MOHD. FAROOQ ABDUL GAFUR AND ANOTHER v. STATE OF MAHARASHTRA

Citation: [2009] 12 S.C.R. 1093

Court: Supreme Court of India

Bench: S.B. SINHA, MUKUNDAKAM SHARMA

Case summary

MOHD. FAROOQ ABDUL GAFUR AND ANOTHER v. STATE OF MAHARASHTRA.pdf

Judgment text

[2009) 12 S. C. R. 1093 MOHD. FAROOQ ABDUL GAFUR AND ANOTHER 1' A v. STATE OF MAHARASHTRA (Criminal Appeal Nos. 85-86 of 2006) AUGUST 6, 2009 [S. B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ. ] Penal Code, 1860/Maharashtra Control of Organized i>' t Crime Act, 1999/Arms Act, 1959 - ss. 302, 307, 120-8134, 109, 201134, 411134, 212, 520A, 424, 414 Is. 3 (1), (2) and (4) Is. 25 rlw ss. 3 and 7 - Prosecution under- Eye-witnesses and injured witnesses to the incident - Confessional statements made by the accused persons - Identification of the accused in TIP as well as in the court by eye-witness - Recovery of weapons of offence - Trial court acquitting accused Nos. 2 and 3 and conviction of the rest of the • -+ accused - Accused Nos. 5, 6 and 7 sentenced to death - High Court convicting accused No. 1 u/s. 3 (2) MCOCA rlw s. 120-8 /PC and acquitted him u/s. 52A and 120-8 /PC - Conviction of accused 4, 7 and 8 confirmed - Death sentence of accused No. 7 altered to life imprisonment - Accused Nos.

5 and 6 acquitted of all the charges - On appeal, held: -"! Conviction of accused Nos. 1, 4, 7 and 8 confirmed - Accused Nos. 5 and 6 also liable to be convicted - Prosecution case proved - Confessional statements corroborated by the evidence of witnesses, recoveries and confessional statements of co-accused - Confessional statements recorded in compliance with the MCOC Act and Rules - Conviction under MCOC Act can be based solely on the basis of confessional statement of accused as also on the basis of confessional statement of the co-accused - All the -f accused sentenced to life imprisonment - In the facts of the "' case, capital punishment to accused No. 7 not justified - Maharashtra Control of Organized Crime Act, 1999 - s. 18 - Maharashtra Control of Organized Crime Rules - r. 36 - Sentence/sentencing - Death sentence.

Sentence/Sentencing - Death sentence - 'Rarest of rare' rule - Application and nature of - Need to give an objective value to the term 'rarest of rare' - Application of article 14 to 8 award of death sentence - Constitution of India, 1950 - Article 14. Appellants-accused were prosecuted under various t • provisions of IPC, Maharashtra Control of Organized Crime Act, 1999 and also under provisions of Arms Act, 1950. They were alleged to have hatched a conspiracy to eliminate 'M' and with that common object, they aided each other for causing the murder. Appellants were said to be belonging to the gang of fugitive criminal who allegedly operated his organized crime activities from Karachi, Pakistan. He was also aided by another gang leader. The appellants had been provided with arms and ammunitions and money by the fugitive criminals. Special court acquitted accused Nos. 2 and 3 while convicting the six appellants-accused. Accused Nos. 5, 6 and 7 were sentenced to death.

Convicted accused filed appeal before High Court. Death sentence was also referred to High Court. High Court confirmed the conviction of accused No. 1 uls. 3 (2) of MCOCA rlw s. 120-B IPC and acquitted him uls. 212 rlw ss. 52A and 120-B IPC. Conviction of accused Nos. 4, 7 and 8 was confirmed. However, death sentence of accused No. 7 was substituted to life imprisonment. Accused Nos. 5 and 6 were acquitted of all the charges. Hence the present appeals by the convicted accused and ... t by State against acquittal of accused No. 1 and acquittal of accused Nos. 5 and 6 and against substitution of death sentence to life imprisonment of accused No. 7. MAHARASHTRA Dismissing the appeal filed by accused Nos. 1, 4 and ' ! ' J-4 8; dismissing State's appeal against accused Nos. 1 and 7; and partly allowing State's appeal against accused Nos. 5 and 6, the Court HELD: Per Dr. Mukundakam Sharma, JJ: 1. 1. Accused No.

1 is guilty of all the charges which ~· +- were already found to be proved and established by the trial court and affirmed by the High Court. The sentence passed by the High Court is confirmed and the punishment awarded by the trial court u/s. 212 rlw Section 52(A) rlw. Section 120-8 IPC is also restored. [Para 58] [1148-B] 1. 2. Conviction under Maharashtra Control of .... Organized Crime Act, 1999 could be based solely on the basis of the confessional statement and such conviction is also permissible on the basis of the confessional statement of the co-accused which could be used and relied upon for the purpose of conviction. [Para 59] [1148- CJ ... ,. -r State v. Nalini (1999) 5 SCC 253; Devender Pal Singh v. State of NCT of Delhi (2002) 5 SCC 234; Jameel Ahmed v. State of Rajasthan (2003) 9 sec 673, relied on. 1. 3. Though it is proved and established from the records that accused No. 1 did not himself participate in the actual shootout, it is alleged against him that he was ..

,a part of the gang and he was in touch with the gang leaders in Karachi (Pakistan) and he also acted on behalf --i ~ of the said gang so much so that he had effected payment of money arranged by the leaders of the gang to accused Nos. 5, 6, and 8 for causing the shootout. The evidence placed before this court clearly establishes that accused No. 1 was responsible for procuring a pistol and 1096 SUPREME COURT REPOR~S [2009] 12 S. C. R. handing over the same to accused No. 5 which was used in the shootout. The said fact is also established and "'-. proved by the confessional statement of accused No. 5. [Paras 47 and 48] [1142-B-F] 1. 4. The confessional statement of accused No. 1 substantially complies with the requirements of Section 18 of Maharashtra Control of Organized Crime Act, 1999 (MCOCA) r/w. rule 3 (6) of Maharashtra Control of Organized Crime Rules (MCOC Rules).

It was a t + categorical case of the prosecution that PW-51 who recorded the said confessional statement was never involved with the investigation of the case. On going through all the material available on record, the High Court came to the categorical finding that the aforesaid confessional statement was made voluntarily and while recording the same, post confessional formalities were followed. It was held by the High Court that although the confessional statement does not bear any certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules, it nevertheless complies with the requirements of Section 18 MACOCA. Apart from that, there is ·also evidence on record indicating that accused No. 1 made several phone calls to gang leaders in Pakistan from various phone booths. The said fact is also accepted by the trial court as well as by the High Court. [Paras 51 and 52] [1145-E-H; 1146-A-C] 1. 5. The confessional statement of accused No.

