# STATE OF MAHARASHTRA ETC v. SOM NATH THAPA ETC. APR TL 12, 1996

- **Citation:** [1996] Supp. 1 S.C.R. 225
- **Court:** Supreme Court of India
- **Decided:** 1993-03-12
- **Case number:** Criminal Appeal No.480 of 1996
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-etc-v-som-nath-thapa-etc-apr-tl-12-1996-14095
- **Pages:** 36

## Headnote

v
STATE OF MAHARASHTRA ETC.
A
v.
SOM NATH THAPA ETC.
APR TL 12, 1996
IA.M. AHMADI, CJ, B.L. HANSARIA AND S.C. SEN, JJ.]
B
Indian Penal Code 1860, S. 120 A-<::Jiminul conspiracy~Bombay
blasts in which anns and an1111unition and RDX e.lplosives used--(J1arge of
con~piracy against nzanber of accused--U!Jiether prosecution 'I-Vas required to
show that each accused had to have knowledge of commission of illegal act C
by co-con.\]Jirator in addition to intent to ftather the illegal act- Held1 intent
could be injen·ed from knowledge when no legitimate use of goods in question
exists; Held jiuthe1; since RDX cannot be put lo any legitin1ate use prosecution
need not show that a ]JG1ticular unlawful use 1vas intended .
Code of Oiminal Procedure 1973, Ss. 227, 228, 239 and 245-Framing D
of charge-Held, at the stage of framing of charge court cannot go into
probative value of matelials.
Tm01ist and Disruptive Activities (Prevention) Act 1987-S.1(4)-Effect of lapse of Act on jJending investigations--Held, pending investigations E
have to be continued even after expily of the Act.
Terrorist and Disruptive Activitie;·
(P,.evention) Act
1987,-S.2(1)(a)(iii) r/w S.3(3)-Appellant AAA charged with booking air
tickets for accused to facilitate their weapon training in Pakistan out his oivn
funds thus abetting te11nrist act-Held, on exan1inati n of records, there was
no matCJial to frame individual chwge against appellant~ode of Oiminal
Procedure, Ss.227, 228.
Te1ro1ist and Disruptive Activities (Prevention) Act 1987-S.2( 1)(a)(iii)
F
r/w s.3(3)-Appellant AAM asking accused to remove jeep with anns and G
anununition in his co1npound-Held, appellant neither in conscious possession of anns not abetted accused in conunitting te1To1ist act; entitled to
dischwge-Code of Climinal Procedure 1973, Ss. 227, 228.
Ten'Olist and Disntptive Activities (Prevention) Act 1987~S.2( J)(a)(iii)
r/w S.3(3)-Appellant RJ having knowledge of transp01tation of anns and H
189
190
SUPREME COVRT REPORTS IJ'!96I SUPP. l S.C.R.
A
RDX used in bomb blast-Appellant providing financial assistance and jeeps
having cavities to conceal anns·-Heh~ there intention to use it for illegal
p1u7Jose has to be in1puted; appellant Tightly charged rvith abet111ent-JncUan
Penal Code 186(}-S. /09.
B
c
D
E
Terrmist and Dis111ptive Activities (Prevention) Act 1987-S.(2)(a)(iii)
r/w s.3(3)-Appel!ant SNT an Additional Collector of Customs (Preventive)
charged with facilitating movement of arms, RDX-Appellant granted
bail-Heir\ charges ni;htly framed but case for cancellation of bail not made
our-Tenmist and Dis1uptive Activities (Prevention) Act 1987, s.20(8)
On March 12, 1993 a series of bomb blasts took place at important
centres of com1nercial activity in Bombay leaving move than 250 persons
dead, 730 injured and property worth about Rs. 27 crores destroyed. The
investigation by the CBI led to chargesheet being filed against 145 persons
under various provisions of the IPC and the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA). The designated court framed
charges against 127 persons including the appellants AAA, AAM, RJ and
SNT. The appellants assailed in this Court, the order of the Designated
Court framing charges against each of them for offence; punishable under
TADA.
AA>\ was charged with having booked air tickets for the other
accused for their travel to Pakistan for weapon training from his own
funds thus abetting a terrorist act. According to AAA, on account of
cancellation of a ticket on March 11, 1993 an amount of Rs. 9,939 had been
credited in the account of his firm in the books of M/s. Hans Air Service.
Relying on this, the prosecution contended that money for the journey of
F
the terrorists had been paid.
As regards AAM, the charge was that he had permitted a co-accused
to park jeeps laden with arms and RDX explosives in his premises and
was therefore in conscious possession of the same. AAM contended that
G he had objected to the co-accused parking his vehicle an

## Text

_Characters 0–39,796 of 79,083. This is a partial read: ask again with offset=39796 for what follows._

v
STATE OF MAHARASHTRA ETC.
A
v.
SOM NATH THAPA ETC.
