - Arms Act, 1959.
C
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss.3(3) and 6 -Bombay serial blasts of 1993 - Facilitation
of commission of terrorist activities - Smuggling and landing
of arms, ammunition, hand grenades and explosives -
Conviction of A-30 - Challenged - Held: A-30 was aware that
the smuggled goods were arms and ammunition, and even
D after acquiring such knowledge, he had continued the landing
of said smuggled goods - He was thus liable for commission
of offences uls.3(3) and 6 TADA - Evidence on record made
it crystal clear that A-30 was not only a close associate of
Tiger Memon (AA) and acting as a landing agent, but a man
E of confidence who could negotiate with the police and customs
officials to fix the amount of bribe for facilitating the smuggling
and transportation of the smuggled contraband - A-30 had
been fully aware of the nature of contraband, and inspite of
coming to know that the contraband contained arms,
F ammunition and explosives, he continued to help the
smugglers - Further, A-30 had close association with A-82,
officer of the customs department, who had been helping the
smugglers by taking a bribe through A-30 - Therefore, A-30
also convicted for conspiracy - Penal Code, 1860 - s. 1208
G - Arms Act, 1959.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 6 - Bombay serial blasts of 1993 - Participation
in landing and transportation of contraband smuggled into the
H country by Tiger Memon (AA) - Abetting and participating in
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
3
STATE OF MAHARASHTRA
terrorist activities - Conviction of A-46 - Challenged - Held:
A
Confession of A-46 revealed that he was in employment of
the Memon family - It could not be accepted that A-46 was
not aware of illegal business of Tiger Memon (AA) or about
the nature of the contrabands smuggled into India - Presence
of A-46 at the place where the goods were exchanged, at B
Wangni Tower and concealed into cavities of vehicles for
transportation to Bombay, shows that he was a very close
confidant of Tiger Memon (AA) - A-46 handed over a motor
vehicle containing arms and ammunitions at residence of A68 -
Confessions of co-accused clearly established the c
involvement of A-46 along with A-10 for taking co-accused
persons, who were sent for training to Pakistan via Dubai,
though he may not be aware of the purpose for which the coaccused were sent to Dubai - Conviction of A-46 confirmed.
Terrorist and Disruptive Activities (Prevention) Act, 1987 D
- ss.3(3) and 6 - Bombay serial blasts of 1993 - Landing and
transportation of arms and ammunition for committing
terrorist activities - Possession/storage of arms, ammunition
and explosives - Conviction of A-73 ulss. 3(3) and 6 -
Justification - Held: Justified - A-73's involvement and E
participation in the landing operations of the contraband
substances was clearly established - His own confessional
statement revealed that he, being fully aware of the contents
of the contraband, shifted the same from the truck to other
vehicles and that inspite of the fact that he knew that the
F
contraband contained arms, ammunition and ROX, he
continued to be associated with the other co-accused -
Therefore, he aided and abetted terrorist activities - However,
the said acts were committed by him in the early phases of
the conspiracy, even prior to Tiger Memon (AA) deciding the
G
target of the Blast; and after this particular incident A-73 had
not been involved in any landing job -Therefore, A-73 cannot
be held guilty for the larger conspiracy.
Tefforist and Disruptive Activities (Prevention) Act, 1987
H
4
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A - s. 3(3) -
Bombay serial blasts of 1993 -
Landing &
transportation of smuggled arms, ammunition and explosives
- Conviction of A-62 - Held: A-62, watchman of government
premises i.e. Wangni Tower, had allowed the same to be used
for the purpose of facilitating the smuggling and landing of
B arms, ammunition, handgrenades and explosives as
organized by Tiger Memon (AA) and his associates - The
evidence further establishes his involvement in concealing 59
bags of ROX explosives in a field existing in his name -
Thus, he was rightly convicted uls.3(3) TADA and s.202 /PC
C - Being a government servant, he intentionally omitted giving
information to the authorities about the offences committed
in his presence, which he was legally bound to do - Penal
Code, 1860 - s. 202.