8 was held to be admissible by both the courts below in which he had categorically stated that he knew accused No. 1 from childhood and that accused No. 1 had brought him to act as a driver in the said shootout and also paid him Rs. 10,000/- for the job. Accused No. 8 in his confessional statement had also stated that accused No. 5 visited accused No. 1. The confessional statements of MAHARASHTRA accused No. 5 and 6 are also relevant to prove and establish the involvement of accused No. 1 with the incirf,:-. -,t. [Paras 53 and 54] [1146-D-E] 1. 6. The High Court while disbelieving the confessional statements of PWs 5 and 6, ignored the fact 8 that there is evidence of PW-64, the typist who had deposed that the preliminary warning was in fact given which was so recorded. Considering the facts and circumstances of the case, there is no reason, not to accept the said statement of PW-64, the typist.

The aforesaid confessional statement of the co-accused cou_ld be the basis of conviction under the provisions of MCOCA. [Paras 56 and 57] [1147-E-G-H; 1148-A] 1. 7. There is also evidence of other witnesses namely PW-21, owner of an STD booth. He stated that accused No. 1 made a phone call to a specific number in Karachi (Pakistan). PW-35, who is the owner of another phone booth stated that he personally knew accused No. 1. He deposed that accused No. 1 would come to his booth regularly to make phone calls to Pakistan. PW-37, who was another witness stated in his evidence that accused No. 1 had made calls on specified numbers in Pakistan on certain dates. Evidence of PW-37 is also found to be corroborated by the evidence of PW-54. Similar is the evidence of PW-43 who deposed that calls were made by accused No. 1 to Pakistan. [Para 55] [1147-B-D] 2. 1. There is no reason to interfere with the findings recorded by the High Court so far as involvement of ....... accused No.

4 in the incident is concerned. There are cogent and convincing evidence available against him to prove and establish his involvement in the entire incident which justifies his convictions and sentences on each count. The High Court rightly held that accused No. 4 had played an active and important role in the conspiracy even though he did not participate in the actual shoot out and that he had the knowledge of the conspiracy. [Para )'.. ~ 71] [1159-D-G] .. 2. 2. Accused No. 4 he was an active member of the gang who actively participated in the activities of the organized crime syndicate which fact is corroborated by his confessional statement. [Para 65] [1157-D] 2. 3. The confessional statement of accused No. 4 is trustworthy and reliable. It is evidently clear from the t ~ records that his confessional statement was found to be in substantial compliance with the requirements of Section 18 of MCOCA.

The High Court came to the categorical finding that post confessional formalities have been followed and although the confessional statement does not bear a certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules, there is , . nevertheless compliance of Section 18 of MCOCA. There is no plausible ground to discard the view taken by the High Court in this regard. [Para 66] [1157-E-H] 2. 4. The confessional statement is supported by the deposition of PW-53, who deposed that accused No. 4 led the police to the place from where he had bought six I- ' or seven mobile phones. The aforesaid confessional statement is also supported by the evidence of the Manager of a Petrol Pump, who corroborated the fact that the aforesaid Maruti car was brought by accused No. 4 to his petrol pump for repairs and servicing. Further, the evidence of PW-20, a pancha witness, whose name was . ; kept secret, establishes and proves that accused No.

4 led the police to the said petrol pump. Accused No. 4 also .. led the police to Motor Training School wherefrom he ! obtained a duplicate driving license in the name in his brother. The evidence of PW-15 the real owner of the Maruti Car, proves that the car was stolen and that he had MAHARASHTRA _,.. Ii ,. , incident to anybody for four days. His evidence ought to have been relied upon by the High Court as he clearly stated in his evidence that though he did not see the faces of the assailants, he saw the face of accused No. 8. He stated that PW 3 chased the car with a rifle. He also noted the number of the car. His statement gets support from the evidence of PW-3, who was an eye-witness of the incident and from the evidence of PW-30, who was ,.. -. an injured witness of the incident. Therefore, it would not be proper and justified to discard his evidence only because he did not state about the incident to anyone for four days.

Since his evidence is corroborated and supported by other material evidence on record '1he same ' cannot be discarded only because of the aforesaid reason. [Para 78) (1164-A-E] . --;. - 3. 7. The injured witnesses as well as the other eyewitnesses have no reason to falsely depose against the accused persons as it was not shown that they had either any prior enmity with the accused persons or they are interested parties. In fact, they are the victims of the horrendous and ghastly attack made by the perpetrators. .... [Para 79) (1164-H; 1165-A) 3. 8. PW-2 and PW-3, who were the bodyguards of the intended target, were eye-witnesses of the incident. Their statements are corroborated by the evidence of PW-30. Their Statements are also supported by the evidence of another eye-witness PW-13. Both of them were the persons who actually witnessed the shootout and were present at the site of the shootout.

Furthermore, both of them have given a description of the physical features of ~ -4 the assailants including Accused Nos. 5 and 6. Therefore, the High Court ought to have relied upon the evidence of PWs-2 and 3 in the light of the circumstantial evidence brought on record. The trial court rightly found the evidence of PW-2 and 3 trustworthy and reliable as both of them have the best available opportunity to see the assailants. [Para 80) [1165-8-F] 3. 9. On an analysis·of the confessional statement of accused No. 5 it is found that he has made a detailed 8 statement of the instructions he received from the leaders of the gang to kill the intended target and has stated the involvement of accused Nos. 1, 6, 7 and 8 in the shootout. [Para 81) [1165-G-H; 1166-A] * . 3. 10. Accused No. 6 stated about his earlier involvement in murder cases in his confessional statement. He also stated as to how he met accused No. 5 and that accused No. 5 introduced him to the gang.

Confessionat statement of accused No. 6 is found to be almost identical to the confessional statement of accused No. 5. [Para 82] [1166-C] ~ · 3. 11. On analysis of the material on record and. the confessional statements of accused Nos. 5 and 6, it is found that although the fact that the pre-confessional statements were recorded on 23. 07,1999 is not traceable, the fact that they were actually recorded is corroborated by the evidence of PW-64, the typist who had deposed that the preliminary statements were recorded on 23. 07. 1999. Thereafter, they were given a period of reflection for 48 hours which is corroborated by PW-60, PW-63 and PW-64. Therefore, there can be no doubt that the accused were sufficiently warned in advance about the consequences of their confessions. The High Court altogether failed to take into account the evidence of PW- 64, the typist. The trial court has rightly held that all the requirements u/s. 18 (3) of MCOCA were fully complied ..