APR TL 12, 1996
IA.M. AHMADI, CJ, B.L. HANSARIA AND S.C. SEN, JJ.]
B
Indian Penal Code 1860, S. 120 A-<::Jiminul conspiracy~Bombay
blasts in which anns and an1111unition and RDX e.lplosives used--(J1arge of
con~piracy against nzanber of accused--U!Jiether prosecution 'I-Vas required to
show that each accused had to have knowledge of commission of illegal act C
by co-con.\]Jirator in addition to intent to ftather the illegal act- Held1 intent
could be injen·ed from knowledge when no legitimate use of goods in question
exists; Held jiuthe1; since RDX cannot be put lo any legitin1ate use prosecution
need not show that a ]JG1ticular unlawful use 1vas intended .
Code of Oiminal Procedure 1973, Ss. 227, 228, 239 and 245-Framing D
of charge-Held, at the stage of framing of charge court cannot go into
probative value of matelials.
Tm01ist and Disruptive Activities (Prevention) Act 1987-S.1(4)-Effect of lapse of Act on jJending investigations--Held, pending investigations E
have to be continued even after expily of the Act.
Terrorist and Disruptive Activitie;·
(P,.evention) Act
1987,-S.2(1)(a)(iii) r/w S.3(3)-Appellant AAA charged with booking air
tickets for accused to facilitate their weapon training in Pakistan out his oivn
funds thus abetting te11nrist act-Held, on exan1inati n of records, there was
no matCJial to frame individual chwge against appellant~ode of Oiminal
Procedure, Ss.227, 228.
Te1ro1ist and Disruptive Activities (Prevention) Act 1987-S.2( 1)(a)(iii)
F
r/w s.3(3)-Appellant AAM asking accused to remove jeep with anns and G
anununition in his co1npound-Held, appellant neither in conscious possession of anns not abetted accused in conunitting te1To1ist act; entitled to
dischwge-Code of Climinal Procedure 1973, Ss. 227, 228.
Ten'Olist and Disntptive Activities (Prevention) Act 1987~S.2( J)(a)(iii)
r/w S.3(3)-Appellant RJ having knowledge of transp01tation of anns and H
189
190
SUPREME COVRT REPORTS IJ'!96I SUPP. l S.C.R.
A
RDX used in bomb blast-Appellant providing financial assistance and jeeps
having cavities to conceal anns·-Heh~ there intention to use it for illegal
p1u7Jose has to be in1puted; appellant Tightly charged rvith abet111ent-JncUan
Penal Code 186(}-S. /09.
B
c
D
E
Terrmist and Dis111ptive Activities (Prevention) Act 1987-S.(2)(a)(iii)
r/w s.3(3)-Appel!ant SNT an Additional Collector of Customs (Preventive)
charged with facilitating movement of arms, RDX-Appellant granted
bail-Heir\ charges ni;htly framed but case for cancellation of bail not made
our-Tenmist and Dis1uptive Activities (Prevention) Act 1987, s.20(8)
On March 12, 1993 a series of bomb blasts took place at important
centres of com1nercial activity in Bombay leaving move than 250 persons
dead, 730 injured and property worth about Rs. 27 crores destroyed. The
investigation by the CBI led to chargesheet being filed against 145 persons
under various provisions of the IPC and the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA). The designated court framed
charges against 127 persons including the appellants AAA, AAM, RJ and
SNT. The appellants assailed in this Court, the order of the Designated
Court framing charges against each of them for offence; punishable under
TADA.
AA>\ was charged with having booked air tickets for the other
accused for their travel to Pakistan for weapon training from his own
funds thus abetting a terrorist act. According to AAA, on account of
cancellation of a ticket on March 11, 1993 an amount of Rs. 9,939 had been
credited in the account of his firm in the books of M/s. Hans Air Service.
Relying on this, the prosecution contended that money for the journey of
F
the terrorists had been paid.
As regards AAM, the charge was that he had permitted a co-accused
to park jeeps laden with arms and RDX explosives in his premises and
was therefore in conscious possession of the same. AAM contended that
G he had objected to the co-accused parking his vehicle and asked him to
remove it immediately. Therefore he had not aided or abetted the co-accused.
The charge against RJ was that be had provided financial assistance
and jeeps to the accused which had cavities to conceal ammunition and
H
RDX. The jeeps used were recovered at his instance. It was contended for
STATE v. S.N. THAPA
191
RJ even if he had knowledge about transportation of arms, he did n"ot play A
a part in the conspiracy for lack of criminal intent to use them for an
illegal purpose.
SNT, au additional Collector of Customs (Preventive) was charged
with allowing the smuggling of arms and explosives without doing
nakabaudi at the prearranged point but at some distance therefrom, thus
leaving an escape route for the terrorists to carry the arms to Bombay. It
was contended for SNT that the motive was sought to be established on
the basis of a gist of a tape recorded conversation carried by a co-accused
which was itself inaudible. Moreover, the statements of two inspectors used
B
in evidence were contradictory and therefore no case was made ollt.