Terrorist and Disruptive Activities (Prevention) Act, 1987
D - s.3 - Bombay serial blasts of 1993 - Larger conspiracy -
Involvement in landings and transportation of smuggled arms,
ammunition and explosives - Whether A-42 could be held
guilty for the offence of larger conspiracy - Held: Having
regard to the fact that A-14 had chosen A-42 for the purpose
E of keeping two revolvers with him and the fact that A-42 had
readily kept the same, reveals that he was a man in which the
prime accused had confidence with respect to the conspiracy
- A-42 was involved in landing operations, however, since he
had committed the relevant acts much prior to the date of the
F bomb blasts and had not participated in any meetings, nor
was he connected with the same in any manner, and the fact
that the acts were committed by him at a time when even the
targets of the Bomb blasts had not been fixed, he could not
be held guilty for the offence of larger conspiracy.
G
H
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.3 - Bombay serial blasts of 1993 - Larger conspiracy -
Acquittal of A-79 by Special Judge - Justification - Held: The
Special Judge was not justified in acquitting A-79 from the
charge of larger conspiracy merely on the ground that he did
AHMED SHAH KHAN DURRANI @AS. MUBARAK v.
5
STATE OF MAHARASHTRA
not know about the places ~here the bombs had to be thrown
A
and he was not th~ resident of Bombay and did not participate
in the conspiratorial meetings - Finding of fact recorded by
the Special Judge also contradictory as the court held that he
participated in the arrri_s' training at Sandheri, however, he also
observed that the evidence does not disclose that any of those
B
accused had been trained in handling of handgrenades -
There being sufficient material on record that A-79
participated in the training of handling the handgrenades,
there was no occasion for the Special Judge to take such a
view - Arms Act, 1959.
Appeal -
Appeal against acquittal -
Scope for
interference - Held: The appellate court should not ordinarily
set aside a judgment of acquittal in a case where two views
are possible, though the view of the appellate court may be
c
the more probable one - The appellate court should bear in
D
mind the presumption of innocence orthe accused and further
that the trial court's acquittal bolsters the presumption of his
innocence - Interference in a routine manner where the other
view is possible should be avoided, unless there are good
reasons for interference.
E
Evidence - Recovery evidence - Appreciation - Held:
Signature of the accused is not required on the seizure memo
- Plea that evidence of recovery cannot be relied upon for the
reason that the same did not bear the signature of accused,
not acceptable.
Mrinal Das & Ors. v. State of Tripura (2011) 9 SCC 479:
2011 (14 ) SCR 411; State of Rajasthan v. Darshan Singh
@ Darshan Lal AIR 2012 SC 1973: 2012 (6) SCR 18; State
F
of W.B. v. Kai/ash Chandra Pandey (2004) 12 SCC 29: 2004 G
(5) Suppl. SCR 437; State of Rajasthan v. Teja Ram & Ors.
(1-999} S SCC, 507: 1999 (2) SCR 29 482 and Prasad
Ramakant Khade v. State of Maharashtra (1999) 8 SCC 493
- relied on.
H
\
A
B
6
SUPREME COURT REPORTS
[2013] 16 S.C.R.
Case Law Reference:
2012 (6) SCR 18
2011 (14) SCR 411
relied on
relied on
2004 (5) Suppl. SCR 437 relied on
1999 (2) SCR 29
(1999) 8 sec 493
relied on
relied on
Para 320
Para 388
Para 481
Para 482
Para 483
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
C No. 1438 of 2007
From the Judgment and Order dated 30.05.2007 of the
Presiding Officer of the Designated Court, u~der TADA (P)
Act, 1987 for Bombay Blast Cases, Greater Bombay in
D Bombay Blast Case No.1 of 1993
WITH
Crl.A. Nos. 912/2007, 1030/2012, 1311/2007, 417/2011,
1610/2011, 398/2011, 1420/2007, 1031/2012, 675-681/2008.
E 600/2011, 406/2011, 408/2011, 1034/2012, 416/2011, 512/
2008, 401/2011, 595/2011, 171/2008, 172/2008, 403/2011.
1630/2007, 1029/2012, 207/2008, 415/2011, 2173/2010,
1632/2007, 271/2008, 598/2011, 1439/2007, 1035/2012, 203/
2008, 396/2011, 414/2011, 1423/2007 and 1032/2012
F
G
Rajesh Pd. Singh, Mushtaq Ahmad, Arvind Kumar
Sharma, K.N. Rai. Ms. Farhana Shah, Dr. Sushi! Balwada, Dr.
