Topic: State of Maharashtra and Ors. v. Som Nath Thapa and Ors - Discharge under 239 CrPC

State of Maharashtra and Ors. v. Som Nath Thapa and Ors
Equivalent citations: 1996 AIR 1744, 1996 SCC (4) 659 - Bench: Hansaria B.L. (J), Ahmadi A.M. (Cj), Sen, S.C. (J) - Citation: 1996 AIR 1744 1996 SCC (4) 659, JT 1996 (4) 615 1996 SCALE (3)449 - Date of Judgment: 12/04/1996

J U D G M E N T

HANSARIA. J
Bombay of yesterday, Mumbai of today: financial capital of the    nation. It woke as usual on 12th March, 1993. People started for their places of work not knowing     what was in their store. The terrorists and/or disruptionists, bent on breaking the backbone of the nation (for reasons which need not be    gone into) had, however, hatched a well laid-out conspiracy to    cripple     the country by striking at     its financial nerve. As Bombay set down to work,     blasting of bombs,    almost simultaneously, took    place at important centres of commercial actvities like Stock Exchange,     Air India, Zaveri Bazar, Katha Bazar and many luxurious hotels. A shocked Bombay and a stunned nation first tried to provide succour to the victim as much as possible and then wanted to know the magnitude of    the loss of life and property. It surpassed all imagination, as    it was ultimately found that the blasts left more than 250 persons dead, 730 injured and property worth    about Rs.27 crores destroyed. By all counts, it was    thus a    great tragedy; and revolting also, as it was men-made.

2. All right    thinking persons and    wellwishers of     the nation started asking; Why it happened ? How could it happen ? We are not concerned in these ceses 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 (of whom     38 were shown as absconders) under various sections of the Penal Code and the Terrorists And    Disruptive Activities (Prevention) Act, 1987 (TADA), hereinafter the Act also. The Designated Court constituted under Section 9 of the Act came to be seized of the matter and by its impugned order of 10.9.1995 it has framed charges    against 127 persons, discharing at the same time 26. One died and two became approvers. (The total thus comes to 146)

3. Of the charged accused, four: (1) Abu Asim Azmi; (2) Amjad Aziz Meharbaksh; (3) Raju alias Raju Code Jain; and (4) Somnath Thapa have     approached this Court having    felt aggrieved at their having not been discharged. The State of Maharashtra has approached the Court seeking cancellation of bail granted to appellant Thapa.

4. We were fortunate to have leading criminal lawyers of the country to assist us in the matter in asmuch as Shri Ram Jethmalani appeared for Raju and Moolchand, Shri Ratinder Singh for Abu Azim Azmi, Shri     R.K. Jain for Amzad Ali and Shri Shirodkar     for appellant Thapa. The     State     was represented by    Addl. Solicitor     General, Shri     KTS Tulsi. Lengthy arguments were advanced by the learned counsel to sustain the stands taken by them. We put on     record     our appreciation for the able assistance rendered by all.

5. The appeals call for examination of three questions of law. These are:

(a) What are the ingredients of "criminal conspiracy' as defined in Section 120-A o the Penal Code ? (b) When can charge be framed ?

(c) What is the effect of repeal of TADA ? After understanding and explaining the legal position, we would examine the cases of     individual appellants     and would see whether any of them deserves to be discharged. We would then express our view whether bail of Thapa has to be cancelled and whether Moolchand has to be released on bail. Essential ingredients of criminal conspiracy:

7. It would be     apposite to note at    the threshold    that sections 120-A    and 120-B, which are the two sections in Chapter V - A of the Code, came to be introduced by Criminal Law Amendment Act of 1913. The Statement of    Objects     and Reasons stated    that a    need was felt for the same to make conspiracy a substantive offence. In doing so the common law of England was borne in mind.

8. Section 120-A defines criminal conspiracy as below: "120-A. Definition of    criminal conspiracy:- When two or more persons agree to do, or cause to be done,

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is 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. vs. Hawkesley, 1959     Criminal Law Report 210; and     People     vs. Lauria, 251 California Appeal    2d 471. Some assistance is derived     from    a judgment of this    Court in Natwarlal Shankarlal Mody     vs. State of Bombay, 1961 Bomboy Law Report

661. The only other foreign decision we would be required to note is     United States    vs. Feola 420 US 671, referred to on behalf of the State. We would finally see what was held by a two Judge Bench of this Court in Ajay Aggarwal vs. Union of India, 1993 (3) SCC 609 strongly relied on by Shri Tulsi.

