Case: STATE OF MAHARASHTRA Vs. AHMAD SHAH KHAN @ SALIM DURANI AND ANOTHER

contained one AK-56 assault rifle of folding type butt, in rusted 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 on record came to the conclusion as under: 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 clauses 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 recovery 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 possession of contraband articles within the notified area.... 16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery. 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 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 somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that 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. 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 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, 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 Shri Sunil Kumar, learned senior counsel appearing for the Appellant (A-20), that the panch witness was the resident 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, 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 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 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 of the prosecution only on the ground that he had 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. 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 Appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he 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 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 evidence of recovery. 24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 FIRs 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 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 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):9. He had disclosed that he was fully acquainted with Yakub Yeda and the Appellant (A-20). Thus, he was having acquaintance with hardened criminals.Deposition of Mohamed Ayub Mohamed Umar (PW-72)10. He is a panch 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.I. asked him whether he would like to act as a panch witness in a case related to the Bombay Blast. He consented for the same 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 the entire version of the recovery.The witness further deposed that the police party alongwith the accused (A-20) and the panch witnesses proceeded in the police vehicle and towards the place disclosed by the Appellant (A-20) and entered the building pointed out by the Appellant (A-20). 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 were taken out of the said gunny bag. The AK-56 rifle and magazines were separately wrapped in brown paper and three packets were prepared and sealed separately. The packets were signed by him, co-panchas and Shri Sawant.In cross-examination, the witness (PW. 2) said that label put up on the recovered goods had his signature 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. However, 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 the 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 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 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 bears his signature and the signatures of panch witnesses and it was completed 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 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 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 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 (PW-181):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 (PW-356)13. He has deposed that on 17.4.1993, he alongwith 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 in Hindi in the panchnama which was marked as Exh. 378 and is the same panchanama recorded by him about the statement of Appellant (A-20) between 17th 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 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 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 making the disclosure statement, the police had taken the accused alongwith the panch witnesses to a closed workshop named as Bona 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 the same. The panchas alongwith the accused (A-20) and the police party entered the workshop 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 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 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.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 possession of contraband articles within the notified area....16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery.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 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 somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that 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.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 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, 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 Shri Sunil Kumar, learned senior counsel appearing for the Appellant (A-20), that the panch witness was the resident 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, 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 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 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 of the prosecution only on the ground that he had 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.