- (1.) This appeal has been preferred against the judgments and orders dated 29.11.2006 and 6.6.2007 passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA') in the Bombay Blast Case No. 1/1993, by which the appellant (A-41) has been convicted under Sections 3(3), 5 and 6 TADA, as well as under Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act'), Section 4(b) of the Explosive Substances Act, 1908 (hereinafter referred to as the 'Act 1908), and Section 9-B(1) (b) of the Explosives Act, 1884 (hereinafter referred to as the 'Act 1884').
(2.) Facts and circumstances giving rise to this appeal are that: A. As all the main factual and legal issues involved in this appeal have already been discussed by us and determined in the main connected appeal i.e. Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI (Criminal Appeal No.1728 of 2007), there is thus, no occasion for us to repeat the same. B. The Bombay Blasts occurred on 12.3.1993, in which 257 persons lost their lives and 713 were injured. In addition thereto, there was loss of property worth several crores. The Bombay police investigated the said matter at the initial stage, but subsequently the investigation of the same was entrusted to the Central Bureau of Investigation (hereinafter referred to as the 'CBI'), and then upon conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Among the accused persons against whom a chargesheet was filed, 40 accused could not be put to trial as they were absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Furthermore, the Designated Court discharged 2 accused during trial, and the remaining persons, including the appellant (A-41) stood convicted. C. A common charge of conspiracy was framed against all the coconspirators including the appellant. The relevant portion of the said charge is reproduced hereunder: "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 and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosive 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 or damage to 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, hand grenades 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 organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/coconspirators, 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 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santa Cruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony. Mahirn and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 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) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (1-A), (I-B)(a) of the Arms Act 1959, Sections 9B (l)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance." D. Additionally, he has been charged for abetting and facilitating acts that were preparatory in nature, for the terrorist acts, by acquiring and distributing AK-56 rifles in the city of Bombay and its suburbs, their magazines, ammunition and also hand grenades to co-accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the instance of Anis Ibrahim Kaskar, an Absconding Accused (hereinafter referred to as 'AA'), brother of notorious smuggler Dawood Ibrahim, and Abu Salim for committing the terrorist acts punishable under Section 3(3) TADA. E. The appellant (A-41) was also charged with, being in the unauthorised possession of one AK 56 rifle, 635 rounds of ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as the same were recovered in the notified area at his instance, and thus he has been charged under Section 5 TADA. F. The appellant was further charged under Section 6 TADA, Sections 3 & 7 read with Section 25(1-A), (1-B)(a) of the Arms Act, Section 4(b) of the Act 1908 and Section 9-B(1)(b) of the Act 1884, for unauthorisedly being in possession of the aforesaid arms with the intention to aid terrorist acts. G. The prosecution has examined a large number of witnesses and produced a large number of documents to prove its case, and upon conclusion of the trial, the Designated Court acquitted the appellant of the umbrella charge of conspiracy i.e. charge No. 1. However, he was convicted for the second charge i.e. smaller conspiracy under Section 3(3) TADA and was awarded a sentence of 8 years RI alongwith a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of three years; under Section 5 TADA, he was sentenced to suffer RI for 10 years alongwith a fine of Rs.50,000/-, and in default of payment of fine, to suffer further RI for a period of one year; under Section 6 TADA, he was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-, and in default of payment of fine, to suffer further RI for a period of 3 years; under Section 4(b) of the Act 1908, he was sentenced to suffer RI for four years alongwith a fine of Rs.25,000/- and in default of payment of fine, to suffer further RI for a period of 6 months, under Section 9-B (1)(b) of the Act 1884, he was sentenced to suffer RI for one year alongwith a fine of Rs. 2,000/- and in default of payment of fine, to suffer further RI for two months. All the sentences were directed to run concurrently. However, under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the Arms Act, the appellant was convicted, but no separate sentence was awarded. Hence, this appeal.
(3.) Shri Shree Prakash Sinha, learned counsel for the appellant has submitted that the confessional statement of the appellant as well as those of the co-accused were recorded by the police forcibly, without meeting the requirements of Section 15 TADA and Rule 15 of the rules framed thereunder. Thus, the same cannot be relied upon. The recoveries purported to have been made were also planted by the investigating agency and cannot be relied upon. The Designated Court erred in convicting the appellant. Thus, the appeal deserves to be allowed.;