_ with while recording the confessional statements. [Para 84) [1166-F-H; 1167-A] MAHARASHTRA 3. 12. Accused Nos. 7 and 8 also described the involvement of accused Nos. 5 and 6 in the shootout in their respective confessional statements. The confessional statements are consistent with the confessional statements of accused Nos. 5 and 6. [Para 84] [1167-8-C] Jaywant Dattatray v. State of Maharashtra (2001) 10 sec 109, relied on. 3. 13. The reasoning of the High Court that the confessional statements of the co-accused are not admissible in evidence because Section 313 CrPC had not been complied with, is not tenable as there is a nonobstante clause in Section 18 (3) which precludes the application of CrPC and, therefore, the evidence of a coaccused is admissible as a piece of substantive evidence. [Para 85] [1167-D] State vs. Nafini (1999) 5 SCC 253, relied on. 3. 14.

The report of the ballistic expert shows that the weapon and bullets tally with each other and, therefore, the court comes to a clear conclusion that the weapon was used in firing during the shootout. Moreover, there is a clear finding of fact by both the courts below that the 9 mm pistol was recovered at the instance of accused No. 5 from his hut. Therefore, this recovery of weapon clearly proves and establishes the guilt of accused No. 5. [Para 86] [1167-E-G] 3. 15. It is clear from the material on record that accused No. 5 made certain telephone calls to gang leaders in Karachi, Pakistan. This fact gets corroboration from the discovery of 3 telephone booths at the instance of accused No. 5 wherefrom telephone calls were made by him to the gang leaders. This evidence gets further corroboration from the evidence of the owners of the ~ . telephone booths. Therefore, the view taken by the High Court with respect to accused No.

5 is not a plausible view as the same is in contradistinction of the view taken by the High Court with regard to other accused persons. • [Para 87] [1167-H; 1168-A-E] 3. 16. The High Court erroneously held that conviction u/s. 27(3) rlw Section 7 of the Arms Act could not be sustained although a 9 mm pistol was recovered * . at the instance of accused No. 5 and it is proved that accused No. 5 had used the pistol. Further, the report of the. ballistic expert establishes and proves that the weapon and the bullets tally each other. The ballistic expert also opined in the report that one of the victims of the shootout was killed due to a bullet from a 9 mm pistol. Apart from the report of ballistic expert there is . ; ' medical evidence available on the record which show that the death of the three deceased persons was caused by the injuries sustained due to fire arms during the shootout and, therefore, it can be inferred that the weapon was used in the shootout. Accused No.

6 had also used the pistols and fired during the shootout. [Para 88] [1168- F-H; 1169-A] ,. 3. 17. The finding of the High Court that the sanction order u/s. 39 of the Arms Act suffered from nonapplication of mind is not sustainable in view of the material available on record. The sanction order in the present case is a detailed one and displays proper application of mind. [1169-B] Gunvantlal v. State of M. P. (1972) 2 SCC 194, relied .. , /-' on. 4. 1. Even though Accused No. 8 has not fired any shot and he was not carrying any arms with him but he MAHARASHTRA played an active role in the crime and his participation in the crime was significant. He was the person who took the assailants to the place of incident by driving the stolen Maruti car and he received the money for driving the car which fact was admitted by him in his confessional statement.

It is also clear from the records that he was an active member of the gang and was involved in the criminal activities of the organized crime syndicate run by the gang leaders. Therefore, the order of conviction and sentence passed by the High Court against him is upheld. The sentence of imprisonment of life is maintained on the same ground. [Paras 98 and 99) [1172-C-D; 1173-B] 4. 2. The confessional statement of accused No. 8 was recorded under Section 18 of MCOCA. The statement is found to be admissible in evidence and relied upon by ·- y both the courts below having been found to be recorded in compliance with Section 18 of MCOCA. The statement has given a detailed account of the incident and the modus operandi of the accused persons. He has given complete description of the role played by Accused Nos. 5, s· and 7 in the shootout. [Para 95) [1171-8-C] 4. 3. The confessional statement of accused No. 8 is supported by the confessional statements of the coaccused namely, accused Nos.

5, 6 and 7. The confessional statement of accused No. 7 which is found ·' I to be admissible in evidence and relied upon by both the courts below clearly establishes the role played by Accused No. 8. The role played by accused No. 8 is also proved and established from the evidence of PW-22, who has given a sufficiently detailed account of what he saw on the day when the car was abandoned. He identified accused No. 8 in the TIP. Accused No. 8 was also identified by PW-13, an eye-witness to the crime. The High Court found the testimony of PW-22 as truthful and trustworthy. [Para 96) [1171-E-G] 4. 4. Evidence of PW-54, and PW-31, pancha witness proves that accused No. 8 led the police to the palce where his parents were also present and he took out two 8 number plates of the car from the place which was used in the shootout wrapped in a paper underneath a wooden bench. [Para 97) [1171-H; 1172-A-8] + • 5.

Considering the entire facts and circumstances of the case and the evidence placed on record against accused No. 7, it is found that capital punishment in the instant case would not be justified and, therefore, the appeal of the State so far the issue with regard to alteration of the sentence of imprisonment of life to that of capital punishment is dismissed. [Para 91) [1170-8-C] PER S. 8. SINHA, J. (Supplementing) 1. The review courts are supposed to assess the findings emerging from the pre-sentencing hearing at the trial stage as also other available material and then arrive at conclusion of its· own on the propriety of sentence. Apex Court as the final reviewing authority has a far more serious and intensive duty to discharge. The court not only has to ensure that award of death penalty does not become a perfunctory exercise of discretion u/s.

302 IPC after an ostensible consideration of rarest of rare doctrine, but also that the decision making process survives the special rigors of procedural justice applicable in this regard. [Para 6] [1174-H; 1175-A-C] Bachan Singh v. State of Punjab 1980 (2) SCC 684; Santosh Kumar Satishbhushan Bariya v. State of Maharashtra 2009 (7) SCALE 341, relied on. 2. Administration of death penalty is carried out in MAHARASHTRA the intensive gaze of Article 14 and Article 21 requirements of the Constitution of India. Article 14 applies to judicial process including exercise of judicial discretion as it applies to the executive process. The nature of Article 14 application in this case will be on a different plane altogether and an objective analysis on that count would have to meet the Ceteris paribus (with other things the same) requirement. [Para 6 and 7) [1175- D; 1176-A-B] Aloke Nath Dutt and Ors. vs. State of West Bengal 2006 (13) SCALE467; Swamy Shraddananda @ Murli Manohar Mishra v.

State of Kamataka 2008 (10) SC. ALE 669, referred to. 3. Rule based judging norms and sound rules of prudence are the only guarantee to fair and equitable sentencing. This emerges from the constitutional context to the administration of capital sentencing problem as also a closer reading of rarest of rare test. The assessment of "rarest of the rare case" is incomplete without coming to the conclusion that the "the lesser alternative is unquestionably foreclosed' and procedural fairness and justice concerns form part of the latter condition. [Para 8) [1176-D-F] 4. The selection of life imprisonment as a lesser alternative can not be deemed to be "unquestionably foreclosed" till the time objective fairness standards as to the sentencing process are attained with regard to capital sentence. Capital Sentencing is not a normal penalty discharging the social function of punishment.