Kailash Chand, Sanjay Jain, P. Parmeswaran, Vishwa Pal
Singh, B. Krishna Prasad, Ms. Anjali Jha, Advs., for the
Appearing Parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. Criminal Appeal No. 1438 2007.
1. This appeal has been preferred against the impugned
H judgment and order dated 30.5.2007, passed by Special Judge
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
7
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
of the Designated Court under the Terrorist and Disruptive
A
Activities (Prevention) Act, 1987 (hereinafter referred to as the
'TADA') for the Bombay Blast, Greater Bombay, in the Bombay
Blast Case No. 1 /1993, convicting the appellant under Section
5 TADA, and awarding the punishment of 5 years RI, alongwith
a fine of Rs.25,000/-, and in default of payment of fine, to further
B
undergo RI for 6 months.
2. Facts and circumstances giving rise to this appeal are
that:
A. As the facts of this case and all legal issues involved
C
herein have been elaborately dealt with in the connected appeal
i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak
Memon v. State of Maharashtra thr. can, it may be pertinent
to mention only the relevant facts and charges against the
appellant (A-20).
D
B. Bombay Blast took place on 12.3.1993 in which 257
pers~ns lost their lives and 713 were injured. In addition thereto
there had been loss of property worth several crores. The
Bombay police investigated the matter at initial stage but
E
subsequently it was entrusted to the Central Bureau of
Investigation (hereinafter referred to as 'CBI') and on conclusion
of the investigation, a chargesheet was filed against a large
number of accused persons. Out of the accused persons
against whom chargesheet was filed, 40 accused could not be
put to trial as they have been absconding. Thus, the Designated
Court under TADA framed charges against 138 accused
persons. During the trial, 11 accused died and 2 accused
turned hostile. Further the Designated Court discharged 2
accused during trial and the remaining persons including
appellant (A-20) stood conyicted.
' - \I
F
G
C. The appellant had been Charged for general conspiracy
which is framed against all the accused persons for the offences
punishable under Section 3(3) TADA and Section 120-B of
Indian Penal Code, 1860 (hereinafter referred to as 'IPC') read
H
•
8
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with
Sections 302, 307,326,324.427,435.436, 201and212 IPC and
offences under Sections 3 and 7 read with Sections 25 (I-A),
(1-B)(a) of the Arms Act, 1959 (hereinafter referred to as the
'Arms Act'), Sections 9-8(1)(a)(b)(c) of the Explosives Act,
8
·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.
D. In addition to the general charge of conspiracy, he had
also been charged under Section 3(3) TADA, under Section 5
C TADA for keeping one AK-56 rifle plus two empty magazines
and committed an offence in respect of the same under Section
6 TADA, and under Section 3(4) TADA read with Section 212
IPC, for harbouring criminals.
D
3. After conclusion of the trial, the appellant (A-20) had
been convicted under Section 5 TADA, and awarded the
sentence as mentioned hereinabove.
Hence, this appeal.
E
4. Shri Sunil Kumar, learned senior counsel appearing for
the appellant (A-20), has submitted that conviction of the
appellant (A-20) under Section 5 TADA, was not warranted in
view of the fact that the recovery had not been proved in
accordance with law. The disclosure statement alleged to have
F been made under the provision of Section 27 of the Indian
Evidence Act, 1872 (hereinafter called 'Evidence Act') has not
been strictly followed. The said alleged disclosure statement
did not bear the signature of the appellant (A-20). There were
two panch witnesses, only one has been examined. The panch
G witness examined in the case had been a stock witness in the
police as he had appeared as a panch witness in other cases.
He was the resident of an area in close vicinity of the office of
the Crime Branch of the police department. The watchman of
the Ghanshyam building from which the recovery had been
H made, has not been examined. None of the neighbours of that
AHMED SHAH KHAN DURRANI @A:S. MUBARAK v.
9
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
6. We have considered the rival submissions made by 'f'
learned counsel for the parties and perused the recerd.
