52. Let the additional charge framed against him be noted: "The you Somnath Kakaram Thapa during the period you were posted as Additional 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 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 @ 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 @ Ibhrahim @ 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 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.

52. Let the additional charge framed against him be noted:
"The you Somnath Kakaram Thapa during the period you were posted as Additional 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 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 @ 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 @ Ibhrahim @ 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 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 According to Shri Tulsi the following materials make out the prima facie case against this appellant: (i) Association with Mohd.Dosa: S.N. Thapa has been an associate of absconding accused Mohd. Dosa, who has played a major role in the conspiracy to cause bomb blasts. The Tel. Nos. (RES. & official) of S.N. Thapa have been found entered in the Tel. diary seized form Mohd. Hanif @ Raju, an employee of Mohd. Dosa. (ii) Association with Tiger Memon: S.N. Thapa has been an associate of Tiger Memon the prime accused in the bomb blast case, who is still absconding. He has been facilitating the smuggling activities of Tiger Memon against illegal gratification. (iii) Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes: An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a number of include a manuscript of gist of conversation recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi (Pakistan). Accused Yakub Memon, Syed Arif (Pakistani National) Hazi Taufique Jaliawala (Pakistani National) Tiger Memon, Suleman Memon and Yub Memon had participated in the conversation. This gist of conversation refers to various matter which show close association of Tiger Memon with Sh. Thapa. In the gist of conversation there is reference of ISI of Pakistan and Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the smuggling. The investigation had established that the said gist of conversation is in the hand-writing of accused Yakub Memon. Independent witnesses and the handwriting expert have proved his handwriting. (iv) Statement of L.D. Mhatre, Mhatre Customs Inspr.: L.D. Mhatre introduced a source (witness code No.Q-3360) to S.N. Thapa and it was decided that the source would pass on information about the illegal landings at Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be kept at "Sai Morba-Goregoan Junction" because that was the main exit point after the landing. The source gave an information of the landing to Mhatre on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of 30 & 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan 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 same chemicals had landed at Shekhadi. Sh.Thapa did not contact the source to ascertain further details. Nor did he inform about it to his senior officers. He also did not submit 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 At Sh.Thapa gave him a telephonic message saving that something had happened beyond bankot in thelimits 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 Rs.3 lacs as illegal gratification for the landing out of which he gave Rs.1 lacs to Sh.S.N. Thapa. (v) Awareness about landing : Sh.S.K. Bhardwaj, Collector of Customs,(Prev.) issued a letter dt. 25.1.93 addressed to Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that intelligence had been received that big quantity of weapons would he smuggled into India by ISI alongwith gold and silver and these were likely to be landed in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs had directed the subordinate officers to keep a close watch & that all-time alert may be kept. The copy of this letter was also endorsed to Sh.Thapa, who had seen it on 27.1.93. In addition to the aforesaid letter from the statements of the customs officer, who had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He had infact disclosed this information to the subordinate officers at the time of nakabandi. Sh.Thapa was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that landing of smuggled contrabants was about to take place near Mhaysla on the night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh region. Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had not mentioned about Bankot. (vii) Vehicle and Vessel Log Book : When Nakabandi was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with him. However, the investigation had disclosed that the pages of the 109 book for the period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn from it. In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided. A logbook is maintained for the vessel. The investigation had disclosed that an entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is not correct because when compared with the entries made in the wireless logbook of Shrivardhan Customs office it is seen that patrolling commenced at 2345 hrs.

53 According to Shri Tulsi the following materials make out the prima facie case against this appellant: (i) Association with Mohd.Dosa: S.N. Thapa has been an associate of absconding accused Mohd. Dosa, who has played a major role in the conspiracy to cause bomb blasts. The Tel. Nos. (RES. & official) of S.N. Thapa have been found entered in the Tel. diary seized form Mohd. Hanif @ Raju, an employee of Mohd. Dosa. (ii) Association with Tiger Memon: S.N. Thapa has been an associate of Tiger Memon the prime accused in the bomb blast case, who is still absconding. He has been facilitating the smuggling activities of Tiger Memon against illegal gratification. (iii) Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes: An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a number of include a manuscript of gist of conversation recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi (Pakistan). Accused Yakub Memon, Syed Arif (Pakistani National) Hazi Taufique Jaliawala (Pakistani National) Tiger Memon, Suleman Memon and Yub Memon had participated in the conversation. This gist of conversation refers to various matter which show close association of Tiger Memon with Sh. Thapa. In the gist of conversation there is reference of ISI of Pakistan and Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the smuggling. The investigation had established that the said gist of conversation is in the hand-writing of accused Yakub Memon. Independent witnesses and the handwriting expert have proved his handwriting. (iv) Statement of L.D. Mhatre, Mhatre Customs Inspr.: L.D. Mhatre introduced a source (witness code No.Q-3360) to S.N. Thapa and it was decided that the source would pass on information about the illegal landings at Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be kept at "Sai Morba-Goregoan Junction" because that was the main exit point after the landing. The source gave an information of the landing to Mhatre on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of 30 & 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan 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 same chemicals had landed at Shekhadi. Sh.Thapa did not contact the source to ascertain further details. Nor did he inform about it to his senior officers. He also did not submit 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 At Sh.Thapa gave him a telephonic message saving that something had happened beyond bankot in thelimits 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 Rs.3 lacs as illegal gratification for the landing out of which he gave Rs.1 lacs to Sh.S.N. Thapa. (v) Awareness about landing : Sh.S.K. Bhardwaj, Collector of Customs,(Prev.) issued a letter dt. 25.1.93 addressed to Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that intelligence had been received that big quantity of weapons would he smuggled into India by ISI alongwith gold and silver and these were likely to be landed in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs had directed the subordinate officers to keep a close watch & that all-time alert may be kept. The copy of this letter was also endorsed to Sh.Thapa, who had seen it on 27.1.93. In addition to the aforesaid letter from the statements of the customs officer, who had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He had infact disclosed this information to the subordinate officers at the time of nakabandi. Sh.Thapa was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that landing of smuggled contrabants was about to take place near Mhaysla on the night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh region. Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had not mentioned about Bankot. (vii) Vehicle and Vessel Log Book : When Nakabandi was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with him. However, the investigation had disclosed that the pages of the 109 book for the period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn from it. In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided. A logbook is maintained for the vessel. The investigation had disclosed that an entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is not correct because when compared with the entries made in the wireless logbook of Shrivardhan Customs office it is seen that patrolling commenced at 2345 hrs.