In this particular punishment, there is heavy burden on court to meet the procedural justice requirements, both emerging from the black letter law as also conventions. In terms of rule of prudence and from the point of view of principle, a court may choose to give primacy to life imprisonment over death penalty in cases which are solely based on circumstantial evidence or where High Court has given a life imprisonment or acquittal. [Para 9 and 11] [1176-F-G; 1178-D-E] State of Maharashtra v. Suresh 2000 (1) SCC 471, referred to. 8 5. In the light of serious objections to disparity in sentencing by this court flowing out of varied interpretations to the rarest of rare expression, it is clear that the test has to be more than what a particular judge locates as rarest of rare in his personal consideration. There has to be an objective value to the term rarest of rare, otherwise it will fall foul of Article 14.

In such a scenario, a robust approach to arrive at rarest of rare situations will give primacy to what can be called the consensus approach to the test. In the tiered court system, an attempt towards deciphering a common view as to what can be called to be the rarest of rare, vertically across the trial court, High Court and apex court and horizontally across a bench at any particular level, will introduce some objectivity to the precedent on death penalty which is crumbling down under the weight of disparate interpretations. This is only a rule of prudence and as such there is no statutory provision to this effect. [Paras 12 and 13] [1178-F-H; 1179-B] Suthendraraja alias Suthenthira Raja alias Santhan and Ors. v. State AIR 1999 SC 3700; Devender Pal Singh v. State N. C. T. of Delhi and Anr. 2002 (5) SCC 234; Ucchamadevi v. State of Rajasthan AIR 1988 SC 1785; State of Maharashtra v. Suresh 2000 (1) SCC 471; State of U. P. v. Babu Ram 2000 (4) SCC 515; State of Maharashtra v.

Damu s/o Gopinath Shinde and Ors. 2000 (6) SCC 269; State of >- - Maharashtra v. Bharat Fakira Dhiwar AIR 2002 SC 16; State of Rajasthan v. Kheraj Ram 2003 (8) SCC 224; Devender Pal Singh v. State, N. C. T. Of Delhi and Anr. AIR 2003 SC MAHARASHTRA 886 and State of UP. v. Satish AIR 2005 SC 1000, referred ... ,,.. to. 6. Swinging fortunes of the accused on the issue of determination of guilt and sentence at the hand of criminal justice system is something which is perplexing for the Court when it comes to fair trial. The situation is accentuated due to the inherent imperfections of the system in terms of delay, mounting cost of litigation in High Courts and apex court, legal aid and access to )' crime. 8. After appellant No. 1 (Mohd.

Farooq) was arrested on 13th March, 1999, the Joint Commissioner of Police (Crime) granted permission to apply the provisions of Maharashtra Control of Organised Crime Ordinance, 1999 to the present case pursuant whereto the investigation was taken over by an Assistant Commissioner of Police namely, Pradeep Sawant (PW-61) from Pl Bharat Tambe on 26th March, 1999. He was said to have been supervising the investigation of the case in his capacity as ACP (Detection-I) and for effective and extensive investigation of the present case, he formed a team of 13 police officers. 9. In all there were eight accused persons namely, Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. ~ 1), Aslam Mohammed Kutti (Accused No. 2), Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3), Mansoor Hasan Haji Iqbal Pankar (Accused No. 4), Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5), Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No.

6), Azzizuddin Zahiruddin Shaikh alias Abdul Sattar (Accused No. 7) and ... ~ Abdul Hasan Sande Hasan Mistri (Accused No. 8) involved in the case. 10. Accused No. 1 (Appellant No. 1 herein) was arrested on 13th March, 1999 whereas Accused No. 4 (Appellant No. 2 herein) was arrested on 21st June, 1999 along with Accused Nos. 2 and 3. Accused Nos. 5 and 6 were arrested on 18th June, 1999 by the Special Cell of Delhi Police. Accused No. 7 was arrested on 15th June, 1999 with AK-56 rifle by Hazariganj • Police Station, Lucknow, U. P. and Accused No. 8 was arrested " on 21st July, 1999. 11. On 4th April, 1999 the Appellant No. 1 took police and panchas to certain places and STD booths on Mohd. Ali Road, Masjid Road, near J. J. Marg Police Station at Dongri wherefrom he used to contact Faheem. Appellant No. 1 made confessional statement on 10th April, 1999 regarding his '( ' involvement in the incident. It was recorded by DCP Parambir Singh (PW-51). 12.

On 25th June, 1999, Mansur Hasan (Accused No. 4) ' took police party to the garage of one Chaggan Vithal where he is said to have given the Maruti car used in the commission of the crime for repairs. He also showed to the police on 6th · July, 1999 an STD booth at Dongri wherefrom he had contacted Faheem and obtained mobile phones as well as a duplicate motor driving licence. At the instance of Mohd. Zuber (Accused No. 5) on 18th July, 1999, discovery of 9 mm China made pistol, which was found kept in a cup-board in a hut behind Mahim Bus Depot was made. His confessional statement was recorded on 30. 07. 1999 by Ravindra Kadam, DCP (Zone IV) who examined himself as PW- 39 which was however subsequently retracted. ~ 13. Confessional statement of appellant No. 2 was recorded on 30th July, 1999 by DCP Kadam who examined himself as PW-39. However, appellant No. 2 retracted his confession when he was produced before the Chief Judicial .. "" Magistrate. 14. On 9th August, 1999 Accused No.

5 led the police party to a telephone booth at Mahim wherefrom he had contacted Faheem and Chhota Shakeel in Karachi, Pakistan. Discovery of AK 56 rifle together with 5 cartridges which was found kept in a rexine bag on the loft of a hut behind Mahim Bus Depot was made on 17th July, 1999 at the instance of Azzizuddin .. ) (Accused No. 7). A finger print expert, who was called, found one chance finger print on the said rifle. Discovery of two plates from room No. 15 on the ground floor of building No. 1 in Kidvai Nagar, Wadala , was made at the instance of Abdul Hasan (Accused No. 8). 15. Confession of the aforementioned six persons was recorded by three DCPs namely, Mr. Kadam (PW-39), Mr. ). --. , Paramvir Singh (PW-51) and Mr. Shindre (PW-60). Test Identification Parade of accused Nos. 4 to 8 was conducted / on 10th August, 1999 by the Special Executive Officer who examined himself as PW-32. 16.

Upon completion of the investigation, a voluminous charge sheet was filed before the Designated Court on 8th v September, 1999. The charges were framed against all the aforesaid accused persons under various provisions of the Indian Penal Code, 1860 (for short 'the IPC') and the Arms Act. Considering the gravity of the crime and the fact that all the eight accused persons being members of organized crime syndicate of Chhota Shakeel, the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'MCOCA') were also invoked. All the aforesaid accused persons were charged for conspiring, abetting and facilitating L ~ I commission of the aforesaid crime as members of the said organized crime syndicate. 17. In the charge sheet Chhota Shakeel and Mohd. Faheem have been shown as the absconding accused. The ~.