7. Evidence against the appellant <A-20):
(a)
Confessional statement of the appell,ant (A-20)
(b)
Confessional statement of Muradilbrahim,Kh~n{A•
(c)
130)
Deposition of Mohame·d Ayub Mohamed Umar
(PW-72)
G
H
10
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A
(d)
Deposition of Sahadev (PW-181)
(e)
Deposition of Nagesh Shivdas Lohar (PW-356)
(f)
Deposition of Shivaji Shankar Sawant (PW-524)
B
(g)
Recovery of AK-56 rifle and two magazines
Confessional statement of the appellant (A-20):
8. The confessional statement made by the appellant has
not been relied upon by learned Special Judge. Therefore, we
C are not making any reference to it and it has to be ignored. More
so, we do not find any force in the submission made by Shri
Sunil Kumar that there had been two FIR's in respect of the
same incident as a large number of remand applications had
)
been filed and it is evident from the application that at initial
D stage it was shown as L.A.C. 23/93, but a correction had been
made though without initials by the person who made the
correction, but in his subsequent application it had been shown
as L.A.C. 22/93. More so, the FIR number connecting this case
is the same. Only one FIR had been exhibited in the court as
E Exhibit 1284-A dated 18.4.1993 and it contains case no.
L.A.C. 23/93. Therefore, we do not think that the submission
requires further consideration.
Confessional statement of Murad Ibrahim Khan (A-130):
F
9. He had disclosed that he was fully acquainted with
G
Ji
Yakub Veda and the appellant (A-20). Thus, he was having
acquaintance with hardened criminals.
Deposition of Mohamed Ayub Mohamed Umar CPW-72)
1 O. He is a pan ch witness and a hawker, selling fruits on
the footpath near Crawford Market. He deposed that on
17.4.1993 at about 12.45 hours, he was called to the police
station by a Hawaldar and there Constable, Shivaji Sawant, P.1.
asked him whether he would like to act as a panch witness in
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
11
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J;}
a case related to the Bombay Blast. He consented for the same
A
and one more panch witness was also present in the said room.
In his presence, accused (A-20) disclosed his name as Salim
Khan and he said in Hindi that he was in possession of one
AK-56 rifle and two magazines in his workshop the recovery
of which he would get effected. The witness further corroborated
B
the entire version of the recovery
The witness further deposed thaflhe police party alongwith
the accused (A-20) and the panch witnesses proceeded in the
police vehicle and towards the place disclosed by the appellant
C
(A-20) and entered the building pointed out by the appellant (A20). The said workshop had a loft and one staircase. One police
officer went on the loft. Thereafter, all other persons followed
him. On the directions of the appellant, cartons, scrap material
and gunny bag were found. The said gunny bag was turned out
for emptying the same. One AK-56 rifle and two magazines
D
were taken out of the said gunny bag. The AK-56 rifle and
magazines were SE;!parately wrapped in brown paper and three
packets were prepared and sealed separately. The packets
were signed by him, co-panchas and St:lri Sawant.
In cross-examination, the witness (PW.72) said that label
put up on the recovered goods had his slgnature and the goods
had been seized.
He further denied the suggestion __ made by the. defence
that he was the regular panch witness for the police:How_ever,
he had admitted that occasionally, he had worked as such and
he had been a panch witness in other cases.
Deposition of Shivaji Shankar Sawant, P.I. (PW-524)
11. He deposed that on 17.4.1993, he was interrogating
E
F
Gthe appellant (A-20) who was arrested in C.R. No. 71/93
alongwith some other police officials. During the said
interrogation, the appellant (A-20) consented to make the
voluntary statement and in the presence of the panch witnesses
H
12
SUPREME COURT REPORTS
(2013] 16 S.C.R.
A and other police officials, the appellant (A-20) made a
disclosure statement in Hindi. He recorded the same in the
panchanama. The panchnama was read over to the appellant
(A-20) and the panch witnesses. It was signed by the panch
witnesses and countersigned by him (A-20). He disclosed that
B the appellant (A-20) had consented to show the place and take
out AK-56 rifle and two empty magazines kept by the appellant
(A-20).
He further deposed that panchnama of the recovery from
the workshop of the appellant (A-20) was correct. The same
C bears his signature and the signatures of panch witnesses and
it was ii;ompleted on 18.4.1993.
He was a Police Inspector and working as a Dy. S.P. for
Protection of Civil Rights, Unit Bombay. He clarified the
D correction regarding L.A.C.Nos. 22/93 and 23/93 and
explained that there was a correction on the L.A.C. numbers.
However. he had admitted that he had made that correction
while registering the said case though it did not bear his initials
and he was not in a position to give any reason for not putting
E his initials and correction was necessary as there had been
some typographical error. He further stated that he arrested the
accused formally in L.A.C. No. 23/93 at 1.25 a.m. on
18.4.1993.