11. The     thrust of Shri Ram Jethmalani's argument is that to find a person quilty of conspiracy there has to be knowledge of either commission of any illegal act by a co-conspirator or taking recourse to illegal means by the co-conspirator, along with the intent to further the illegal act or facilitate the illegal     means.     Though     at one stage     the learned Addl. Solicitor General sought to contend    that knowledge by itself would be enough, he, on deeper thought, accepted that this would not be. But then, according to him, at times intent may be inferred from knowledge, specially when no legitimate use of the goods or services in question exists. To sustain this submission,    he also relied on Lauria's case.    He has    added a     rider as well. The same is that so far as knowledge is concerned, the prosecution, in a case of     present nature     cannot be called upon to establish that the conspirator had knowledge    that the goods in question would be used for blasting of bombs at Bombay. This follows, according to the Addl. Solicitor, from the decision of the United States Supreme Court in Fegla.

12. Let     us first see what was held in Hawkesley. The facts of that     case are that the accused was a partner with Z in a small taxi business. A     and B,     two young men with    some previous criminal record, who    were fairly well known to Z but less well known to the prisoner, H, persuaded H to drive them on     credit from the taxi    office in the centre of the city at     about 12.25 a.m. a distance of about five miles to the outskirts of the city. H did not know that either A or B had criminal records. On the journey A and B informed H that the purpose of the journey was to break into a golf club. H dropped A and B near the golf club and a police officer overheard one of them    say, "We will want you back in about an hour". H never did return to the golf club but returned to the    city where he drove some other fares which had been previously booked after which    he went home taking his taxi with him.

A and B ran away from the golf club on being disturbed be 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 quilty" to the count of conspiracy against him. When A end 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 what was stated at page 667 of the Report. Shri Jethmalani, therefore, submits that mere knowledge that somebody would commit an offence would not be sufficient to     establish a case of     criminal conspiracy, unless there be evidence to show that all had acted in concert or had agreed together to commit the offence in question.

14. The discussion in Lauria    is more     illumnating and its importance lies in the fact that learned counsel of both the sides have sought to    place reliance     on this decision. Fleming, J., who decided the case, was confronted with two leading cases of the United States Supreme Court pointing in opposits directions - one was that of United     States     vs. Falcne, 311 US 205 wherein sellers of large quantities of sugaryeast and    canes were absolved from participation in a consipracy among distillelrs who bought from them. In Direct Sales Co., vs.     United     States, 319 US 703,     however, a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a co-assused physician who was supplying them to addicts. The distinction between these two cases appeared primarily based on the    proposition that distributors     of such dangerous products as drugs are required to exercise greater discrimination    in conduct of their     business than are distributors of     innocuuous substances like sugar and yeast. Fleming, J.,    therefore, observed that in    Falcone     the seller's knowledge of the illegal use     of the goods     was insufficient by     itself use of the goods was insufficient by itself to make the seller privy to a     conspiracy with the distillers who bought from them, whereas in Direct Sales, the conviction     was affirmed    on showing that the    drug wholesaler had     atively promoted the     sale of the    drug (morphine sulphate) in quantity and had sold that same to a physician who practised in a small town - the quantity being 300 times more than the normal requirement of the drug.

15. The following quotations in Lauria from the decision in Direct Sales is very pertinent : "All articles of commerce may be put to illegal ends,............... But all do not have inherently the same susceptibility to harmful and illegal use....... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote and cooperate in it. This intent, when given effect by over act, is the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not uprelated 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 conern. There is informed and interested co- operations stimulations instigstion."

16. The learned Judge, after examining they precedent in the fields thereafter 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,    end the same was sufficient    to charge him with that fact,     even though what Lauria had manifestly tone was allowing them, who were actively plying     their trade, to use    his telephone.     The prosecution in     that    case Sad attempted to establish conspiracy by showing that Lauria was     well aware that his co-defendants were prostitutes, who had received business calls from customers     through his    telephone answering service, despite which Lauria continued to furnish them with such service.     This action of Lauria was    regarded as sufficient to hold that he had conspired with the prostitute to further their criminal activity.