;r1 prosecution case proceeded on the premise that all the accused had hatched a conspiracy to eliminate Milind Vaidya and with that common object in mind they aided each other for causing his murder. They were said to be in constant touch with Mohd. Faheem for the purpose of taking instructions from him on telephone. They had been provided with arms and ammunitions and money by the absconding accused persons namely, Chhota Shakeel and Mohd. Faheem. 18. Appellants herein are said to be belonging to the gang • • of fugitive criminal namely Chhota Shakeel who allegedly operates his organised crime activities from Karachi, Pakistan. He is also aided by another ganglord namely, Mohd. Faheem. Both of them are said to belong to the gang of underworld don Dawood Ibrahim. 19. All the eight accused persons allegedly being members of organized crime syndicate of Chhota Shakeel r . were charged under Sections 3(1) r/w 2(e) of MCOCA.

They were further charged of conspiring, abetting and facilitating commission of aforesaid crime as members of the said organized crime syndicate under Sections 3(2) of MCOCA read with Section 1208 of IPC. For their agreement to do the abovesaid illegal act they were also charged under Section 120-B IPC. 20. Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1) was separately charged under Sections 302, 307 read with Section 1208/34 and 109 IPC on the ground that he, in pursuance of the said conspiracy, was in constant contact on mobile with Faheem, collected money and also three mobile phones from Guddu and delivered the same to Accused Nos. 5 and 6, provided driver i. e. Accused No. 8 with the car facilitating commission of the crime and thus had the common intention to commit the crime. He was also charged under Sections 201, 34 IPC for assisting accused Nos. 5, 6 and 7 to cause disappearance of AK-56 rifle with intent to screen the offenders from legal punishment. 21.

Aslam Mohammed Kutti (Accused No. 2) was . / _. separately charged under Sections 302, 307, 1208 r/w 34, rt w 109 of IPC being in contact with Mohd. Faheem, who was in Karachi, Accused Nos. 2 and 3 collected weapons from Neeta from Mazgaon and handed it over to Accused Nos. 4 and 7 for using the same in the aforesaid offence. Further, Accused No. 2 purchased three mobile phones and handed over the same to Accused No. 4 thus, facilitated commission of crime as a member of conspiracy in furtherance of common intention. ... He was further charged under Sections 25(1A) and 25(18) of '" the Arms Act for possessing jointly with Accused No. 3 a rexin bag containing two 9 mm pistols and AK-56 rifle in contravention of Section 3 & 7 of the Arms Act. 22. Abdul Kadar Abdul Gafoor Rizvi (Accused No. 3) was . ,. charged under Sections 25 r/w 3 & 7 of the Arms Act for collecting jointly with Accused No. 2 a rexin bag from Neeta .

-, containing two pistols, one rifle for use in the aforesaid offence and handed over the same to accused Nos. 4 & 7 and thus committed offence of possession of unlicensed and prohibited arms in contraventions of Sections 3 & 7 of the Arms Act. He was also charged under Sections 302, 307 of IPC r/w 1208, 34 & 109 of IPC for delivering weapons to accused Nos. '4 and ~ 7 which were later used in the commission of the aforesaid ... , offence thus, facilitated commission of offence as a member of conspiracy and in furtherance of common intention. He was further charged under Sections 302, 307 r/w 34, 1208, and 109 of IPC for purchasing three mobile phones along with Accused No. 2 from Hira Panna Market to facilitate the aforesaid crime. 23. Mansoor Hasan Haji Iqbal Pankar (Accused No.

4) was charged under Sections 411 r/w 34 and 120-B of IPC for conspiring, as per the directions of Faheem, in collecting white " coloured Maruti 800 Car from Phila House, Mumbai and the aforesaid stolen car was used by accused Nos. 4 and 7 and . ,. , thus was a member of conspiracy and committed offence of . dishonestly receiving stolen property. He was further charged .... ' ' - under Sections 302, 307 r/w 34, 120-B and 109 of IPC for >- .. handing over the stolen car to Accused No. 8 which was actually used in the aforesaid offence. He was further charged under Section 201 r/w 34 and 120-B of IPC for taking over charge of two mobile phones from accused Nos. 5 and 7 after the aforesaid offence and for concealing the same in his house. 24. Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu, Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar, Azzizuddin Zahiruddin Shaikh alias Abdul Sattar and Abdul Hasan Bande • "' Hasan Mistri (Accused Nos.

5 to 8) respectively were charged under Sections 25 r/w 3 & 7 of the Arms Act for traveling in the stolen Maruti Car, carrying unlicensed pistols and prohibited firearms i. e. A-56 rifle in furtherance of conspiracy and common intention with accused Nos. 5 to 7. They were further charged under Sections 25 (1A), 25(18) r/w 3, 7 and 35 of the Arms Act for having joint possession/control of the said vehicle i. e. r , the stolen Maruti car which was used in the aforesaid crime and were aware of existence of fire arms in the vehicle. 25. Accused Nos. 5 to 7 were charged under Sections 3 (1) (i) of MCOCA read with Sections 302 & 1208 of IPC for committing the offenee of organized crime on behalf of the syndicate with the object of gaining advantage of syndicate and promoting insurgency. They were also charged under Sections 3 (1) (ii) of MCOCA read with Sections 307 & 1208 of IPC for firing with weapons, causing injuries and endangering the life of 7 persons.

They were further charged under Sections 302, 307 r/w 34 and 120-8 of IPC for being taken in a stolen Maruti Car by Accused No. 8 at the spot and for firing with their pistols and rifles on the victims. They were charged under Sections 25(1A), 25(18) and 27(3) of the Arms Act for possessing fire arms in contravention of Section 3 & 7 of the Arms Act. They ~ were also charged under Section 201 r/w 34 and 120-8 of IPC for hiding their respective fire arms knowing that they were used in commission of offence thus, attempted disappearance with an intention to screen the offender. ~ ,.. on. A card was prepared by him making certain noting ). .. regarding the number of the car, the repairs done to it, the name of the customer and his telephone number etc. A note was also made in the card stating "Do not take again for servicing". He, however, did not know Accused No. 4 earlier. He saw and identified Accused No. 4 for the first time in the court on 31st March, 2000.