In paras 65 and 66, he deposed that he did not register
F any L.A.C. No. 22/93 and also did not know the name of officer
who had registered L.A.C. 22/93.
Deposition of Sahadev CPW-181 ):
G
12. He deposed that on 14.5.1993, he received requisition
from Worli Police station for recording the confessional
statement of the appellant A-20 and he had proved the said
confessional statement.
Deposition of Nagesh Shivdas Lohar CPW-356)
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v.
13
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
13. He has deposed that on 17.4.1993, he alongwith
A
Shivaji Sawant and one Head Constable interrogating the
appellant (A-20) in case No.C.R. 71/93. He corroborated that
Shri Sawant had asked the appellant (A-20) whether he wanted
to make the voluntary statement. Thereafter, appellant made the
statement in Hindi. He recorded the statement of the appellant
B
in Hindi in the panchnama which was ma~ked as Exh. 378 and
is the same panchanama recorded by him about the statement
of appellant (A-20) between 1.7th and 18th April, 1993.
14. The recovery of the AK-56 rifle and two magazines had
been made on 17th/18th April, 1993 and in respect of the same
C
panchanama Exh. 383 makes it clear that Farid Alam Rais
Alam Qureshi and Mohamad Ayub Mohamad Umar had been
the panch witnesses and in their presence the appellant (A-20)
voluntarily made a disclosure statement that the AK-56 rifle was
kept in his workshop. This panchnama was concluded at 23.10
D
hours on 17.4.1993. The panchnama has been signed by both
the witnesses as well as by the Inspector of Police, Shri S.S.
Sawant. However, it does not bear the signature of the
· appellant (A-20). It further shows that in continuation of the
same, the search was conducted and it reveals that after
E
making the disclosure statement, the police had taken the
accused alongwith the panch witnesses to a closed workshop
named as 'Bon~ Parte' industry belonging to him. The said
workshop was having its shutter down and locked and in
absence of the key the police forced open the lock and opened
F
the same. The panchas alorigwith _the accused (A-20) and the
police party entered theworkshop and found that there was no
electricity however, they found that the loft measured
approximately 16' x 40'. had a loft with a staircase. The
appellant (A-20) .led all of them to the loft by staircase. On
G
reaching there the appellant (A-20) took out a box and scrap
was removed. One AK-56 rifle and empty magazines were
found wrapped in gunny sack. The police examined the said
material and prepared the recovery memo. The recovery memo
contained one AK-56 assault rifle of folding type butt, in rusted
H
14
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A condition but had been greased and two magazines of AK-56
assault rifle with no identification marks and numbers and it was
in rusted condition and greased.
15. The Designated Court after appreciating the evidence
8 on record came to the conclusion as under:
c
• D
E
F
G
H
"A-20 having not explained the reason of his knowledge
of such a contraband articles being kept in a said factory
of which he was partner the same will lead only to the
inference of himself having kept the same. The same is
obvious as A-20 could have knowledge about the same
in three contingencies i.e. a) he had kept the
contrabands himself b) having seen somebody keeping
the same there c) somebody had told him that the 'same
being kept at the said place or having seen himself of
such articles being kept at that place. In view of failure of
A-20 to give any explanation regarding his knowledge
being due to the reasons as stated in the aforesaid
cl.auses b) and c) the same will lead to the conclusion
as stated aforesaid. With regard to matter stated in
clause c) aforesaid it can be additionally added that since
the accused was also partner of the said shop· allowing
the remaining of such articles at the said place would also
attract the liability for the same .... ]
The same is the case regarding the submission
advanced on the basis of A-20 at the time of reco'very
not having the key of the relevant gala.
In light of the aforesaid discussion it is difficult to accept
the submission canvassed that the evidence only
establish the knowledge of A-20 of the contraband
material lying at the said place and the same does not
amount to himself being in conscious possession of the
same. Needless to add that the inferences flowing from
the statement made by A-20 consciously are not of a
nature of denoting himself not being in conscious
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
15
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
possession of contraband articles within the notified
A
area .... "
16. We have appreciated the evidence on record and the
case depends upon the veracity of evidence regarding
recovery.