17. The     Additional Solicitor General has, according to us. stolen a march over the counsel for the accused because of what was stated in Lauria's case, as he is undoubtedly right in submitting that RDX, or for that matter bombs, cannot be put to    any legitimate use but only to illegitimate use; and it is RDX or bomb which was either handled or allowed to slip by     the accused before us. So, this act by itself would establish the intent to use the goods for    illegitimate purpose.

18. Another decision to come    tn the     assistance of     the prosecution is    Feola. This decision of the United States Supreme Court is important because the presented in    that case was whether knowledge that intended victim was a federal officer     essential establish crime of conspiracy under the relevant provision which made an assault upon a federal Of while engaged in the performance of his official duties, an offence. Justice Blackmun, who delivered opinion far the majority, held that in so far substantial offence is concerned, to     answer     question of individual guilt or innocence, awareness the official identity of     the assault victim irrelevant. It was then observed that the same has obtain with respect to conspiracy.

19. What had    happened in Feola was that    he and     his confederates had arranged for sale of heroin to buyers, who turned     out to     be undercover agents for the Bureau of Narcotic and Dangerous Drugs. The planning of the group was to palm off on the purchasers, for a substantial sum, a form of sugar in place of heroin and, should that ruse fail, simply to surprise their unwitting buyers and relieve them of the    cash they had brought    along for payment. The plan failed when one agent on a suspicion being aroused, drew his revolver in time to counter an assault upon another agent from the rear. So, instead of enjoying the rich benefits of a successful    swindle, Feola     and his associates found themselves charged, to their undoubted surprise,    with conspiring to assault and assaulting federal officers.

20. The     plea taken by Feola was that he had no knowledge of the victim's official identity and as such he could not have been guilty of conspiracy charge. The Court was, therefore, first required    to find     out whether for the     substantive offence     of charge envisaged    by the     punishing section, awareness of the official identity    of the     victim     was relevant; and     the majority     answered the question in negative, because the offence    consisted in assaulting a federal officer     on duty; and undoubtedly there was an assault and the victim     was a    federal officer on duty. The further step which the     majority took, and with respect rightly, was that the same logic would apply with respect to conspiracy offence.

21. The     Additional Solicitor General has thus a point when he contended that to establish the charge of conspiracy in the present case, it would not be necessary    to establish that the accused knew    that the 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 the prosecution, on     the strength of this    Court's decision in Yash Pal Mittal vs. State of Punjab 1977 (4) SCC 540, which was noted in para 9 of Ajay Aggarwal's case that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another; and in achieving the goal several offences may be committed by the conspirators even unknown to the committed. All that is relevant is that all means adopted and illegal acts done must be     and purported to be in furtherance of the object of the conspiracy,     even though there may be sometimes misfire or over-shooting by some of the conspirators.

23.     Our attention    is pointedly invited by Shri Tulsi to what     was stated in para     24 of    Ajay Aggarwal's case wherein Ramaswamy, J.     stated that the law has developed several or different models or technique to     broach     the scope    of conspiracy. One such model    is that     of a chain, where each party performs even without knowledge of the other,    a role that     aids     succeeding parties     in accomplishing the criminal objectives    of the conspiracy. The illustration given was what is    done in     the process of procuring and distributing    narcotics or     an illegal foreign drug for sale in different parts of the globe. In such a case,     smugglers. Middleman privies    to a single conspiracy to     smuggle and     distribute narcotics.     The smugglers know     that the middlemen must sell to retailers and the     retailers know that the middlemen must buy    from importers. Thus     the conspirators at one end at the chain know that the     unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with settlers. The action of each has to be considered as a spoke in the hub - there being a rim to bind all the spokes together in a single conspiracy.

24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal     means    is necessary.    In some cases, intent of unlawful use being made of the goods or services in question may be    inferred from the knowledge itself. This apart, the prosecution has     not to establish that a particular unlawful use was     intended, so long as     the goods or     service in question could    not be    put to any lawful use. Finally, when the ultimate offence consists    of a chain of    actions, it would not be necessary for the prosecution to establish, to bring home the charge    of conspiracy,     that each of     the conspirators had the knowledge     of what the    collaborator would do, so long as it is known that the collaborator would put the goods or service to an 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 vs. A. Antulay 1986 (2) SCC 716.