However, the identification of Accused No. 4 was found to be doubtful. '{ ~ 29. The Special Court, Mumbai by its judgment and order dated 05. 09. 2000 acquitted Accused Nos. 2 and 3 and ... recorded judgment and order of conviction and sentence against the other six accused which are as under:- "I (a) The Accused No. 1 Mohammed Farooq Chipa {- Rangari is found guilty and convicted of an offence punishable under Section 3(2) of the Maharashtra Control r . , ·of Organised Crime Act, 1999 (hereinafter referred as "M. C. O. C. Act, 99") read with section 120-B l. P. C. and is ....... sentenced to Rigorous Imprisonment for ten years and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R. I. for three years. (b) The Accused No. 1 is also found guilty and ,. convicted of an offence punishable under section 3(4) of M. C. O. C. Act 99 read with section 120-B l. P. C. and is sentenced to R. I. for ten years and shall also pay fine in the sum of Rs. 5 lakhs.

In default of payment he shall under ll go R. I. for three years. (c) The Accused No. 1 is further held guilty and convicted for an offence punishable under Section 212 read with section 52-A read with section 120-B l. P. C. and ! >is sentenced to Rigorous Imprisonment for five years and shall also pay a fine in sum of Rs. 5000/-. In default of payment of fine he shall undergo R. I. for six months. IV. (a) The Accused No. 4 Mansur Hasan Haji Iqbal Pankar "' ,. , 26. Abdul Hasan Bande Hasan Mistri (Accused No. 8) was . separately charged under Sections 302, 307 r/w 34 and 120- B of IPC for taking Accused Nos. 5 to 7 in Maruti car in furtherance of conspiracy and common intention thereby facilitating the crime of murder and fatal injuries. He was also charged under Sections 424, 414 r/w 34 and 120-8 of IPC for 8 dishonestly receiving the stolen Maruti Car and changing the number plate and thus assisting in concealment of stolen property in furtherance of conspiracy and common intention.

He ~ )' was further charged under Section 212 of IPC for harbouring Accused Nos. 5 to 7 in stolen Maruti Car immediately after the aforesaid offence with the intention of screening them. 27. ·1n support of its case the prosecution examined 64 witnesses out of them 5 were eye witnesses including the injured persons. Six STD/ISO booth owners were also . . ,. examined to prove that some of the accused had made telephone calls from their booths to Karachi, Pakistan. 4 witnesses were examined to depose about subsidiary circumstances. 14 witnesses were panch witnesses. 4 medical officers were examined to prove the post-mortem reports as well as the certificates of injuries. 25 Police Officers including two investigating officers were also examined. 5 other ... witnesses were examined on different points. A large number of documents were produced by the prosecution. 28. Sabiul Hasan (PW-15) was the owner of the Maruti car bearing registration No. MH-03-H-1759 which was stolen. He ...

had lodged a complaint to that effect on 30th January, 1999. The evidence of PW-20, who is a panch witness, established recovery of the car on 25th June, 1999. Accused No. 4 led police to a garage situated opposite to Chhagan Mitha Petrol Pump where the car was given for repair. Manager of petrol . (i) Shri Babu Kashinath Mangela, aged 40 years. (ii) Shri Niteen Narayan, aged 43 years. (iii) Shri Murguan V. Tewar, aged 26 years In default of payment of fine he shall undergo R. I. for one year. ~ (f) The Accused No. 5 is also convicted of an offence " punishable under section 3(2) M. C. O. C. Act 99 read with Section 120-B l. P. C. and is sentenced to suffer'~.!. for life and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R. I. for three years. (g) The Accused No. 5 is also convicted of an offence .. .. ,. punishable under section 3(4) M. C. O. C. Act 99 read with section 120-B l. P. C. and is sentenced to suffer R. I.

for life and also pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R. I. for three years. VI. The Accused No. 6 Fa? al Mohd. Shaikh @ Manni Argamutu Shetiyar is found guilty and- (a) Convicted for an offence punishable under Section 302 l. P. C. read with section 3(1)(i) of M. C. O. C. Act 99 read with Section 34 and section 120-B l. P. C. for causing murder of- (i) Shri Milind Gunaji Chaudhari, aged 34 years (ii) Shri Vilas Gopinath Akre, aged 28 years (iii) Shri Deepak Sitaram Akre, aged 30 years. -\ And is hereby sentenced to death. He shall be hanged by neck till he dies. (b) (i) Convicted for an offence punishable under section 27(3) read with section 7 of the The Arms Act 1959 read .. _ .. with section 120-B 1. P. C. and is hereby sentenced to death. He shall be hanged by neck till he dies. (iii) also convicted for an offence punishable under section 25(1-A) of the The Arms Act and is sentenced to R. I.

for ten years and payment of fine in the sum of Rs. 5000/-, and in default of payment of fine to undergo further R. I. for one year. "1 " (c) Convicted for an offence punishable under Section 307 J. P. C. read with Section 3(1)(ii) of the M. vu. c. Act 99 read further with Section 34 and 120-B l. P. C. for attempted murder of Ex-Mayor and sitting Corporator of Bombay Municipal Corporation Shri Milind Dattaram Vaidya aged 35 years and sentenced to R. I. for life and shall pay fine in the sum of Rs. 5 lakhs and in default ;-- . of payment of fine to undergo further R. I. for three years. (d) Convicted for an offence punishable under Section 3(2) of the M. C. O. C. Act 99 read with section 120-B l. P. C. for facilitating the organized crime and is sentenced to suffer R. I. for life and to pay fine in the sum of Rs. 5 lakhs and in .. , default of payment of fine to undergo further R. I. for three years.

(e) Convicted for an offence punishable under Section 326 read with section 34 and section 120-B l. P. C. further read with Section 3(i)(ii) of the M. C. O. C. Act 99 for causing grievous hurt to- (i) Shri Nischal Krishna Choudhari aged 27 years (ii) Shri Vinay Narayan Akre, aged 31 years. and is sentenced to undergo R. I. for ten years and payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo R. I. for two years. (f) also convicted for an offence punishable under Section 324 l. P. C. read with Section 3(1)(ii) of M. C. O. C. Act 99 read further with Section 34 and 120-B l. P. C. for causing fire arm injuries to persons namely- (i) Shri Babu Kashinath Mangela, Aged 40 years. (ii) Shri Niteen Narayan, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years. •. and is hereby sentenced to R. I. for five years and shall pay "' fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo RJ for one year. VII. The Accused No.

