B.S. Chauhan, J. - (1.) THIS appeal has been preferred against the impugned judgment and order dated 30.5.2007, passed by Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA') for the Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, convicting the Appellant Under Section 5 TADA, and awarding the punishment of 5 years RI, alongwith a fine of Rs. 25,000/ -, and in default of payment of fine, to further undergo RI for 6 months.
(2.) FACTS and circumstances giving rise to this appeal are that: A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the Appellant (A -20). B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as 'CBI') and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including Appellant (A -20) stood convicted. C. The Appellant had been charged for general conspiracy which is framed against all the accused persons for the offences punishable Under Section 3(3) TADA and Section 120 -B of Indian Penal Code, 1860 (hereinafter referred to as 'Indian Penal Code') 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 Indian Penal Code and offences Under Sections 3 and 7 read with Sections 25(I -A), (I -B) (a) of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act'), Sections 9B(1)(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. D. In addition to the general charge of conspiracy, he had also been charged Under Section 3(3) TADA, Under Section 5 TADA for keeping one AK -56 rifle plus two empty magazines and committed an offence in respect of the same Under Section 6 TADA, and Under Section 3(4) TADA read with Section 212 Indian Penal Code, for harbouring criminals. After conclusion of the trial, the Appellant (A -20) had been convicted Under Section 5 TADA, and awarded the sentence as mentioned hereinabove. Hence, this appeal.
(3.) SHRI Sunil Kumar, learned Senior Counsel appearing for the Appellant (A -20), has submitted that conviction of the Appellant (A -20) Under Section 5 TADA, was not warranted in view of the fact that the recovery had not been proved in accordance with law. The disclosure statement alleged to have been made under the provision of Section 27 of the Indian Evidence Act, 1872 (hereinafter called 'Evidence Act') has not been strictly followed. The said alleged disclosure statement did not bear the signature of the Appellant (A -20). There were two panch witnesses, only one has been examined. The panch witness examined in the case had been a stock witness in the police as he had appeared as a panch witness in other cases. He was the resident of an area in close vicinity of the office of the Crime Branch of the police department. The watchman of the Ghanshyam building from which the recovery had been made, has not been examined. None of the neighbours of that building have been examined as witnesses. There are material contradictions/omissions in the deposition of the witnesses. Even the case number has wrongly been mentioned. The L.A.C. No. 22/93 had been manipulated and it was shown as L.A.C. No. 23/93. Even the recovery of the AK -56 rifle does not give rise to the presumption of possession. It was further submitted that the confession of the Appellant (A -20) had been obtained by coercion by severely beating him. Therefore, the appeal deserves to be allowed.;