C
The State of Maharashtra in its appeal in this Court sought cancellation of bail granted by the designated court to SNT.
Allowing the appeals of AAA and AAM and dismissing the remaining
appeals, this Court
D
HELD : 1.1. To establish a charge of conspiracy know/edge about
indulgence in either an illegal act or .a legal act by illegal means was
necessary. In some cases, littent of unlawful use being made of the goods or
services in question may be inferred from the knowledge itself. This apart, E
the prosecution had not to establish that a particular unlawful use was
intended, so long as the goods or service in question could not be put to any
lawful use. Finally, when the ultimate offence consisted of a chain of actions,
it would not be necessary for the prosecution to establish, to bring home
the charge of conspiracy, that each of the conspirators had the knowledge
of what the collaborator would do, so long as it was known that the colF
laborator would put the goods or service to an unlawful use. [201-F-H]
R.v. Hawkes/ey, (1959) Criminal Law Report 210, People v. Lawia,
[251] California Appeal 2d 471, Natwarlal Shankarlal Mody v. State of
Bombay, (1961) Bombay Law Report 661, United States v. Feola, 420 US G
671, Ajay Aggarwal v. Union of India, [1993] 3 SCC 609, United States v.
Falcone, 311US205, Direct Sales Co. v. United States, 319 US 703, Yash Pal
Mittal v. State of Punjab, (1977] 4 SCC 540 - referred to.
2. At the stage of framing of charge, probative value of the materials
on record cannot be gone into; the materials brought on record by the H
192
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R
A
prosecution has to be accepted as true at that stage. [205-B]
B
R.S. Nayak v. A.R. Antulay, [1986) 2 SCC 716, State of Kumataka v.
L. Muniswamy, [1977) 3 SCR 113 and State of West Bengal v. Mohd. Khalid,
[1995) 1 sec 684 - referred to.
Black's Law Dictionary; Shorter Olford Engli'h Dictionmy; Stroud's
Legal Dictionwy; Law Lexicon by P. Ramanath Aiyer - referred to.
3.l. The contention that with the lapse of the Act, s.1(4) which saves
investigation instituted before the Act had expired had itself lapsed and
C that therefore the proceedings under TADA cannot be continued was
without force. [205-C-D)
3.2. In view of section 1(4) of the Act, the framers of the Act had
desired that even after its expiry, the proceeding initiated under the Act
should not come to an end without the final conclusion and determination,
D which had, therefore, to be continued in spite of the expiry of the Act.
[205-E-F]
Mohd. Iqbal v. State of Maharashtra, JT (1996) 1 SC 114 - followed.
4. There being no material to frame individual charge under s.3(3)
E
of TADA, the general charge qua appellant AAA had also to fail. The only
incriminating material, namely, crediting the amount of Rs. 9,939 in the
account of the appellant AAA's firm in the books of M/s. Hans Air Services,
was a weak circumstance to say that the appellant might have abetted the
offences in question. [210-D; BJ
F
G
State of Kamataka v. L. Mwziswamy, [1977) 3 SCR 113 followed.
5. AM-I should be discharged. His conduct was clearly indicative of
the fact that be was neither in conscious possession of arms nor had he
aided in any way in the terrorist act. After he came to know about the
parking of vehicles loaded with arms, he immediately asked that the jeep
be removed from his compound. [212-C-F]
Sanjay Dutt v. State, [1994) 5 SCC 410, State of Maharashtra v.Abdul
Hamid Haji Mohammed, [1994) 2 SCC 664, State of West Bengal v. Mohd.
H
Khalid, [1995) 1 SCC 684 referred to.
STATE v. S.N: THAPA
193
6.1. The alleged fact that the jeeps provided by the appellant RJ had A
cavities to conceal arms, ammunition and RDX, and that the jeeps were
recovered at the instance of the appellant in which were found traces of
RDX would p1inza facie show that the appellant had aided th< terrorist act
in question, even as per the definition of the word
11abet
11 given in s.109 of
the Penal Code. The alleged financial assistance provided would attract
the enlarged definition of abetment given in section 2(1) (a)(iii) of the Act.
[215-E-F)
6.2. Any reasonable person knowing about transportation of·
materials like RDX had to be imputed the intent of its use for illegal
purpose - there being no material to show that RDX could be put to any
legal use. The prosecution had no obligation under the law to establish that
the appellant RJ had known that the RDX, and for that matter other
objectionable materials would be used for the purpose of blasts which had
taken place in Bombay. [215-D-E]
B
c
7.1. Charges were rightly framed against SNT. The law did not permit D
finding ont at this stage as to which of the two versions given by the
Inspectors was correct. At the stage of framing of charge probative value
of the statement could not be gone into. [223-D; 222-C-D)
7.2. Even if benefit was given to SNT with regard to the tape recorded
conversation relied on, that would tend to demolish the case·ofthe prosecuE
tion mainly relatable to motive which was not required to be established to
bring home an accusation. [222-H; 223-A]
7 3. No case for cancellation of bail granted to SNT has been made
out despite the view that charges were rightly framed against him. (223-G)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.480 of 1996 Etc. Etc.