7 Azizuddin Zahiruddin Shaikh @ Abdul Sattar is found guilty and- (a) Convicted for an offence punishable under ~ -;- Section 302 read with section 3(1)(i) of the M. C. O. C. Act 99 read further with section 34 and 120-8 l. P. C. for ... causing murder of- (i) Shri Milind qunaji Chaudhari, aged 34 years. (ii) Shri Vilas Gopinath Akre, aged 28 ye"rs (iii) Shri Deepak Sitaram Akre, aged 30 years. and is hereby sentenced to death. Accused No. 7 shall be hanged by neck till he dies. (b) (i) Convicted for an offence punishable under section 27(3) read with Section 7 of the The Arms Act, 1959 and is hereby sentenced to death. He shall be hanged by neck till he dies. (ii) Also convicted under section 25(1-A) of the The Arms Act for possession of AK-56 rifle prohibited arms and is sentenced to suffer R. I. for ten years and payment of fine in the sum of Rs. 5,000/- and in default of payment of fine to undergo R. I. for one year. (c) Convicted of an offence punishable under Section 307 1. P. C.

read with section 3(i) (ii) of M. C. O. C. Act 99 further read with section 34 and 120-8 l. P. C. for attempted 8 murder of Ex-Mayor and sitting Corporator of Bombay Municipal Corporation Shri Milind Dattaram Vaidya, aged 35 years and is sentenced to undergo R. I. for life and payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo R. I. for three years. (d) Convicted for an offence punishable under Section 326 read with section 120-8 l. P. C. further read with Section 3(i) (ii) of M. C. O. C. Act 99 for causing grievous hurt to-- (i) Shri Nischal Krishan Choudhari, aged 27 years +- • (ii) Shri Vinay Narayan Akre, aged 31 years. -and is sentenced to suffer R. I. for ten years and payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo further R. I. for two years. (e) Convicted for an offence punishable under section 324 l. P. C. read with section 3(1)(ii) of M. C. O. C. Act read further with section 34 and 120-8 l. P. C.

for causing fire arms injuries to persons namely, (i) Shri Babu Kashinath Mangela, Aged 40 years (ii) Shri Niteen Narayan Akre, aged 43 years (iii) Shri Murguan V. Tewar, aged 26 years and is hereby sentenced to R. I. for five years and shall pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo R. I. for one year. (f) Convicted of an offence punishable under Section 3(4) :"· of the M. C. O. C. Act read with Section 120-8 l. P. C. and is sentenced to R. I. for life and fine in the sum of Rs. 5 lakh and in default of payment of fine to further undergo R. I. for j three years. VIII. The Accused No. 8 Abul Sande Hansan Mistry is found guilt and -- · (a) Convicted of an offence punishable under Section 302 .. ~ read with section 34 l. P. C. read with Section 3(1)(i) of M. C. O. C. Act 99 read further with section 109 read with section 120-8 l. P. C. and is sentenced to undergo R. I. for life and shall·pay fine in the sum of Rs.

1 lakh and in default of payment of fine to undergo R. I. for three years. (b) Convicted of an offence punishable under Section 307 l. P. C. read with section 3(1)(ii) of M. C. O. C. Act 99 read • "twith Section 34, 109 and 120-8 l. P. C. for attempted murder of Shri Milind Dattaram Vaidya, aged 35 years and is sentenced to R. I. for life and shall pay fine in the sum of ---- Rs. 5 lakhs and in default of payment of fine to undergo further R. I. for three years. (c) Convicted under section 326 l. P. C. read with section 3(1)(ii) of M. C. O. C. Act 99 read with section 34 l. P. C. for causing grievous hurt to - (i) Shri Nischal Krishna Choudhari, aged 27 years. (ii) Shri Vinay Narayan, aged 31 years and is sentenced to undergo R. I. for ten years and payment of fine in the sum of Rs. 5 lakhs and in default of payment of fine to undergo further R. I. for two years. (d) Convicted also for an offence punishable under Section 324 read with (34, 109) and 120-B l. P. C.

read with section 3(1 )(ii) of M. C. O. C. Act 99 for causing fire arm injuries caused to-- (i) Shri Babu Kashinath Mangela, Aged 40 years, (ii) Shri Niteen Narayan, aged 43 years ,_;,- (iii) Shri Murguan V. Tewar, aged 26 years. and is sentenced to R. I. for five years and fine in the sum of Rs. 5 lakhs and in default of payment of fine to suffer R. I. ,. .. for six months. (e) Convicted for an offence punishable under section 201 l. P. C. read with section 120-8 l. P. C. and is sentenced to R. I. for five years and shall pay fine in the sum of Rs. 5,000/- and in default of payment of fine to undergo further R. I. for six months. r . (f) Convicted for an offence punishable under Section 424 IPC and is sentenced to R. I. for two years. - (g) Convicted for an offence punishable under section 414 l. P. C. and is sentenced to suffer R. I. for three years.

" • As regards fine, the Special Judge directed :- "Thirty percent of the amount of total fine if recovered shall be paid towards compensation payable under section 357 Cr. P. C. to family members of three victims in 1/3 share for each victim who were died. This is without prejudice to their rights to recover compensation· independently at Civil Law. Twenty percent of the amount of total fine if recovered be paid as compensation payable under section 357 Cr. P. C. to each of the of the injured, Viz. (i) Shri Milind Dataram Vaidya ---'· ~ (ii) Shri Nischal Krishna Choudhari (iii) Shri Vinay Naryan Akre in equal shares. This is without prejudice to their right to ....... recover compensation at Civil law. Fifty percent of the amount of total fine if recovered appropriate by State of Maharahstra towards defrayal of costs/expenses of the prosecution properly incurred. " • ~ 30. Feeling aggrieved by the aforesaid judgment and order dated 05. 09.

2000 passed by the Special Court, Mumbai Accused No. 7 filed Criminal Appeal No. 661 of 2000; Accused Nos. 1, 5 and 6 preferred a common appeal which was registered as Criminal Appeal No. 679 of 2000; Accused No. 8 filed Criminal Appeal No. 753 of 2000; and Accused No. 4 .. -+- filed Criminal Appeal No. 758 of 2000 in the High Court of Bombay. The State of Maharashtra did not prefer any appeal . against the aforesaid judgment and order of acquittal of Accused Nos. 2 and 3. So far as the death sentence imposed by the Special Judge against Accused Nos. 5, 6 and 7 is concerned, the matter was referred to the High Court for confirmation ·which was registered as Confirmation Case No. 1 of2001. 31. The Division Bench of the High Court by its impugned -. judgment and order dated 17. 12. 2003 confirmed the conviction of Accused No.

1 under Section 3(2) of MCOCA read with Section 120-B IPC and under Section 3(4) of MCOCA read ' with Section 120-8 IPC and acquitted him of the charges under Section 212 read with Section 52A and Section 120-8 IPC. The appeal filed by Accused No. 4 was dismissed and his conviction and sentence on all counts were confirmed. So far as Accused Nos. 5 and 6 are concerned, they have been acquitted of all the charges by the High Court. Though conviction of Accused No. 7 was confirmed under Sections 302 read with Section 34, 120-8 of IPC read with Section 3(1)(i) of MCOCA, his death sentence was substituted by rigorous -' . (1) Whoever commits an offence of organised crime shall.