27. Let     us note the three pairs of sections Shri Jethmalani has in    mind. These are sections 227 and 228 An so far as sessions trial    is concerned; sections 239 and 240 relatable to trial of warrant Cases; and sections 245    and (2)     qua trial of summons cases. They read as below: "Section 227: Discharge - If, upon

consideration of the record of the case and the documents submitted therein, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228: Framing of Charge - (i) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for trial of warrant- cases instituted on a police report; (b) is exclusively trial by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. (Emphasis supplied) Section 239: When accused shall be discharged - If, upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Section 240: Framing of charges if, upon such consideration, examination, if any, and hearing the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 245: When accused shall be discharged-(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made cut which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall to 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."

Before adverting to what was stated in Antulay's case, let the view    expressed in State of Karnataka vs. L. Muniswamy), 1977 (3) SCR     113 be noted. Therein, Chandrachud, J. (as he then was) speaking fore 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 Street Atyachar Virodhi Parishad's case. Which     was quoted with approval in paragraph 76 of State of west Bengal vs. Mohd. Khalid, 1995 (1)SCC 684 is    that what the     Court    has to     see, while considering the     question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into.

30. In    Antulay's case,     Bhagwati, CJ., opined, after noting the difference    in the     language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has     to be    applied. According to    Shri Jethmalani, a prima facie case even be said    to have been made out when the evidence, unless rebutted, would make the accused liable    to conviction.     In our view, better     and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".

31. Let     us note the meaning of the    word "presume". In Black's Law Dictionary it has been defined to mean     "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in     law "presume"     means    "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has    quoted in this context     a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of     a fact     alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the    same quotation finds place at page 1007 of 1987 edition. 32 The aforesaid shows that    if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the    accused might have committed the offence it can frame the charge, though for conviction the conclusion    is required to     be that the    accused     has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. What is the effect of lapse of TADA ? -------------------------------------

33. In the written submissions filed on behalf of appellant Moolchand, it has been urged     that TADA having lapsed, section 1(4) which saves, inter alia, any investigation instituted before the Act had 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 Vs. State of Mahasrashtra, JT 1996 (1) SC 114, in which it has    been clearly held that in view of    section 1(4) of the Act, the farmers 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     subsection (4)     of section (1) protects and keeps alive such investigation and trial. FACTUAL ASPECTS OF THE APPEALS

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35. The     Legal question     having been examined, we may advert to the    facts of each appellant to decide whether a prima facie case against him exists, requiring framing of charge, as has    been ordered. Before we undertake this exercise, it may be    pointed out that the learned Designated Court in his impugned judgment, instead of    examining the merits of the prosecution case qua the charged accused, has given reasons as to why he    discharged 26    accused. A grievance    has, therefore, been     made by all the learned counsel appearing for the     accused that this was not the legal approach to be adopted. We find merit     in this grievance inasmuch as the impugned order    ought to have shown that the     Designated Court applied its judicial mind to the materials placed on record against the charged accused.    This was necessary because framing     of charge substantially affects the liberty of the    concerned person. Because of the large number of accused in the case (and this number being large as regards charged accused     also), the court below might have adopted the approach he had done. But we do not think it was right in doing so. Be that as it may, now that we have    been apprised by the prosecution regarding     all the materials which were placed before the Designated Court against each of the    appealing accused, we propose to examine, whether on the basis of such materials, it can reasonably be held that a case    of charge exists. We would do so separately for each of the appellants.