From the Judgment an<l Order dated 7.2.95 of the Designated Court
for Greater Bombay in Bail Application No. 25/94 in B.B.C. No. 1of1993.
K.T.S. Tulsi, Additional Solicitor General, Ram .Tethmalani, Rajinder
Singh, Adik Shirodkar, T.C. Sharma, P. Parmeswaran, P.K Dey, Ms. Rani
Jethmalani, Rajiv Narula, R.N. Karanjawala, Bhasker Pradhan, Manik
Karanjawala, (H.H. Panda, Aman Vachher) for K.L. Mehta & Co.,
Rajendra Shirodkar, A.M. Khanwilkar, P.H. Parekh, Ms. Sunita Sharma
F
G
for the appearing parties.
H
194
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A
The Judgment of the Court was delivered by
B
c
D
E
F
HANSARIA, J. Bombay of yesterday, Mumbai of today : financial
capital of the nation. It woke as usual on 12th March, 1993. People started
for their places of work not knowing what was in their store. The terrorists
and/or dis-uptionists, bent on breaking the backbone of the nation (for
reasons which need not be gone into) had, however, hatched a well laid-out
conspiracy to cripple the country by striking at its financial nerve. As
Bombay set down to work, blasting of bombs, almost simultaneously, took
place at important centres of commercial activities like Stock Exchange,
Air India, Zavcri Bazar, Katha Bazar and many luxurious hotels. A shocked
Bombay and a stunned nation first tried to provide succour to the victims
as much as possible and then wanted to know the magnitude of the loss of
life and property. It surpassed all imagination, as it was ultimately found
that the blasts left more than 250 persons dead, 730 injured and property
worth about Rs. 27 crores destroyed. By all counts, it was thus a great
tragedy; and revolting also, as it was men-made.
2. All right thinking persons and wellwishers of the nation started
asking; Why it happened ? How could it happen ? We are not concerned
in these cases with why, but with how. The gigantic task led Bombay police
despite its capability, to seek assistance of the CBI. An arduous and
painstaking investigation by a team of dedicated officials showed that the
aforesaid bomb blasts were a result of deep rooted conspiracy - concerted
action of many, guided either by greed or vengeance. The finale of investigation consisted in charge-sheeting 145 persons (for whom 38 were shown
as absconders) under various sections of the Penal Code and the Terrorists
And Disruptive Activities (Prevention) Act, 1987 (TADA), hereinafter the
Act also. The Designated Court constituted under Section 9 of the Act
came to be seized of the matter and by its impugned order of 10.9.1995 it
has framed charges against 127 persons, discharging at the same time 26.
One died and two hccame approvers. (The total thus comes to 140).
G
3. Of the charged accused, four : (1) Abu Asim Azmi; (2) Amjad
Aziz Meharbak.,h; (3) Raju alias Raju Code Jain; and (4) Sonmath Thapa
have approached this Court having felt aggrieved at their having not been
discharged. The State of Maharashtra has approached the Court seeking
cancellation of bail granted to appellant Thapa.
H
4. We were fortunate to have leading criminal lawyers of the country
f
•
STATE v. S.N. THAPA [HANSARIA, J.]
195
to assist us in the matter in as much as Shri Ram J ethmalani appeared for A
Raju and Moolchand, Shri Rajindcr Singh for Abu Azim Azmi, Shri R.K.
Jain for Amzad Ali and Shri Shirodkar for appellant Th a pa. The State was
represented by Addi. Solicitor General, Shri KTS Tulsi. Lengthy arguments
were advanced by the learned counsel to sustain the stands taken by them.
We put on record our appreciation for the able assistance rendered by all. B
5. The appeals call for examination of three questions of law. These
are :
(a) What are the ingredients of "criminal conspiracy", as defined
in Section 120-A of the Penal Code ?
C
(b) When can charge be framed ?
(c) What is the effect of repeal of TADA?
After understanding and explaining the legal position, we would D
examine the cases of individual appellants and would see whether any of
them deserves to be discharged. We would then express our view whether
bail of Thapa has to be cancelled and whether Moolchand has to be
released on bail.
Essential ingredients of crinzinal conspiracy :
7. It would be apposite to note at the threshold that sections 120-A
and 120-B, which are the two sections in Chapter V - A of the Code, came
to be introduced by Criminal Law Amendment Act of 1913. The Statement
of Objects and Reasons stated that a need was felt for the same to make
conspiracy a substantive offence. In doing so the common law of England
was borne in mind.