B
There is sufficient material to show that the recovery had
been made at the behest of the appellant (A-20) from the
factory owned by a partnership to which he was the partner
alongwith one Surjit Singh. In such a fact-situation, he ought to
have explained the reason/source of his knowledge of such
C
contraband articles being kept in his factory.
17. In the instant case, as he has not mentioned that he
had seen someone.keeping the articles there, or somepody
had told him about that, or he had seen the things lying there,
0
the only reasonable inference is drawn that he hi,mself had kept
the same at that place. Being a partner of the firm if he wa~
having the knowledge that some contraband were lying in his
premises, he ought to have informed the police if he had no
guilty mind.
18. So far as the explanation that at the time of recovery
he did not have the key, would not be enough to tilt the balance
E
in his favour. The fact that he did not have the key becomes
totally redundant, as no conclusion can be drawn that the
appellant (A-20) was not in possession of the said premises,
F
and in such a fact-situation, it cannot be held that the appellant
(A-20) was not in conscious possession of the contraband
material.
19. We do not find any force in the submissions made by
G
Shri Sunil Kumar, learned senior counsel appearing for the
· appellant (A-20), that the panch witness was the resfclent of
Sitaram building, which was opposite to the office of the
Commissioner of Police, or in a very close proximity of the
.
.
same, and was working on the footpath nearby the said building,
H
J;
16
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A and he had acted earlier as a panch witness in test
identification parade.
20. The police when searching for a panch witness, need
not go to far off place of the police station as the panchnama
8
is required to be recorded in a close proximity of time, when
the accused apprehending his disclosure statement. Therefore,
on such material suspicion about the credential of the police
or panch witnesses cannot be doubted, unless there is some
material to prove the contrary. Had it been picked up from a
far off place, criticism could have been otherwise as to why the
C panch witness could not be called from neighbourhood.
21. The panch witness Mohamed Ayub Mohamed Umar
(PW-72) could not be held to be a tutored witness or acting at
the behest ~f the prosecution only on the ground that he had
D also been the witness in another case. It does not give a reason
to draw inference that he was a stock panch witness unless it
is shown that he had acted in such capacity in a very large
number of cases.
E
22. More so, it cannot be held that. Mohamed Ayub
Mohamed Umar (PW-72) was not an independent witness, or
acting under the pressure of the police as he was carrying the.
business illegally without any license. More so,_ the appeUant-(A20) had made the disclosure statement in his pr~sence, he
could explain the same. Therefore, it could not be held that he
F was deposing falsely.
23. We do not see any reason as to why his evidence
should not be relied upon. Minor omissions/contradictions
regarding labeling and sealing are not really the contradictions
G which go to the root of the matter. Non-examination of the
watchman of Ghanshyam Industrial Estate, or omission of factor
regarding electricity being not mentioned in the panchnama, or .
non-collection of broken lock, are the .omissions of trivial nature,
and do not warrant any undue importance for doubting the
H evidence of recovery.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v.
17
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
24. Law does not require the witness to corroborate the
A
evidence of an independent witness. Thus, the evidence of
Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by
the contemporaneous panchnama is trustworthy.
25. As the appellant (A-20) made a statement leading to
B
the discovery of AK-56 assault rifle and two· magazines having
kept in his workshop and the same had been found concealed
on the loft, he cannot escape from the liability of possessing
and concealing of the same, thus liable to be punished under·
Section 5 TADA. We see no reason to interfere with the
C
conclusion drawn by the learned Designated Court. The appeal
is accordingly dismissed.
CRIMINAL APPEAL N0.912 OF 2007
Aziz Ahmed Md. Ahmed Shaikh ... Appellant
D
Versus
State of Maharashtra
... Respondent
26. This appeal has been preferred against the judgments
E
and orders dated 11.10.2006 and 31.5.2007, passed by
Special Judge of the Designated Court under the TADA for
Bombay Blast, Greater Bombay, in the Bombay Blast Case No.
1/93, by which the appellant had been found guilty under Section
5 TADA and on that count, he was sentenced to suffer RI for 5
years, and ordered to pay a fine of Rs.25,000/-, and in default
of payment of fine, to suffer further RI for 6 months. He (A-21)
was further convicted under Sections 3 and 7 read with Section
25(1-A)(1-B)(a) of the Arms Act, but no separate sentence was
awarded for the same.