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 Appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he 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 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 evidence of recovery.24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.Confessional Statement of Appellant (A-21):32. His (A-21) confessional statement had been recorded, however, the same had been discarded by the Designated 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 in possession of a Carbine of 30 Caliber of U.S. make, three 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 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, 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 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 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.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. 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 given full 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):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 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 acquiring arms. He also deposed that the office of the Bombay Municipal Corporation was inside the Naryalwadi Kabristan 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.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 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 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 Dirhams and a silver ring were found with him. The inventory 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 (PW-683) and Senior P.I. Shri Kumbhar. It was during his interrogation that Appellant (A-21) expressed his desire to make 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 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 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 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):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, 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 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. This witness further supported the prosecution case that he made a desire to make confession voluntarily etc.37. The recovered material was sent for FSL, and the report Ext. 1940-A was received. According to which US Carbine gun and 28 cartridges sent for FSL were examined. The carbine gun was found in working condition, and it was capable of chambering and firing the cartridges recovered in that offence. So, the report was positive.38. The Appellant (A-21) made a complaint before the Designated Court, and the court directed his medical examination. He was examined and again sent on police remand.39. After appreciating the entire evidence, the learned Designated Court came to the conclusion as under:Since criminal conspiracies are hatched in secrecy and it is extremely difficult to collect the direct evidence about the same the established principles of law indicate that the standard of a proof requiring such type of cases is loosened, unnecessary hard standards regarding the identity of a particular person cant be expected.. ...Thus, considering in proper perspective all the said evidence, no other conclusion will emerge of A-21 having committed all the offences for which he is charged with on the account of commission of overt acts, but the same will lead any prudent man to the legitimate conclusion of A-21 having committed the aforesaid acts for the purposes of furthering the object of conspiracy.45. We have considered rival submissions made by the counsel for the parties and perused the records.46. The confessional statements of Ahmad Shah Khan @ Salim Durani (A-20), Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied upon by the prosecution. The same stood discarded completely by the learned Special Judge on the ground that all the confessional statements had been recorded by the Police officer in utter disregard to the mandatory provisions of Section 15 TADA and Rule 15 of TADA Rules, 1987. The police officer failed to inform the said accused persons while recording their respective statements that they were not bound to make confessional statement and further failed to warn that, in case, they made statements, the same would be used as evidence against them. More so, the required certificate was not attached to the said statements.47. This Court has laid down parameters for interference against the order of acquittal time and again. 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 the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts 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. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.Confessional statement of Nasir Abdul Kader Kewal (A-64):54. In his confessional statement, he (A-64) has revealed that he had been associated in smuggling activities and had been participating in landing and transportation alongwith co-accused. He had earlier worked in Saudi Arabia and after coming back settled in Bombay. His father-in-law Gulam Dastgir used to run the business of Matka at Bandra and thus, he (A-64) also joined the said business. Subsequently, he came in association of the smugglers and started helping them in landing and transportation. He participated in landing and transportation from Shekhadi on 7.2.1993 and said that the associates of Tiger Memon (AA) were present including Appellant (A-31). At the instance of Tiger Memon, the bags of arms and explosives brought from the trawler were loaded in a tempo driven by Appellant (A-31).Confessional statement of Shahnawaz Khan (A-128):55. Confessional statement of Shahnawaz Khan (A-128) revealed that he participated in landing on 7.2.1993. He (A-128) alongwith co-accused brought the smuggled goods at Seashore and they found that two tempos were already parked there. One tempo was being driven by Appellant (A-31). The smuggled goods were being loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA) and Yeda Yakoob (AA) opened the sacks. The accused (A-128) saw that it contained rifles, hand-grenades and bags containing black coloured powder in it. Bullets were also there. Subsequently, those tempos were unloaded at a building with a tower. The goods were reloaded in the cavity of Commander jeeps. The said vehicles (Jeeps) left for Bombay. One tempo though empty followed the jeep.56. Usman Jan Khan (PW-2) identified the Appellant (A-31) in the court. Usman Jan Khan (PW-2) deposed that Appellant (A-31) participated in transportation of smuggled articles. He deposed that on the relevant date they came out of the hotel after having the meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA), were standing near the white coloured tempo which was being driven by Appellant (A-31). Tiger Memon (AA) told Usman Jan Khan (PW-2) to take a seat in the said tempo with the Appellant (A-31). He (PW-2) sat in the tempo and they followed Tiger Memon (AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods had already arrived at the Coast. The same were wrapped in gunny bags. On the instruction of Tiger Memon (AA), the goods were loaded in the two tempos, one of them was being driven by Appellant (A-31). The goods were brought by the said tempo to Wangni Tower and were unloaded there. It was at Wangni Tower that the goods were opened and the witness could see AK-56 rifles, its rounds, handgrenades, pistols, magazines and RDX. They were reloaded in the cavity of the jeeps parked there.57. Padmakar Krishna Bhonsle (PW-62) is the panch witness of the recovery of the vehicle and identified the vehicle recovered by Police Inspector, Anil Prabhakar Mahabole (PW-506). It was recovered at the disclosure statement of the Appellant (A-31).58. Ajit Shivram Surve (PW-604), the Police Officer attached with DCB, CID who had been sent to get the samples prepared on 30.11.1993 by P.I. Shri Pharande, and he corroborated the incident of collection of samples as described by Asit Binod Ghorai (PW-602). He also named 3 persons who collected the samples as Kulkarni, Malve and Surve. He (PW-604) further deposed that he prepared the panchnama which was duly signed by the panch witnesses.59. One application u/s 457 of Code of Criminal Procedure, 1973 was filed by the Appellant (A-31) before the Designated Court for release of the tempo and the same was allowed. However, the court passed the order that the vehicle should be thoroughly examined by experts as to whether it contained any traces of the RDX. It was in view thereof, 3 experts took samples on 30.11.1993 and the report dated 12.1.1994 detected traces of RDX. This was corroborated by panch witness, Asit Binod Ghorai (PW-602).60. After conclusion of the trial, the learned Special Judge came to the conclusion that considering the confessions of the co-accused, Nasir (A-64) and Shahnawaz (A-128), as well as the statement made by Usman (PW-2) there can be no conclusion other than the fact that the Appellant (A-31) was involved in the Shekhadi landing and the transportation operation.66. We have considered the rival submissions made by the learned Counsel for the parties and perused the evidence on record.67. The learned Special Judge dealt with the issue and came to the conclusion that in spite of the fact that the Respondent (A-31) transported the contraband in his tempo and took the same to a far distance but there was nothing on record to show that he had knowledge of the kinds of goods transported in his tempo.68. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.69. From the evidence on record, it becomes clear that Yusuf Khan Kasam (A-31) had participated in landing operation of contraband goods at Shekhadi as he was one of the persons who accompanied Tiger Memon and Ors. and he had also been to Wangni Tower alongwith other associates and contraband material were loaded in tempo. The tempo was taken by him alongwith absconding accused to Mumbra as instructed by Tiger Memon (AA). This version is duly supported/corroborated by Shah Nawaz Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW-2). However, there is nothing on record to show that he was aware as of what kinds of contraband were being transported in his tempo.79. The evidence against the Appellant (A-30) is his own confession made on 12th/15th of July, 1993. He has stated throughout that he was a landing agent and involved in smuggling. However, he had no knowledge that arms were being smuggled and he participated in the same, taking it to be smuggling of silver only. The confessional statements of co-accused do not speak of the knowledge of the Appellant (A-30) regarding the smuggling of arms and they too, have only deposed about smuggling of silver.In view of the discussion in Criminal Appeal No. 1728 of 2007, the date of the recording of the confession has no bearing so long as the accused are being tried for the same crime in the same trial. After the amendment, confessional statement of co-accused Jamir Sayyed Ismail Kadri (A-133), Salim Kutta (A-134) and Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133) stated in his confession on the basis of hearsay that his brother Shabbir had told him that arms would be smuggled into the city, and that the same was also within the knowledge of the Appellant (A-30).His confessional statement was recorded by A.K. Chandgude, Deputy S.P. (PW-670) wherein the Appellant (A-30) has stated that he was well acquainted with other smugglers like Mohd. Dossa (AA) and Mechanic Chacha (A-136), and he had been acting as a landing agent in smuggling activities for these smugglers, for a long time. He (A-30) had also participated alongwith