8. Section 120-A defines criminal conspiracy as below :
E
F
"120-A. Definition of criminal conspiracy : When two or more. G
persons agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy :
H
A
B
c
D
E
196
SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
Provided that no agreement except an agreement to commit an
offence shall an1ount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agree1nent in pursuance thereof.
Explanation : It is immaterial whether the illegal act is the ultimate
object of such agreement, or is merely incidental to that object".
9. This definition shows that conspiracy consists in either doing an
illegal act or a legal act by illegal means. Shri Tulsi emphasised that we
should bear in mind the illegality of means as well. Group action being
apparently involved, it \Vas urged that division of performances in the chain
of actions as happens in smuggling of narcotics should also be taken note
of by us. The Addi. Solicitor General was at pains in contending that
protection of the society from the dangers of concerted criminal activity
may not be lost sight of by us.
10. Shri Ram .I ethmalani, who addressed us principally on the questions of law involved, filed a con1pilation of relevant decisions for our
benefits, wherein the essential ingredients of criminal conspiracy have been
spelt out. The decisions mainly relied by the learned counsel are R. v.
Howkesley, (1959) Criminal Law Report 210 and People v. Lauria, 251
California Appeal 2d 471. Some assistance is derived from a judgment of
this Court in Natwarlal Shankarlal Mody v. State of Bombay, {1961) Bombay
Law Report 661. The only other foreign decision we would be required to
note is United States v. Feola, 420 US 671, referred to on behalf of the
State. We would finally see what was held by a two Judge Bench of this
p
Court in Ajay Aggarwal v. Union of India, [1993] 3 SCC 609 strongly relied
on by Shri Tulsi.
11. The thrust of Shri Ram Jethmalani's argument is that to find a
person guilty of conspiracy there has to be kn.ow/edge of either commission
of any illegal act by a co-conspirator or taking recourse to illegal means by
G the co-conspirator, along with the intent to further the illegal act or
facilitate the illegal means. Though at one stage the learned Addi. Solicitor
General sought to contend that knowledge by itself would be enough, he,
on deeper thought, accepted that this would not be. But then, according
to him, at times intent may be inferred from knowledge, specially when no
H legitimate use of goods or services in question exists. To sustain this
STATE v. S.N. THAPA[l-!ANSARIA,.T.]
197
submission, he also relied on Laruia's case. He has added a rider as \Vell.
The same is that so far as knowledge is concerned, the prosecution, in a
case of present nature cannot be called upon to establish that the conspirator had knowledge that the goods in question would be used for
blasting of bombs at Bombay. This follows, according to the Addi. Solicitor,
from the decision of the United State Surireme Court in Feola.
12. Let us first see what was held in Hawkesley. The facts of that case
are that the accused was a partner with Z in a small taxi business. A and
B, two young men with some previous criminal record, who were fairly well
known to Z but less well known to the prisoner, H, persuaded H to drive
them on credit from the taxi office in the centre of the city at about 12.25
a.m. a distance of about five miles to the outskirts of the city. H did not
know that either A or B had criminal record>. On the journey A and B
informed H that the purpose of the journey was to break into a golf club.
H dropped A and B near the golf club and a police officer overheard one
A
B
c
of them say, "We will want you back in about an hour". H never did return D
to the golf club but returced to the city where he drove some other fares
which had been previously booked after which he went home taking his
taxi with him.
A and B ran away from the golf club on being disturbed by the "police
and were later arrested together. A and B were charged with being in
E
possession of house-breaking implements by night and A, B and H were
charged with conspiracy to break and enter the club. A and B pleaded
"guilty'' to both counts and H pleaded "not guilty" to the count of conspiracy
against him. When A and B were arrested a torch which was usually kept
in the taxi was found in their possession. H made a statement to the police F
in writing in which he said that on the journey he learnt that A and B were
"Going to do the club".
13. The evidence as to how a torch came into possession of A and B
was conflicting. There was no evidence that the accused knew, until the G
journey in the taxi had begun, that A and B intended to commit a criminal
offence or that he had any reason to suspect that they intended to do so.
It was, therefore, held that there was no evidence as to conspiracy because
of lack of evidence that the accused and A and B were acting in concert
or had agreed t1gether to commit a criminal offence. It is brought to our
notice that this Court in Natwar Lal's case (supra) had also held that H
A
B
c
D
E
F
G
H
198
SUPREME COURT REPORTS [1996] SUPP. l S.C.R.
knowledge of conspiracy is necessary as appears from what was staled at
page 667 of the Report. Shri J cthmalani, therefore, submits that mere
knowledge that somebody would commit an offence would not be sufficient
to establish a case of criminal conspiracy, unless there be evidence to show
that all had acted in concert or had agreed together to commit the offence
in question.