36. At this stage, it     may be     pointed out that the trial court has, apart from    framing individual charge, framed a general charge.     Which, after naming all the    127 charged accused, reads as under :

"During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit Terrorist Acts in India and that you all agreed to commit following illegal acts namely to commit terrorist acts with an intent to overawe the Government as by Law established, to strike terror in the people, to alienate sections of the people, to adversely affect the harmony amongst different sections of the people i.e. Hindus and Muslims by using bombs, dynamites handgranades and other explosives substances like RDX or inflammable substances or fire-arms like AK-56 rifles, Carbines, 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 commit 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 and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.3.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Centaur at Santacruz, Zaveri Bazar, katha Bazar, Century Bazar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgranades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27.0 Crores destroyed, And attempted to cause Bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120 (B) of Indian Penal Code read with Sections 3(2) (i), (ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Section 3 and 7 read with Section 25 (1A), (1B), (a) of the Arms Act, 1959, Section 9-B(1), (a), (b), (c) of the Explosives Act, 1884. Section 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of Prevention of Damage to Public Property Act, 1984 and within my cognizance. Abu Asim Azmi 37. The specific charge relating to this appellant is as below : "In addition to Charge First you accused Abu Asim Azmi is also charged for having committed the following offences in pursuance of the criminal conspiracy in Charge First. SECONDLY that you Abu Asim Azmi in pursuance of the aforesaid criminal conspiracy conspired advocate advised abetted and knowingly facilitated the commission of terrorists act and acts preparatory to terrorists act i.e. bomb blast and such other act which were committed in Bombay and its suburbs on 12.3.93 by agreeing to do any by doing the following overt acts. (a) That you sent Sultan-E-Rome Ali Gul, Mohmed Iqbal Ibrahim, Shakeel Ahmed, Shah Nawaz Khan s/o Faiz Mohmed Khan, Abdul Aziz, Manzoor Ahmed Mohmed Qureshi, Shaikh Mohmed Ethesham and Mohmed Shahid Nizamuddin Qureshi, to undergo weapon training at Pakistan in furtherance of the objectives of the aforesaid criminal 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 bu 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 presume,    unless the contrary is     proved, that    such person has committee of the offence under that provision.

39. Shri Rajinder Singh, appearing for this appellant, did not consider it necessary to contest    the aforesaid legal position. His sole contention    is that the materials sought to be relied on by the prosecution in alleging that Abu had booked tickets    out of    his own funds, which is the gravamen of the    charge, has no legs to stand inasmuch as there are materials galore to show that the fund for booking the 11 air tickets for Dubai    had come, not from the fund of the appellant, but the money had been made available to the firm of the    appellant, named Abu Travel Agency, by one Maulana Bukhari about which Shamim Ahmed working as cashier in the firm has stated. His statement during investigation was that on 21.1.1993 two persons had come to his office and handed over a sum of Rs.1.15 lacs along with 11 passports by saying "Bukhari Saheb    Ne Bheja Hai"(Bukhari Saheb has sent). This was pursuant to the talk Shamim earlier had with Bukhari who had inquired as to whether the firm of the appellant could arrange for 11 air tickets to Dubai, which was answered in affirmative. The firm of M/s. Hans Air Services     was thereafter contacted and a sum of Rs. 38.000/- was paid in cash by     the appellant and Rs. 73,000/- through drafts whose numbers     are on record. It, however,     happened that     one ticket had to be cancelled on 11.3.1993; and because of this an amount of Rs.9,939/- was credited    in the     account of appellant's firm in the books of M/s. Hans Air Services. It is really this entry which has been pressed into service by Shri Tulsi to contend    that the money for the journey had really been paid by the appellant's firm.

40. According to Shri Rajinder Singh, the fact of aforesaid credit was not brought     to the     notice of the appellant's firm. Then, as the bomb blasts took place an the next date i.e. 12th March and as Bukhari was     shot dead in     the meantime, the money could not have been returned to Bukhari. It is, therefore, urged that     - the     mere fact of     the aforesaid amount having been credited in the name of the appellant's firm in the books of M/s. Hans Air Services cannot at all suggest, in view of the aforesaid statement of Shamim, which wag duly     corroborated by Iftikhar, who     was working at the relevant time as a clerk in M/s. Abu Travels, that 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 advanced is that if the action of booking the tickets in     question would     have been a part of tainted activity, the sum of Rs.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 Rs.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 case (supra), the     materials on    record    must satisfy the mind of the Court     framing the charge that the commission of    offence     by the accused in question     was probable. We do not think if a conclusion can reasonably be drawn only from the above-noted incriminating fact pressed into service by     the prosecution that     the appellant might have abetted the offences in question. There being no material to frame individual charge under section 3(3) of     TADA, we are of the opinion that the general charge qua this appellant has     also to fail, as the only overt act attributed to him is the aforesaid activity     of booking tickets.