the other co-accused like Salim Kutta (A-134) and Mechanic Chacha (A-136) in the smuggling of contraband and in providing landing and transportation facilities on 3.12.1992.On 4.12.1992, he was contacted by Assistant Collector (Customs) R.K. Singh (A-102) through a Customs Sepoy. On reaching there at 8:00 p.m., R.K. Singh, Assistant Collector, Custom (A-102) called him in the cabin and asked about the landing that had been made on the previous day upon replying he was told to wait with Custom Inspector Gurav (A-82). He (A-30) went to Mohd. Dossa on 5.12.1992 and explained to him, and to Mechanic Chacha (A-136), the entire incident. Mechanic Chacha (A-136) gave him (A-30), some money to be paid to the Mhasla Custom Staff, the Shrivardhan Custom Staff, the Murud Custom Staff and also to R.K. Singh (A-102). On the same day he (A-30) handed over the money to some of them.Subsequently, it was revealed that the rates that were to be paid to the police officers as well as the customs officers per landing were fixed, and were also revised from time to time, and the Appellant (A-30) had been very much involved in making the payment.Therefore, it is clear that he (A-30) enjoyed a higher status in the hierarchy of the gang of smugglers, and that he had been assigned an important role of negotiating with customs officers and police officers, to remove any hindrance in the said smuggling. It is also clear that payments were made through him (A-30).The Appellant (A-30) confessed, that on 9.1.1993 he, alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha (A-136) had participated in the landing of smuggled goods and when they were coming to Dighi Jetty, on the way he had also met Gurav (A-82), who was driving his jeep. Thereafter, their vehicles were intercepted by Patil (A-116) an Inspector, near Gondghar Phata. In order to negotiate a safe passage for the smuggled goods, Mechanic Chacha (A-136) offered him a sum of Rs. 10 lakhs, and when they were asked about the contents of the wooden boxes, Mechanic Chacha (A-136) stated that the same contained watches. On the said day, they had no cash and, therefore, Mechanic Chacha (A-136) took out five silver bricks from the first truck and gave them to Shri Patil, SI of Shrivardhan. The Appellant (A-30) drove Guravs jeep (A-82) and came to Kanghar. There they shifted 170 bricks in the cavities of two trucks from Bombay. After loading the smuggled goods in the truck, the Appellant went to Shabbirs residence alongwith Salim Kutta (A-134), Feroz and the driver. They removed 80 bricks from the cavity of the first truck from Bombay, and placed them in this truck. The Appellant (A-30) left a message at the residence of Patil (A-116), stating that he would come with money on the night of the 10th of the month. Thus, he (A-30) subsequently met the said S.I. and it was decided that he would pay a sum of Rs. 5 lakhs to the Havaldars and Rs. 2 lakhs to the SI separately, and the said amount was paid by the Appellant (A-30).Further, in his confessional statement he has revealed that the truck bearing No. MH-06-5533 which was used on 9.1.1993 did not belong to him. One Dilip Hegiste was the registered owner of the said vehicle.Thus, it is clear that in his confessional statement, the Appellant (A-30) does not say anything to the effect that he had no knowledge with respect to the smuggled arms.Confessional statement of Janardhan Pandurang Gambas (A-81):80. In his confessional statement he has revealed the presence of the Appellant (A-30) and also has deposed about his (A-30) participation in the landing and transportation of the smuggled goods. However, the goods were silver and gold, and it was the Appellant (A-30) who had taken the said witness for the landing. He has stated that in addition to the silver and gold and rods kept in the gunny bags, there were 30 black military coloured boxes which were unloaded from the trawler and Mechanic Chacha (A-136) cautioned the labourer to handle the same with care, as the goods were made of glass.Confessional statement of Jaywant Keshav Gurav (A-82):81. He was working in the Customs Department at Mahad, and it was his job to prevent illegal smuggling along the sea coast and to nab the smugglers by gathering secret information against them, and further, to register cases against the smugglers. He (A-82) has stated that he had been helping smugglers by taking bribes and facilitating their landing and also the transportation of the smuggled goods. He had a settlement with Rahim Laundriwala that he would be paid Rs. 1,60,000/- for silver landing and that the witness would be informed of such landings in advance. The Appellant (A-30) had met him in June 1992 and told the witness that he was a landing agent working at Dighi Jetty and that he had informed him (A-82) that there would be landing at Dighi Jetty of silver, by Mohd. Dossa. The smuggled goods would come from Dubai and he (A-82) would be paid Rs. 65,000/- for the said landing and Appellant (A-30) had paid him this money after passing the said smuggled goods. This witness has corroborated the confessional statement of the Appellant (A-30).In respect of the incident dated 3.12.1992, i.e. his meeting with R.K. Singh, Assistant Collector, Customs (A-102) where he had bargained for a higher amount, as R.K. Singh (A-102) had told him (A-82) that he must go to the Appellant (A-30) and bring back a sum of Rs. 2.5 lakhs. After discussing the same with the Appellant, he (A-82) went to Bombay and here he was paid Rs. 2.5 lakhs which was to be paid to R.K. Singh (A-102) and Rs. 1.5 lakhs was to be paid to the Superintendent. He collected this money and paid the same to the said officers.In