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TMI Blog1996 (4) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ow 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 ₹ 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 well wishers 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s done by one or more parties to such agreement 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 was 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 Addl. 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 Jethmalani, who addressed us principally on the questions of law involved, filed a compilation 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) Cri LR 210 and People v. Lauria, 251 Cal 2d 471. Some assistance is derived from a judgment of this Court in Natwarlal Shankarlal Mody v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing disturbed by the police and were later arrested together. A and B were charged with being in 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 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 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 together to commit a criminal offence. It is brought to our notice that this Court in Natwar Lal's case (supra) had also held that knowledge of conspiracy is necessary as appears from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness , indifference, lack of concern. There is informed and interested co-operation, stimulation, instigation. 16. The learned Judge, 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 him with that fact, even though what Lauria had manifestly done was allowing them, who were actively plying their trade, to use his telephone. The prosecution in that case had attempted to establish conspiracy by show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 RDX and/or bomb was/were meant to be used for bomb blast at Bombay, so long as they knew that the material would be used for bomb blast in any part 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unlawful use. When can charge 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 matter. 26. Shri Ram Jethmalani has urged 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 warrant case or summons case, ultimately converge to a single conclusion, namely that a prima facie case must be made out before charge can be framed. This is what was stated by a two-Judge Bench in R.S. Naik v. A. Antulay, 1986CriLJ1922 . 27. Let us note the three pairs of sections Shri Jethmalani 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to in Section 244, the Magistrate 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, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 28. Before adverting to what was stated in Antulay's case, let the view expressed in State of Karnataka v. L. Muniswami 1977CriLJ1125 be noted. Therein, Chandrachud, J. (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 consideration of material warranting such order was emphasised. 29. What was stated in this regard in Stree Atyachar Virodhi Parishad's case, which was quoted with approval in paragraph 78 of State of West Bengal v. Mohd. Khalid AIR1995SC785 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 this connection to a recent three-Judge Bench decision of this Court in Mohd. Iqbal v. State of Maharashtra, [1996]1SCR183 , in which it has been clearly held that 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, 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 whether any investigation, inquiry, trial in respect of any offence alleged under TADA shall come to end as Sub-section (4) of Section (1) protects and keeps alive such investigation and trial. FACTUAL ASPECTS OF THE APPEALS 35. The legal question having been examined, we m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes, Pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and destruction of private and public properties and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunition, detonators, handgranades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapon training in Handling of arms, ammunitions and explosives to terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al conspiracy by booking their tickets out of your own funds through M/s. Hans Air Services which was done by your firm M/s. Abu Travels and that you thereby committed an offence punishable under Section 3(3) of TADA (P) Act, 1987 and within my cognizance. 38. The aforesaid shows that the individual charge against Abu is that he had done the act of booking the tickets of the persons named in the charge; and this was done from his own funds through M/s. Hans Air Services. Learned Addl. Solicitor General states that the financial assistance by this appellant would attract the mischief of Section 3(3) of TADA which, inter alia, punishes abetment of a terrorist act. This would be so because of the enlarged definition of abet as given in Section 2(1)(a), whose Clause (iii) makes rendering of any assistance, whether financial or otherwise, to a terrorist, an act of abetment. Our attention is also invited to Section 21(2) which has provided that in a prosecution for an offence under Section 3(3) of the Act, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the air journey of the 11 persons was financed by this appellant. The learned counsel has also submitted that as the Bombay Police had not asked Shamim during interrogation about the source of money which had been paid to Hans Air Services, Shamim had made no statement regarding that, which he had subsequently made when interrogated by the C.B.I. Another contention to be advocated is that if the action of booking the tickets in question would have been a part of tainted activity, the sum of ₹ 73,000 would not have been transmitted to Hans Air Services through drafts. 41. Though it appears intriguing as to why only part of the money was sent through bank and that too by more than one draft, the aforesaid facts brought to our notice by Shri Rajender Singh do show that the only incriminating material, namely, crediting the amount of ₹ 9,939 in the account of the appellants' firm in the books of M/s Hans Air Services, is a weak circumstance to say that the appellant might have abetted the offences in question, which is the real charge against him. We may state that as framing of charge affects a person's liberty substantially, as pointed out in Muniswamy's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ammunition, handgranades and explosives which were brought in motor vehicles and which were parked in your compound at the instance of your co-accused Yakoob Abdul Razak Memon and, therefore, you were in possession of these arms, ammunition, hand granades and explosives unauthorisedly in Greater Bombay with an intent to aid terrorists by contravening the provisions of Arms Act, 1959, Explosives Act, 1884, Explosives Substances Act, 1908 and Explosives Rules, 1983 and thereby you committed an offence Punishable under Section 6 of TADA Act, 1987 and within my cognizance. AND I HEREBY direct that you all be tried by me on the said First Charge and Charges framed for the overt acts committed by you in course of the same transaction i.e. in pursuance of the conspiracy. 