42. We, therefore, allow the    appeal    of this appellant, which arises out of SLP(Crl.) No.3305 of 1995, and order for his discharge.

Amjad Aziz Meharbaksh

43. The individual charge against with appellant reads as below : "In addition to Charge First. you Amjad Abdul Aziz Meherbux is also charged for having committed the following offences in pursuance to the criminal conspiracy -described in Charge First :- SECONDLY :- that you Amjad Abdul Aziz Meherbux in pursuance of the aforesaid criminal conspiracy and during the period January, 1993 to February, 1993 knowingly facilitated the commission of terrorist act and acts preparatory to terrorist act i.e. bomb blast and such other acts which were committed in Bombay and its suburbs on 12.3.1993 by doing the following overt acts :- That you permitted your co- accused Yakoob Abdul Razak Memon to park motor vehicles laden with arms, ammunition and explosives which were part of the consignment smuggled into the country for committing terrorist act by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his associates and were brought to your premises by co-accused Abdul Gani Ismail Turq, Asgar Yusuf Mukadam and Rafiq Madi and also handed over suit cases containing hand granades and detonators to your co-accused Altaf Ali Mustaq Sayed at the instance of Yakoob Abdul Razak Memon and thereby you committed an offence punishable under section 3(3) of TADA (P) Act, 1987 and within my cognizance. THIRDLY :- That you Amjad Abdul Aziz Meherbux in pursuance of the aforesaid criminal conspiracy and during the period 3.2.1993 onwards when arms, ammunition and explosives were smuggled into the country for committing terrorist act by Tiger Memon and his associates were in possession of part of the consignment i.e, arms, 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 (P) 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 over acts committed by you in curse of the same transaction i.e, in pursuance of the

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 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, 1994 (5) SC 910, the appellant was rightly charged under section 3(3) of TADA.    Our attention    is invited by     the learned Addl. Solicitor General to the decisions of    this Court in State of Maharashtra vs. Abdul Hamid Haji Mohammed, 1994 (2) SCC 664 and state of West Bengal vs. Mohd. Khalid etc., 1995 (1) SCC 684, wherein possession of bomb AK-56 was held sufficient to attract mischief of TADA.

45. In     refuting the     aforesaid contentions, Shri    Jain submitted that    the materials on record show the after this appellant came    to know     about the parking of the vehicles, which were loaded with     arms and ammunition, he immediately asked Yakoob to remove     tho jeep from his compound, as has been mentioned    by the    designate Court     itself in his order dated 25th September, 1993 by which he had released this appellant on bail. The Designated Court had further observed in this connection that this conduct showed that     the appellant was not agreeable to allow    Yakoob to park     his vehicles in his compound, which showed that    he had     not intentionally aided Yakoob. The Designated Court had taken this view by relying on what     had been stated by    this appellant in    his confession, which was sufficiently corroborated by confession of the co-accused.

46. Shri Jain has, therefore, submitted, and rightly, that the conduct of the appellant is clearly indicative of the fact that he was neither in conscious possession of     the arms, ammunition etc. nor had he aided Yakoob Memon in any way in the terrorist act. We would, therefore, order for the discharge of this appellant also by allowing     his appeal numbered as Criminal Appeal 810 of 1994. The general charge would also fail qua this appellant for the reason given while dealing with the case of the appellant Abu. Raju @ Rajucode Jain

47. We may note the individual charge against this appellant which reads as below "In addition to charge First, you accused Raju Laxmichand Jain @ Raju Kodi, is also charged for having committed the following offence in pursuance to the criminal conspiracy described in Charge first:- SECONDLY:- That you accused Raju Laxmichand Jain @ Raju Kodi in pursuance of the aforesaid criminal conspiracy and during the period from December, 1992 to April, 1993 abetted and knowingly facilitated the commission of terrorists act and act preparatory to terrorist act i.e. serial bomb blast and such other acts which were committed 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