14. The discussion in Lawia is more illuminating and its importance
lies in the fact that learned counsel of both the sides have sought to place
reliance on this decision. Fleming, J., who decided the case, was confronted
with two leading cases of the United States Supreme Court pointing in
opposite directions - one was that of United States v. Falcone, 311 US 205
wherein sellers of large quantities of sugaryeast and canes were absolved
from participation in a conspiracy among distillers who bought from them.
In Direct Sales Co. v. United States, 319 US 703, however, a wholesaler of
drugs was convicted of conspiracy to vacate the federal narcotic laws by
selling drugs in quantity to a co-accused physician who was supplying them
to addicts. The distinction between these two cases appeared primarily
based on the proposition that distributors of such dangerous products as
drugs are required to exercise greater discrimination in conduct of their
business than are distributors of innocuous substances like sugar and yeast.
Fleming, J., therefore, observed that in Falcone the sel;er's knowledge of
the illegal use of the goods was insufficient by itself to make the seller privy
to a conspiracy with the distillers who bought from them, whereas in Direct
Sales, the conviction was affirmed on showing that the drug wholesaler had
actively promoted the sale of the drug (morphine sulphate) in quantity and
had sold the same to a physician who practised in a small town - the
quantity being 300 times more than the normal requirement of the drug.
15. The following quotations in Lauria from the decision in Direct
Sales is very pertinent :
"All articles of commerce may be put to illegal ends, ..... But
all do not have inherently the same susceptibility to harmful and
illegal use ...... this difference is important for two purposes. One
is for making certain that the seller knows the buyer's intended
illegal use. The other is to show that by the sale he intends to
further, promote and cooperate in it. This intent, when given effect
by overt act, is the gist of conspiracy. While it is not identical with
STATE v_ s_N_ THAl'A [I-IANSAIUA, J_]
199
mere knowledge that another proposes unlawful action, it is not A
unrelated to such knowledge __ ,, ___ The step from knowledge to
intent and agreement may be taken. There is n1ofc than suspicion,
more than knowledge, acquiCscencc, ccrcle.ssncss, indifference,
lack of conern. There is informed and interested co-operation,
stimulation, instigation''.
16. The learned .T udge, after examining the precedent in the field,
hereafter held that sometimes, but not always, the criminal intent may be
inferred from the knowledge of the accused of the unlawful use made of
the goods in question. He gave two illustrations to bring home the point,
one of which is that the intent may be inferred from knowledge, when no
legitimate use for the goods or services exists. Being of this view, Fleming,
J. held that the respondent before him (Lauria) had knowledge of the
criminal activities of the prostitutes, and the same was sufficient to charge
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him with that fact, even though what Lauria had manifestly done was
allowing them, who were actively plying their trade, to use his telephone.
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The prosecution in that case had attempted to establish conspiracy by
showing that Lauria was well aware that his co-defendants were prostitutes,
who had received business calls from customers through his telephone
answering service, despite which Lauria continued to furnish them with
such service. This action of Lauria was regarded as sufficient to hold that
he had conspired with the prostitute to further their criminal actifity.
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17. The Additional Solicitor General has, according to us, stolen a
march over the counsel for the accused because of what was stated in
Lauria's case, as he is undoubtedly right in submitting that ROX, or for
that matter bombs, cannot be put to any legitimate use but only to iiF
legitimate use; and it is RDX or bomb which was either handled or allowed
to slip by the accused before us. So, this act by itself would establish the
intent to use the goods for illegitimate purpose.
18. Another decision to come to the assistance of the prosecution is
Feola. This decision of the United States Supreme Court is important G
because the issue presented in that case was whether knowledge that the
intended victim was a federal officer essential to establish crime of conspiracy under the relevant penal provision which made an assault upon a
federal officer while engaged in the performance of his official duties, an
offence. Justice Blackmun, who delivered the opinion for the majority, held H
200
SUPREME COURT REPORTS [1996] SUPP. I S.C.R.
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that in so far the substantial offence is concerned, to answer the question
of individual guih or innocence, awareness of the official identity of the
assault victim is irrelevant. It \Vas observed that the S(:.lffiC has to obtain \Vith
respect lo conspiracy.
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19. What had happened in Feola was that he and his confederates
had arranged for sale of heroin to buyers, who turned out to be undercover
agents for the Bureau of Narcotic and Dangerous Drugs. The planning of
the group was to palm off on the purchasers, fur a substantial sum, a form
of sugar in place of heroin and, should that ruse fail. simply to surprise
their unwitting buyers and relieve them of the cash they had brought along
for payment. The plan failed when one agent on a suspicion being aroused,
dre\v his revolver in time to counter an assault upon another agent from
the rear. So, instead of enjoying the rich benefits of a successful swindle,
Feola and his associates found themselves charged, to their undoubted
surprise, \Vith conspiring to assault and assaulting federal officers.