44. A perusal of the aforesaid charge shows that the allegation against Amjad is that he had permitted co-accused Yakoob Abdul Razak Memon to park motor vehicles laden with arms, ammunition and explosives in his premises; and that he was in possession of the same. Shri Tulsi contends that this possession was conscious and as such in view of what has been held by the Constitution Bench in Sanjay Dutt's case, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted in Bombay and its suburbs on 12.3.1993 by agreeing to do and by doing the following overt acts : (a) That you are a close associate of Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon; (b) That you participated in smuggling, landing and transportation of arms, ammunition and explosives (RDX) which were smuggled into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates which landed at Shekhadi on 3rd and 7th February, 1993 by sending your men and 4 jeeps for facilitating landing, transportation and distribution of arms, ammunition and explosives; (c) That you lent Motor Scooter No. MP-14-B-5349 which was purchased by you in the name of your ex-employees P.B. Bali to Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates which was planted as Motor Scooter Bomb at Katha Bazar on 12.3.1993 and exploded at about 14.15 hours resulting in death of 4 persons, inuring 21 and huge loss of property worth 40 lacs; and that you thereby committed an offence punishable under Section 3(3) of the TADA (P) Act, 1987 and within my cognizance. 48. Shri Tulsi has urged that there are sufficient materials on record to bring home the aforesaid charge. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent persons in this regard tending to support the above. 49. The sole submission of Shri Jethmalani was that even if this appellant had knowledge about transportation of arms, ammunition and RDX brought by Tiger Memon, it cannot be held in law that he played a part in the conspiracy, and so, the charge under Section 3(3) of the Act has to fail. The materials do not establish even abetment. We are afraid this submission cannot be accepted because of the concept of conspiracy explained by us above. Any reasonable person knowing about transportation of materials like RDX has to be imputed the intent of its use for illegal purpose - there being no material to show that RDX can be put to any legal use. Further, as already held, the prosecution has no obligation under the law to establish that the appellant 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. The alleged fact that the jeeps provided by the appellant had cavities to conceal arms, ammunition and RDX, and that the jeeps were recovered at the instance of the appellant on 1.6.1993 in which were found traces of RDX, would prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Collector of Customs, Preventive, Bombay and particularly during the period January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and knowingly facilitated the commission of terrorists' acts and acts preparatory to terrorists' act i.e. bomb blast and such other acts which were committed in Bombay and its suburbs on 12.3.93 by intentionally aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohmed Dosa, Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non interference inspite of the fact that you had specific information and knowledge that arms ammunition and explosives are being smuggled into the country by terrorists and as Additional Collector of Customs, Preventive you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (P) Act, 1987 and within my cognizance. 53. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Behan Phata on MhaslaGoregoan Road leaving another route open for the escape of smuggled goods. He did not keep Nakabandi at the pre-arranged point. He lifted the Nakabandi after two days without any specific reasons. The source later on informed Thapa through Mhatre that on the night of 3.2.93 instead of silver some chemicals had landed at Shekhadi. Sh. Thapa did not contact the source to ascertain further details. Nor did he informs about it to his senior officers. He also did not submitted the Operations Report, as was required. (v) Statement of Sh. R.K. Singh. Shri R.K. Singh in his confession, has stated that on the night of 1.2.93 at about 2.00 A.M. Sh. Thapa gave him a telephonic message saying that something had happened beyond Bankot in the limits of Pune Customs and that he should personally verify. R.K. Singh, deputed custom officers for this job. On 4.2.93 another accused M.S. Syed, Customs Superintendent informed R.K. Singh that the smuggled goods and already passed. R.K. Singh received ₹ 3 lacs as illegal gratification for the landing out of which he gave ₹ 1 lac to Sh. S.N. Thapa. (vi) Awareness about landing : Sh. S.K. Bhardwaj, Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapa and other customs officers. 54. From the above gist it appears that the main allegation to establish the case against Thapa is his allowing the smuggling of the aforesaid goods by not doing Nakabandi at the pre-arranged point but at some distance therefrom leaving an escape route for the smugglers to carry the goods upto Bombay. To appreciate this case of the prosecution, it would be useful to know the topography of the area, as would appear from the following rough sketch handed over by Shri Tulsi: (Editor: The rough sketch has not been reproduced. Please write to [email protected] if the rough sketch is required.) 55. Shri Tulsi contended that Thapa had been forewarned by a communication of Shri S.K. Bhardwaj, Collector of Customs (Preventive) dated 25.1.93 addressed to S/Shri R.K. Singh and A.K. Hassan, Asstt. Collectors of Customs, that intelligence had been received that big quantity of weapons would be smuggled into India by ISI alongwith gold and silver which were likely to land in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc., a copy of which was endorsed to Thapa, who had seen the same. In fact he disclosed this information to his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hata, at which places trap was in fact laid. But then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba-Goregoan junction, because that was the main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently be these Inspectors, as that was under pressure of investigation undertaken subsequently by the C.B.I. We do not think the law permits us to find out at this stage as to which of the two versions given by two Inspectors is correct. We have said so because at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the close of the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at the proper place, as that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay. 58. Shri Shirodkar submitted that the Nakabandi was organised at Purar Phata and Behan Phata also because a trap has to be laid at a little distance from the crucial point so that it may not come to the notice of all and sundry, which may prove abortive, as information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter with a view to finding out whether the evidenced collected in the court of investigation showed his involvement. A perusal of Designated Court's order shows that though according to it a case was made out by the prosecution against Thapa, it took the view that there was want of material which could be tendered as substantive evidence to prove association of Thapa with Tiger Memon and his associates. And so, it allowed Thapa to continue on bail. On these special facts, we are not satisfied if a case for cancellation of bail has been made out, despite our taking the view that charges were rightly framed against him. The State's appeal is, therefore, dismissed. Conclusion 62. To conclude, appeals of Abu Azim and Amjad Aziz Meherbux are allowed and they stand discharged. Appeals of Raju @ Rajucode Jain and Somnath Thapa are dismissed. The appeal of State is also dismissed. 63. Before parting, we may say that alongwith these appeals we had heard the case of one Mulchand Shah, being covered by SLP (Crl.). No. 894 of 1995. But, by an order passed on 31.1.1.996 that SLP had been delinked from these cases, on the prayer of counsel for Shah and was ordered to be li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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