(b) That you participated in smuggling, landing and transportation 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- employee 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. We were handed over a summary of these materials reading as below:
i) Association with Tiger Memon: Raju Kodi, being the man of confidence of Tiger Memon, was dealing in disposal of smuggled gold and silver since long. He purchased M/scooter in April- 1992 and lent the same to Tiger Memon for smuggling activities and the same scooter was used as scooter Bomb and exploded at Kathya Bazar. The Registration papers of the said scooter were recovered at the instance of the Raju Kodi under a Panchanama dt. 12/07/1993. Raju Kodi deposited Rs.1,61,48,000/- in the 'Hathi' account maintained by co-accused Mulchand Shah and belonging to Tiger Memon during the period from 07/11/1992 to 4/12/1992. The same amount was subsequently used by Tiger Memon for blast purpose. (the 'Hathi' account note was recovered at the instance of co-accused Mulchand Sampatraj Shah. Raju Kodi purchased the said M/Scooter and 3 Jeeps under fictitious names. Raju Kodi gave his men and four Jeeps for transportation of Arms, Ammunition and RDX landed by Tiger Memon. These Jeeps were provided with special cavities to conceal the arms, ammunition and RDX. These Jeeps were recovered at his instance under Panchanama dated 1/06/1993. These Jeeps were found with "traces of RDX vide F.S.L. Reports.

ii) The accused Azgar Yusuf Mukadam is narrating in his confessional statement about the association of the appellant with Tiger Memon and dealing with him in smuggling activities and Hawala money

iii) The co-accused Mulchand Sampatraj Shah is narrating in his confessional statement about the association of the appellant with Tiger Memon and dealing with him in smuggling activities and Hawala money.

iv) The co-accused Salim Mira Moinddin Shaikh is narrating in his confessional statement about tie association with Tiger Memon and his smuggling activities.

v) the co-accused viz. Abdul Gani Ismail Turk is narrating in his confession about association of the appellant with co-accused Tiger Memon and dealing in smuggling activities and Hawala money.

vi) The co-accused Imtiyaz Yunusmiya Ghavate is narrating in his confession about association of the appellant with Tiger Memon and dealing in smuggling activities and Hawala Money."

May it be stated    that for the purpose of the present case, we cannot enter    into the probative value of     the statements made     by different persons in this regard tending to support the above.

49. The     Sola 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) to the Act     has to fail. The materials do not establish even statement. 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 Jegal use. Further, as already held, the prosecution has no obligation under the law to establish that the appellant had know 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 facie show that the appellant had aided the terrorist act in question , even as per the definition of the word     "abet" given in section 109 of the Penal Code. The alleged financial assistance provided would attract the enlarged definition of abetment given in section 2(1)(a)(ii) of the Act.

50. Apropos the case of the persecution that this appellant kept silence     despite knowing about the aforesaid transportation form his driver, the    submission of    Shri Jethmalani is that there is nothing to show as to when the appellant had know form his driver about this fact.     The learned counsel asked whether    the information was given immediately after the driver had come back or after the bomb blasts had taken place     or after he was arrested ? May we mention     that    the fact of knowledge of the aforesaid transportation was know as per the confessional statement of the appellant from his driver. The further statement in this context is that despite knowing this he had not disclosed to anybody     about    transportation    , which according to     the appellant was due to the fear     of police. Shri Jethmalani asked the just mentioned questions to     persuade us to hold that there was no criminality in the silence of     the appellant in    not informing     the    police     about     the transportation. Even if some allowance is made to this part of the    submission of    the learned counsel,    the law of conspiracy. being as explained     above, a prima facie    case against this appellant under section 3(3) of the Act does exist. The individual charge as well as the general charge, therefore, must     be maintained in so far as he is concerned. So his    appeal- the same being criminal appeal 793/95 stands dismissed.

Somnath Thapa

51. This appellant's role in the tragedy is    of a higher order inasmuch    as being an Addl. Collector    of Customs, Preventive, the     allegation is    that he facilitated movement of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim, Mohmed Dosa, Tiger Memon and their associates, The     Addl. Solicitor General was emphatic that a full proof case relating to framing of charge against him does exist. Shri Shirodkar     was equally    emphatic in submitting that materials on record fall     short     of establishing a prima facie case against this appellant.

Re: State of Maharashtra and Ors. v. Som Nath Thapa and Ors - Discharge under 239 CrPC

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.