20. The plea taken by Feola was that he had no knowledge of the
victim's official identity and as such he could not have been guilty of
conspiracy charge. The Court was, therefore, first required to find out
whether for the substantive offence of charge envisaged by the punishing
section, awareness of the official identity of the victim was relevant; and
the majority answered the question in negative, because the offence consisted in assaulting a federal officer on duty; and undoubtedly there was an
assault and the victim was a federal officer on duty. The further step which
the majority took, and with respect rightly, was that the same logic would
apply with respect to conspiracy offence.
21. The Additional Solicitor General has thus a point when he
contended that to establish the charge of conspiracy in the present case, it
would not be necessary to establish that the accused knew that the ROX
and/or bomb was/were meant to be used for bomb blast at Bombay, so lung
as they knew that the material would be used for bomb blast in any part
G of the country.
22. As in the present case the bomb blast was a result of chain of
actions, it is contended on behalf of the prosecution, on the strength of this
Court's decision in Yash Pal Mittal v. State of Punjab, (1977] 4 SCC 540,
H which was noted in para 9 of Ajay Aggarwal's case, that of such a situation
•
STATE v. S.N. THAPA[HANSARIA.J.]
201
there may be division of performances by plurality of means sometimes A
even unknown to one another; and in achieving the goal several offences
may be committed by the conspirators even unknown to the others. All that
is relevant is that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the conspiracy, even though
there may be sometimes misfire or over-shooting by some of the conB
spirators.
23. Our attention is pointedly invited by Shri Tulsi to what was stated
in para 24 of Ajay Agganva/'s case wherein Ramaswamy, J. stated that the
law has developed several or different models or technique to broach
the scope of conspiracy. One such model is that of a chain, where each
party performs even without knowledge of the other, a role that aids
succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of
procuring and distributing narcotics or an illegal foreign drug for sale
in different parts of the globe. In such a case, smugglers, middlemen,
retailers are privies to a single conspiracy to smuggle and distribute
narcotics. The smugglers know that the middlemen must sell to retailers;
and the retailers know that the middlemen must buy from importers.
Thus the conspirators at one end at the chain know that the unlawful
business would not, and could not, stop with their buyers, and those at
the other end know that it had not begun with their settlers. The action
of each has to be considered as a spoke in the hub - there being a rim to
bind all the spokes together in a single conspiracy.
24. The aforesaid decisions, weighty as they are, lead us to conclude
that to establish a charge of conspiracy knowledge about indulgence in
either an illegal act or a legal act by illegal means is necessary. In some
cases, intent of unlaWful use being made of the goods or services in question
may be inferred from the knowledge itself. This apart, the prosecution has
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not to establish that a particular unlawful use was intended, so long as the
goods or service in question could not be put to any lawful nse. Finally, G
when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had the knowledge of what the
collaborator would do, so long as it is known that the collaborator would
put the goods or service to an nnlawful use.
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SUPREME COURT REPORTS {19%\ SUPP. 1 S.C.R.
H1zen can ch111ge be framed '!
25. This legal question is not as knotty as the first one. This is for the
reason that there are clinching decisions of this Court on this aspect of the
n1atter.
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26. Shri Rani Jeth1nalani hil.s urgi..:<l that despite some variation in the
language of three pairs of sections, which deal with the question of framing
of charge or discharge, being relatable to either a sessions trial or trial of
\Varrant case or sun1n1ons case, ultimately converge to a single conclusion,
namely that a p1ima facie case must be made out before charge can be
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framed. This is what was stated by a two-Judge Bench in R.S. Naik v. A.
Antulay, [1986\ 2 SCC 716.
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27. Let us note the three pairs of sections Shri Jcthmalani has in
mind. These are sections 227 and 228 in so far as sessions trial is concerned; sections 239 and 240 relatable to trial of warrant cases; and sections
245(1) and (2) qua trial of summons case. They read as below :
"Section 227 : Discharge - If, upon consideration of the record of
the case and the documents submitted therein, and after hearing
the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record
his reasons for so doing.
Section 228 : Framing of Charge - (1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an offence
which-
(a) is not exclusively triable by the Court of Session, he may
frame a charge against the accused and, by order, transfer the case
for trial to the Chief Judicial Magistrate, and thereupon the Chief
Judicial Magistrate shall try the offence in accordance ·mth the
procedure for trial of warrant-cases instituted on a police report;
(b) is exclusively trial by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
STATE v. S.N. THAPA[HANSARIA,J.]
203
I
sub-section (1), the charge shall be read and explained to the A
accused and the accused shall be asked whether lie pleads guilty
of the offence ch.arged or claims to be tried.
(Emphasis supplied)
s.ecti~n 239 : When accused shall be discharged) .If'. up.on conB
s;denng the police report and the document sent with 1t under
Section 173 and making such examination, if any, of the accused
as the Magistrate thinks necessary and after giving the prosecution
and the accused an opportunity of being heard, the Magistrate
considers the charge against the accused to be groundless, he shall C
discharge the accused, and record his reasons for so doing.