27. Facts and circumstances giving rise to this appeal are
that:
F
G
A. In addition to the first charge of general conspiracy, he
was charged for attending conspiratorial meetings at Dubai
H
18
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A where criminal conspiracy was discussed for distributing arms
and ammunition to co-conspirators and for providing funds to
them. Thus, he (A-21 )·was charged under Sections 3(3) and
(4) TADA. Further, he (A-21) was charged with unauthorisedly
being in possession of one U.S. Carbine Q.300 with three
B magazines and 28 cartridges in the notified area under TADA,
between January 1993 and 5th April, 1993, and thus, charged
under Sections 5 and 6 TADA, and further under the provisions
of Sections 3 and 7 read with Sections 25(-A), 25(1-B)(a) of
the Arms Act.
c
D
B, After the trial, the appellant (A-21) stood acquitted of
all the charges except charges under Section 5 TADA and
under the Arms Act.
Hence, this appeal.
28. Shri Mushtaq Ahmad, learned counsel appearing for
the appellant has submitted that the appellant had wrongly been
involved in the offence and convicted, though there is no
sufficient evidence on record, to involve the appellant in the
E crime. The evidence particularly the confessional statement of
the appellant and the depositions of other witnesses particularly,
Bhaskar Babu Rao Jadhav (PW-57), Dayandeo Sonaji Geete
(PW-320), Vijay Meru (PW-561 ), and Shivajirao Kondiram
Babar (PW-683) etc. are not worth reliance. The confessional
F statement of the appellant cannot be rel)ed upon, as it was not
made voluntarily and truthfully. The appeal deserves to be
allowed.
29. Shri Mukul Gupta, learned senior counsel appearing
for the State has submitted that the appellant was a close
G associate of Tiger Memon (AA). He was fully involved in the
entire episode including the conspiracy. He has wrongly been
acquitted for the said charge. Thus, no interference is called
for. The appeal is liable to be dismissed.
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
19
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
30. We have heard learned counsel for the parties and
A
perused the record.
31. Evidence against the appellant CA-21):
(a)
Confessional statement of the appellant (A-21)
B
(b)
Deposition of Bhaskar Babu Rao Jadhav (PW-57)
(c)
Deposition of Dayandeo Sonaji Geete (PW-320)
(d)
Deposition of Vijay Meru (PW-561)
c
(e)
Deposition of Shivajirao Kondiram Babar (PW-683)
Confessional Statement of appellant CA-21 ):
32. His (A-21) confessional statement had been recorded,
however, the same had been discarded by the Designated
D
Court, thus it cannot be considered. The evidence against the
appellant (A-21) remains the recovery of the aforesaid arms
and ammunition. In fact, an FIR had been registered on
5.4.1993 at 6.10 p.m. that the appellant (A-21) was found hi
possession of a Carbine of 30 Caliber of U.S. make, three
E
magazines and 28 cartridges without holding a fire arms
license. It was further revealed that on. that day, the police got
information that the appellant (A-21) who was a resident of
Pydhonie, Mumbai was scheduled to come near a mosque
opposite Pydhonie Police Station to acquire arms and
F
ammunition of foreign make. On that information the trap was
arranged near the Pydhonie Police Station. At about 1.30 p.m.
the trap party received the pre-decided signal, on which the
appellant (A-21) was searched, however he was not carrying
any arms and ammunition with him. He was brought to the DCB,
G
CID office and during interrogation he expressed his willingness
to make a voluntary statement. Therefore, two panchas were
called from the nearby area and in their presence, the appellant
(A-21) disclosed that he had acquired two Carbines of foreign
make and some arms and ammunition from one Mujahidan and
H
20
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A one of the said Carbine had been concealed at Naryalwadi,
Mazgaon. The appellant (A-21) led the police party and
Panchas to Naryalwadi Muslim Cemetery (Kabaristan),
Mazgaon and from the said graveyard he took out one gunny
bag duly tied with a rope. It had been concealed in thickly grown
B trees and shrubs. On being examined, one single barrel
Carbine, 28 cartridges and 3 magazines were found.
Panchnamas have made for his disclosure statement as well
as for recovery of the said articles.
C Deposition of Bhaskar Babu Rao Jadhav (PW-57):
33. He is a panch witness. He supported the case of the
prosecution and proved the disclosure statement of the
appellant (A-21) as well as the recovery made at his behest.