respect of the incident dated 9.1.1993 the witness revealed that he had been informed by R.K. Singh (A-102) that on the said day, Mohd. Dossa would smuggle the goods and that the landing would take place at Dighi Jetty and that he (A-82) must assist him. On that day, the Appellant met this witness and informed him regarding the landing that would take place at the night at Dighi Jetty and has thus corroborated the confessional statement of the Appellant (A-30) to the extent that they had in fact met in the said manner and that it was the Appellant (A-30) who had negotiated with Patil (A-116). It has further been revealed that the Appellant (A-30) had driven the car of A-82.Confessional Statement of Mohd. Sultan Sayyed (A-90):82. He is S.P. Raigad. In his confessional statement he has corroborated the version of events provided by the Appellant, regarding the association of the smugglers with R.K. Singh, Assistant Collector (A-102) and making regular payments of illegal gratification. He has also stated that it was the Appellant (A-30) who had been negotiating with the customs and police officers to revise the rates per landing. He (A-90) had accepted a bribe from the Appellant (A-30) of Rs. 1 lakh out of the total amount of Rs. 3.5 lakhs that was paid by the Appellant to R.K. Singh (A-102).Confessional Statement of SS Talwadekar (A-113):83. He has also corroborated the confessional statement of the Appellant regarding silver at Shekhadi sea-coast, in collusion with the customs and police officers including J.K. Gurav (A-82). He has revealed that he had been facilitating the smugglers in their landings and transportation, and he has also accepted that he had received Rs. 1.6 lakhs as was decided earlier for the first landing, for the second and also third landing. He has also admitted to accepting the said amount.So far as theincident dated 9.1.1993 is concerned, he has named the Appellant (A-30) who met him (A-113) and paid him a sum of Rs. 40,000/- out of the settled amount of Rs. 1.25 lakhs.Confessional Statement of Mohd. Kasam Lajpuria @ Mechanic Chacha (A-136):84. His statement corroborates the statement of Salim Kutta (A-134) to the extent that Uttam Potdar (A-30) was the landing agent, and that the accused had (A-136) met Uttam Potdar (A-30) at Mhasla. He (A-136) further corroborated the version of events which included the interception of contraband by the Shrivardhan police; the negotiation of the bribe by Uttam Potdar (A-30); and further the giving of five silver bricks to the police as security.Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):85. He has stated that he is the elder brother of Shabbir. He knew the Appellant (A-30) who was at that time, working for Mohd. Dossa. During a marriage in his family on 10.1.1993 when a large number of his relatives were visiting, Salim Kutta (A-134) and his friends Feroz and his brother Shabbir had come to his house on a Yamaha Motor Cycle alongwith the Appellant (A-30). The Appellant (A-30) left after having a discussion with his brother, Shabbir. Shabbir told him (A-133) that silver and weapons would arrive at Dighi Jetty on that day, and this landing was to be supervised by the Appellant (A-30). After some time, Shabbir and the other co-accused Salim (A-134), Feroz and the Appellant (A-30) started talking about the unloading of the goods to be brought, and after discussing the same for a while, the Appellant (A-30) went out to make arrangements for the unloading of the concerned goods. It was on that day that he learnt that the goods were being sent by Mohd. Dossa.On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz left for Dighi Jetty to unload the smuggled goods. He (A-133) stayed at home. They returned at 5 a.m. with three wooden boxes, which were kept by them in the hall of the house, and he then slept there. From their conversation, the witness learnt that there were 300 ingots of silver in total, each of them weighing 30 Kgs. and 19 ingots which could not be loaded in the truck, and the same were then hidden in the open land of one Subedar who was at the said time, living in Nairobi.On 10.1.1993, the Appellant (A-30) came to his house during the night and spoke to Salim (A-134) and Shabbir and went away. From their discussion he (A-133) understood that silver and weapons had been smuggled at Dighi Jetty on the previous night.He (A-133), alongwith others, brought 19 silver ingots and 15/20 green coloured bags containing tin boxes in a bullock cart, and kept them in their house and then fell asleep. After about two days, Afzal Gadbad, who works in the office of Mohd. Dossa in Bombay, came there and took away the said silver ingots in a jeep. However, the tin boxes remained there. After about a month, upon being asked by Shabbir, the said tin boxes and bags were taken to the first floor of the house of Ali Mian Faki, which was in close proximity to their house. Janardhan Pandurang Gambas (A-81) who is a resident of that area, and a fisherman who had participated in the smuggling with Shabbir, the Appellant (A-30) and Abdulla Surati told the witness that the smuggled goods also contained weapons alongwith silver ingots.Confessional Statement of Salim Kutta (A-134):86. He has corroborated the confessional statement of the Appellant (A-30). However, he (A-134) did not say anything to show that the Appellant (A-30) had knowledge regarding the contents of the boxes, particularly as regards the weapons. He stated that the Appellant (A-30) was present during the landing at Dighi Jetty and had made arrangements for labour and a boat. After the loading of the landed goods on vehicles, the Appellant (A-30) had also participated