Section 240 : Framing of charge - (1) if, upon such consideration,
examination, if any, and hearing the Magistrate is of opinion that
there is ground for presuming that the accused has committed an D
offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the
accused.
(2) The charge shall then be read and cxplamed to the accused, E
and he shall be asked whether he pleads guilty of the offence
charged or claims to be tried.
Section 245 : When accused shall be discharged - ( 1) If, upon
taking all the evidence referred to in Section 244, the Magistrate F
considers, for reasons to be recorded, that no case against the
accused has been made out which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate
from discharging the accused at any previous stage of the case if, G
for reasons to be recorded by such Magistrate, he considers the
charge to be groundless."
28. Before adverting to what was stated inAntulay's case, let the view
expressed in State ofKamataka v. L. Muniswami, [1977] 3 SCR 113 be H
204
SUPREME COURT REPORTS [1996] SUPIP. 1 S.C.R.
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noted. Therein, Chandrachud, .I. (as he then· was) speaking for a three
Judge Bench stated at page 119 that at the stage of framing charge the
Court has to apply its mind to the question whether or not there is any
ground for presuming the commission of the offence by the accused. As
framing of charge affects a person's liberty substantially, need for proper
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consideration of material warranting such order was emphasised.
29. What was stated in this regard in Stree Atyachar Virodhi
Pmishad's case, which was quoted with approval in paragraph 78 of State
of West Bengal v. Mohd. Khalid, [1995] 1 SCC 684 is that what the Court
C has to see, while considering the question of framing the charge, is whether
the material brought on record would reasonably connect the accused with
the crime. No more is required to be inquired into.
30. In Antulay's case, Bhagwati, 0., opined, aftec noting the difD ference in the language of the three pairs of section, that despite the
difference there is no scope for doubt that at the stage at which the Court
is required to consider the question of framing of charge, the test of "prima
facie" case has to be applied. According to Shri Jethmalani, a p;ima facie
case can be said to have been made out when the evidence, unless rebutted,
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would make the accused liable to conviction. In our view, better and clearer
statement of law would be that if there is ground for presuming that the
accused has committed the offence, a court can justifiably say that a prima
facie case against him exists, and so, frame charge against him for committing that offence".
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31. Let us note the meaning of the word "presume". In Black's Law
Dictionary it has been defined to mean "to believe or accept upon probable
evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has
been mentioned that in law "presume" means "to take as proved until
G
evidence to the contrary is forthcoming", Stroud's Legal Dictionary has
quoted .in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved
by direct testimony) as to the truth of a fact alleged." (Emphasis supplied).
In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at
H page 1007 of 1987 edition.
STATE v. S.N. THAPA [HANSAfUA,J.J
205
32. The aforesaid shows that if on the basis of materials on record,
A
a court could come to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists. To put it
differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the
conclusion is required lo be that the accused has committed the offence.
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It is apparent that al the stage of framing of charge, probative value of the
materi<1ls on record cannot be gone into; the materials brought on record
by the prosecution has to be accepted as true at that stage.
W7wt is the effect of lapse of TADA ?
33. In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA having lapsed, section 1(4) which
saves, inter alia, any investigation instituted before the Act expired, itself
lapsed, because of which it is not open to the prosecution to place reliance
on this sub-section to continue the proceeding after expiry of TADA.
34. We find no force in the aforesaid submission and would refer in
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this connection to a recent three-Judge Bench decision of this Court in
Mohd. Iqbal v. State of Maharashtra, JT (1996) 1 SC 114, in which it has
been clearly held that in view of section 1( 4) of the Act, the framers of the
E
Act had desired that even after its expiry, the proceeding initiated under
the Act should not come to an end without the final conclusion and
determination, which have, therefore, to be continued in spite of the expiry
of the Act. According to the Bench, there is indeed no scope for a
controversy as to ~.1hether any investigation, inquiry, trial in respect of any
F
offence alleged unJer TADA shall come to end as sub-section ( 4) of
section (l) protects and keeps alive such investigation and trial.
FACTUAL ASPECTS OF THE APPEALS
35. The legal question having been examined, we may advert to the · G
facts of each appellant to decide whether a plima facie case against him
exists, requiring framing of charge, as has been ordered. Before we undertake
this exercise, it may be pointed out that the learned Dcsii,'llated Court in his
impugned judgment, instead of examining the merits of the prosecution case
qua the charged accused, has given reasons as to why he discharged 26 H
206
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
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accused. A grievance has, therefore, been ffiade by all the learned counsel
appearing for the accused that this was not the legal approach to be
adopted. We find merit in this grievance inasmuch as the impugned order
ought to have shown that the Designated Court applied its judicial mind
to the material' placed on record against the charged accused. This was
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necessary because framing of charge substantially affects the liberty of the
concerned person. Because of the large number of accused in the case (and
this number being large as regards charged accused also), the court below
might have adopted the approach he had done. But we do not think it was
right in doing so.