12 April 1996
Supreme Court


Bench: HANSARIA B.L. (J)
Case number: Crl.A. No.-000480-000480 / 1996
Diary number: 7991 / 1995
Advocates: P. PARMESWARAN Vs






DATE OF JUDGMENT:       12/04/1996


CITATION:  1996 AIR 1744            1996 SCC  (4) 659  JT 1996 (4)   615        1996 SCALE  (3)449



JUDGMENT:                       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 ------------------------------ 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. 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.      on 2.2.93  and  not  on  2100  hrs.      Inspr. Gurav  is also an accused in      the   case,    and   had   actively      conspired alongwith   accused  S.N.      Thapa  and other customs officers." 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.