in negotiations with the police upon being interception by them.Confessional Statement of Faki Ali Faki Ahmed (A-74):87. He (A-74) corroborated the fact that the Appellant (A-30) was a landing agent and a resident of Mhasla, and that the Appellant (A-30) was well acquainted with Shabbir and Jamir (A-133) who were involved in smuggling activities.88. Deposition of Dilip Pansare (PW. 97) - In his deposition, he reveals that he was a childhood friend of the Appellant (A-30) and had been working in a government department. However, he had driven the truck containing smuggled goods. He has also deposed that upon interception by Inspector Patil (A-116), a discussion ensued for half an hour, amongst the Appellant (A-30), Gurav (A-82), Shabbir Kadri and Inspector Patil (A-116). He identified the truck, though the owner and the driver of the truck were neither made accused, nor witnesses in this case.89. Deposition of Vyankatesh Hirba (PW. 588) - He was the officer who had effected the seizure of the Tempo bearing number MH-06-5533 on 12.4.93. The Appellant (A-30) in his confession has stated that the said tempo was used to transport contraband items which were landed at Dighi Jetty.90. Deposition of Dinesh Nakti (PW. 95) speaks of silver ingots and wooden boxes. He identified the Appellant in court.91. A conjoint reading of the confessional statement and deposition of witnesses reveal that Appellant (A-30) had been an associate of Mohd. Dossa (AA) and was aware of the fact that Mohd. Dossa (AA) was involved in criminal activities. A-30 was also associate of co-accused Mechanic Chacha, Shabbir, Salim, Feroz and Jamir Sayyed Kadri. A-30 has been working as a landing agent for Mohd. Dossa and Ors. by arranging boats and coolies. A-30 was called to Mhasla on 4.12.1992 wherein he disclosed about the previous day landing to R.K. Singh (A-102), Custom Officer. Subsequent to the said meeting, A-30 received Rs. 6.25 lacs from A-136 and paid Rs. 1 lac to Mhasla Custom staff, Rs. 1.5 lacs to Shrivardhan Custom staff, Rs. 1.25 lac to R.K. Singh, Custom Officer. A-30 made arrangements for boats and coolies for another landing scheduled for 9.2.1993 and went to Dighi Jetty on his motorcycle on 9.2.1993. He met Custom Inspector Gurav (A-82) and started driving jeep of Gurav. When the trucks carrying contraband smuggled goods were intercepted by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that the money for earlier landing had been paid to Mali Havaldar who was also member of that police team. It was in his presence that Mechanic Chacha (A-136) offered Rs. 10 lacs to PSI Patil and as they did not have money, they gave him 5 silver bricks as a security. A-30 alongwith others shifted 170 bricks in the cavity of two trucks of Bombay and 80 silver bricks were transferred from one truck to another at the residence of Shabbir (AA). He also went to the residence of Shabbir. A-30 left the message at Shrivardhan Police Station that he would come with money on the night of 10.2.1993. In his presence Rs. 2 lacs were paid to Patil, PSI at Shrivardhan Naka and Rs. 5 lacs were paid to Havaldars. A-30 received Rs. 3 lacs from Feroz on the same night to hand it over to Custom Officer of Alibagh and he handed it over to R.K. Singh and Sayyed.92. After appreciating the evidence on record, the learned Designated Court reached the following conclusions:...However considering further events which had occurred at Ghonghar Patta i.e. interception of goods by police, allowing the same to be further proceeded after negotiations with smugglers, presence of A-30 who was one of the main person, or effecting landing, his role in the said episode, it is difficult to perceive that at the said juncture A-30 would not have gathered the knowledge of contraband material. Needless to add that in cases of conspiracy it is difficult to except to have direct evidence and the inference about certain aspects is required to be drawn from established facts & circumstances.Thus having regard to all the aforesaid facets it is difficult to accept that at least at the said place A-30 would not have gathered the nature of contraband goods also sent along with smugglers. It is true that the said further acts committed by A-30 being in the nature of continuing job for which he had agreed i.e. effecting the silver landing the same may not make him liable for being party to the conspiracy to commit the terrorist act or the larger conspiracy for which the charge at head 1stly is framed. Such a conclusion is obvious as hardly there exists any other material denoting that alter completion of job of landing & transportation, A-30 having committed any act furthering object of ally conspiracy. However, still now the further act being committed by A-30 being with an expressed knowledge that the contraband material was containing arms & ammunitions he will be squarely liable for commission of offence u/s 3(3) of TADA. Similarly the quantity of the said arms & ammunition and the further acts actually committed by A-30 would also make him liable for commission of offence u/s 6 TADA.... Thus considering the said aspect it will be extremely difficult to accept that policemen would not have been aware about the nature of said goods in trucks which were in the said trucks i.e. silver and arms & ammunitions as established by evidence. Such an inference is inevitable as such evidence pertaining to landing clearly denotes of the material being of two different categories i.e. boxes and bachkies i.e. bundles. Having regard to the same it is difficult to perceive that during inspection of trucks at least parcels from each category would not have been inspected by policemen.