D He gave a full description of how the appellant (A-21) made
the disclosure statement and how the recoveries were made.
It corroborates the version given in the FIR. However, in his
cross-examination, he (PW-57) stated that he (PW-57) had
prepared the notes for deposing in the court. He had giv~n full
E details of the incident of 5.4.1993. In cross-examination he had
admitted that he had also acted as a panch witness in 3 more
cases.
Deposition of Dayandeo Sonaji Geete (PW-320):
F
34. His deposition revealed that he had accompanied the
appellant (A-21) at the time of recovery alongwith others. He
admitted in his cross-examination that he himself had not made
any entry in the Station Diary regarding the information received
by Senior P.I. Shri Kumbhar about the appellant (A-21 ). He has
G further deposed that he could not remember the manner in
which the panch witness arrived in the office. The said panch
was brought by the police havaldar. The appellant (A-21) had
been detained in the office of DCB, CID under suspicion due
to the receipt of information that he was to be at Pydhonie for
H acquiring arms. He also deposed that the office of the Bombay
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v.
21
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Municipal Corporation was inside the Naryalwadi Kabristan
A
from where the recovery had been made at the instance of the
appellant (A-21 ). He further proved the recovery and denied the
suggestions that the appellant (A-21) did not make any
disclosure statement nor any recovery had been made at his
behest. He has also identified appellant (A-21) in the court.
B
35. The deposition of Dayandeo Sonaji Geete (PW-320)
has been fully corroborated by another police official Vijay Meru
(PW-561) in all respects. However, he has admitted that he had
not made any entry in the Station Diary regarding the information
received by Senior P.I. Shri Kumbhar, nor he was aware how
C
the panch witness arrived and who was the police havaldar who
brought the panch witnesses. However, he (PW-561) deposed
that he had detained the appellant (A-21) on information that
he was to be at Pydhonie for acquiring arms. Appellant (A-21)
came there at about 1.30 p.m. and on getting the signal, the
D
police party pounced upon him and apprehended him.
Appellant (A-21) was searched but he was not carrying any
weapon, however, one Ceiko watch, his driving licence, labour
card bearing his photograph of Arab Emirates and some
Dirharns and a silver ring were found with him. The inventory
E
·of the said articles was prepared and they were seized. The
currency in Dirhams was of the value of Rs. 13 to 14 thousand
Indian rupees. He was interrogated by A.C.P. Shri Babar (PW683) and Senior P.I. Shri Kumbhar. It was during his
interrogation that appellant (A-21) expressed his desire to make
F
the voluntary statement regarding fire arms. Thus, two panches
were called. The suspect was introduced to the panches. The
memorandum panchnama was prepared in respect of his
disclosure statement. It was signed by panch witnesses and,
thus, he supported the recovery of the articles as narrated by
G
the other witnesses. He had proved the complaint as well as
the proforma FIR on the basis of the said complaint. PW.561
registered the said offence as LAC No. 18 of 1993 against the
appellant (A-21) for the offences punishable under Sections 3
and 7 read with Section 25 of the Arms Act. Though he was
H
22
SUPREME COURT REPORTS
(2013] 16 S.C.R.
A competent to answer as to whether the panch witnesses had
been stock witnesses or whether there was any discrepancy
in drawing the memorandum panchnama but defence did not
ask any question during his cross-examination. He (PW-561)
identified the appellant (A-21) on 24.4.1998 in the court and
B he has denied the suggestion made by the defence that the
appellant (A-21) had not made any disclosure statement, nor
the recovery of arms had been made on his disclosure
statement.
Deposition of Shivajirao Kondiram Babar, ACP (PW-683):
c
36. In his deposition, he revealed that he had received the
information about appellant (A-21) that he would get the
weapons near a mosque opposite police station Pydhonie. He
had received the information from a secret source on telephone,
D he recorded the same and passed on the same to the senior
officers. He deposed that on 5.4.1993 while he was in his office
at Crawford Market, he had received the information from his
source on telephone to the effect that appellant (A-21) involved
in Bombay blast case was in possession of fire arms and would
E be available at Pydhonie. Immediately thereafter, he formed a
team of police officers and staff and went to the Pydhonie and
arrested the appellant (A-21), brought him to the office of DCB,
CID at Crawford Market and he (A-21) was interrogated.