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:-

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 Ist    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    subordinate officers also. (The fact that Thapa had received a copy of     the letter, about which Shri Shirodkar mentioned    many a time, has no    significance as     copy was apparently sent to apprise Thapa of the contents,     requiring him to take such steps as would have been within     the ken and competence of a high custom    official on the preventive side like him). It deserves to be noted that the information was not only about smuggling of gold and silver alone, but of weapons and that too by the ISI-an agency alleged to be extremely inimical to India. This is not all. Indeed, there are material on record to show     that Thapa had information about landing of     RDX (described as 'Kala Sabun' in the under-world) at Shekhadi and Shrivardhan     on 3.2.93. According    to Addl. Solicitor General, Thapa had facilitated     the movement or be used to receive fat sum of money from     Tiger Memon as quid pro quo for help in his smuggling activities.

56. Shri Shirodkar strongly refuted the contentions of the Addl.Solicitor General    and, according to him, Nakabandi had been done at the places suggested by the local officers like Inspectors Agarkar and Kopikar, who had better knowledge of the place of the Nakabandi, and therefore, no fault can be found with Thapa for having done Nakabandi at a wrong place. As to the motive ascribed, the submission was that to sustain the same the only matter is of conversation found from the possession of     absconding accused Yakub Memon who was arrested at New Delhi on 5.8.94. The conversation itself was recorded on a cassette,     which,     according to    Shri Shirodkar, was    not at    all audible as was certified by the Doordarshan Center of Bombay. The learned counsel would also require us to bear in mind that Thapa had been granted bail not only by this Court on 5.9.1994, but subsequently by the Designated Court on 7.2.1795, which had been done bearing in mind the materials which had come on record till then.

57. A perusal    of the     statement made by aforesaid     two Inspectors shows that they had made two statements at two points of time. The first of    these has been described as "original statement' by Shri Shirodkar in his written note and the     second as "further statement". In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be     crucial places     for laying trap, that the same were Purar Phata and Behan Phata, 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 by these     Inspectors, as that was under pressure of investigation undertaken subsequently by the    C.B.I. We do not think that 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 about the same may be passed on to the smugglers. We do not propose to express any opinion on this submission also,    as this     would be a matter to be decided at the trial when defence version of the case would be examined.

59. As    to the    motive sought to be established on the basis of a gist of the taps     recorded conversation said to have been recovered    from absconding     accused Yakub    Memon, which contained the statement that one day    Thapa had arrived at sea shore at the time of illegal landing and Tiger Memon had paid him Rs. 22 lacs     for allowing    the smuggling,     the submission of the learned counsel is that it     is hard to believe that Yakub Memon would have carried in his pocket a gist like the one at hand. Even if we were    to give some benefit to the appellant on this score, that would tend to demolish the case of the prosecution    mainly relatable to motive, which is not required to be established to bring home an     accusation. As     to Thapa, the allegation relates to facilitating movement of arms,     RDX etc., which act would amount to abetment, as     it would be an assistance, which would attract clause (iii) of section     2(i)(a) of the Act, defining the    word 'abet'. It may    be noted that     the individual charge against Thapa is for commission of offence under section    3(3) of TADA, which,     inter    alia, makes abetment punishable.

60. Shri Shirodkar submitted that the investigating agency wanted to rope in Thapa any how, which was apparent from the fact that it     took recourse     to even manufacturing of evidence, as telephone number    of Dawood Ibrahim was fed in the digital diary found at the residence of this appellant on search being made.    Shri Tulsi explained as to how this aspect of the matter, except observing that investigation at times is either sluggish or over zealous - it may over shoot also.

61. All     told, we are satisfied that charges    were rightly framed against    Thapa. This takes us to the State's appeal arising out of SLP (Crl.) No.     2196 of 1995 in which the prayer is to cancel the bail of Thapa, which was ordered by this court on April 5, 1994 and then by the Desingated Court by its order dated February 7, 1995. A perusal of    this Court's order shows that when it had examined the matter, charge-sheet had not been submitted.    It was, therefore, desired that the Designated Court should reconsider in matter with a view to finding     out whether the evidence collected in    the course 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 Asim Azmi 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 31.1.1996 that    SLP had     been delinked    from these cases, on the prayer of counsel for Shah and was ordered to be listed separately. So we have not dealt with that SLP.