- (i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac; (ii) in any other case, be punishable with imprisonment for '~ -+ a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised ... crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. Section 3 of the Arms Act, 1959 reads as-fotlews;- "Sect.

ion 3 - Licence for acquisition and possession of firearms and ammunition [(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions H, of this Act and the rules made thereunder: .. ... , Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. [(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section ~ ...

(3), shall acquire, have in his possession or carry at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the ~ . officer in charge of the nearest police station, or subject to the conditions prescribed for the purposes of subsection (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section. .. (3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

(4) The Provisions of sub-section (2) to (6) (both inclusive) of section 21 shall apply in relation any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arms or ammunition under sub-section (1) of that section. ]" Section 7 of the Arms Act, 1959 reads as follows: "Section 7 - Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ,. _ ~ ammunition No person shall- (a) acquire, have in his possession or carry; or (b) [use, manufacture,] sell, transfer, convert, repair, test or prove; or sale or transfer or have in his ~ ). (c) expose or offer for possession for sale, transfer, conversion, repair, test or proof; any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.

" ~ -'t Section 25 - Punishment for certain offences [(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine. (1 B) Whoever-- (a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3;or (b) acquires, has in his possession of carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or (c) sells or transfers any firearm which does not bear the .. name of the maker, manufacturer's number or other ...

identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or 8 (d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (iii) of clause (a) of subsection (1) of section 9 applies. acquires, has in his possession or carries any firearm or ammunition in ~ ~ contravention of that section; (e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or (f) brings into, or take out of, India, any arm or ammunition in contravention of section 1O; or . '" (g) transports any arms or ammunition in contravention of section 12; or .... .

(h) fails to deposit arms or ammunition as required by subsection (2) of section3, or sub-section (1) of section 21; (i)being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account of the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept; shall be punishable with imprisonment for a term which shall not be less than 5 [one year] but which may extend ~ ·-· to three years and shall also be liable to fine; Provided that the Court may for any adequate and special reason to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6 [one year]" Section 35 of the Arms Act, 1959 reads as follows: , "Section 35 - Criminal responsibility of persons in ).

occupation of premises in certain cases Where any arms or ammunition in respect of which any offenc! 3 under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of _, } the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone. " 45. Now we propose to deal with the various aspects of the contentions raised in respect of each of the accused persons separately. 46. We first proceed to deal with the case of Mohammed Farooq Abdul Gafur Chipa Rangari (Accused No. 1) who was arrested on 13. 03. 1999. Mr. Zafar Sadique, learned counsel appearing for Accused No. 1 very forcefully submitted before us that Accused No.

1 was convicted only on the basis of the confessional statement but there is no corroboration of the said confessional statement. It was also submitted that even no -J allegation regarding making of any confessional statement was put to the accused when he was examined under Section 313 CrPC. It was further submitted that since the aforesaid confessional statement was inadmissible against a co- accused and the same not being a part of Section 313 CrPC, the sentence passed against the said accused is liable to be ... . ,.. set aside and quashed. 47. The aforesaid submission when examined in the light of the records does not find favour. Though it is proved and established from the records that Accused No.

1 did not himself participate in the actual shootout, it is alleged against him that he was a part of the gang of Chhota Shakeel, that he was in touch with the gang leaders in Karachi (Pakistan) and he also ,_ ~ acted on behalf of the said gang so much so that he had effected payment of money arranged by the leaders of the gang to Accused Nos. 5, 6, and 8 for causing the shootout. It was submitted by the Public Prosecutor appearing for the State of Maharashtra that Accused No. 1 paid Rs. 25,000/- to Mohd. Juber Kasam Shaikh alias Tabrej alias Jugnu (Accused No. 5) on 06. 03. 1999 and Rs. 10,000/- to Abdul Hasan Bande Hasan Mistri (Accused No. 8). He pointed out that the allegation is that ; . Accused No. 1 had paid a similar amount even to Fazal Mohd. Shaikh alias Manni Argamutu Shetiyar (Accused No. 6). 48. The evidence that is placed before us clearly establishes that Accused No. 1 was responsible for ·procuring pistol and handing over the same to Accused No. 5 which . ,.

was used in the shootout. The said fact is also established and proved by the confessional statement of Accused No. 5. Whether or not the said confessional statement could be used against a co-accused is a different matter which we will discuss at an appropriate stage. 49. Evidence is also available to prove and establish the fact that Accused No. 1 is also responsible for arranging a driver i. e. Accused No. 8 who drove the car which was used in the shootout. 'The other material which is placed against Accused No. 1 is his own confessional statement recorded under Section 18 of MCOCA. The legality of the aforesaid confessional statement is, however, challenged by Accused No. 1 on the ground that the same does not bear a certificate in the identical terms as specified under Rule 3(6) of the MCOC . , 7- Rule~ and that the same was recorded by Parambir Singh (PW- 51) who was an officer associated with or interest in the investigation of the same. 50.

A perusal of Section 29 of MCOCA shows that it confers a rule making power on the State. The State of Maharshtra in exercise of the said power under sub-section (1) of Section 29 of the Act framed rules known as 'Maharahstra Control of Organised Crime Rules, 1999'. Rule 3 provides for , - the procedure to be followed for recording of confession under Section 18 of MCOCA.

Section 18 of the MCOCA reads as follows: "Section 18 - Certain confessions made to police officer to be taken into consideration (1) Notwithstanding anything in the Code or in the Indian , -~ Evidence Act, 1872 (I of 1872), but subject to the provisions of this section, a confession made by a person before police officer not below the rank of the Superintendent of Police ad recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator: Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(3) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against _,.. him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession 8 about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same. (4) Every confession recorded under sub-section (1) shall . ; be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special court which may take cognizance of the offence.

(5) The person whom a confession had been recorded ~ . under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial - Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay. + (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon. " Further, Rule 3(6) of the Rules reads as follows:- "3. Procedure for recording of confession under Sector 18 of the Act.

) 7- (6) The confession recorded under sub-rule (5) shall, if it is in writing, be signed by the person who has made such confession and by the Police Officer, who has recorded the said confession. Such Police Officer shall, under his own hand, also make a memorandum at the end of the confession to the following effect:- "I have explained to (name of the confessor) that he ... ~ is not bound to make a confession and that, if he does so, any confession that he makes, may be used as evidence against him and I am satisfied that this confession has been made voluntarily. It has been made before me and in my hearing and has been recorded by me in the language in which it is made and as narrated by, the confessor. I have read it over to the confessor and he· has ~ ·'I admitted it to be verbatim and correct, and containing also full and true account of the confession/statement made by him. " 51.

We have perused the aforesaid confessional statement which substantially complies with the requirements of Section 18 of MCOCA read with the aforesaid rule. 52. It was a categorical case of the prosecution that Parambir Singh (PW-51) who recorded the said confessional statement was never involved with the investigation of the case. The prosecution has also brought on record that Pl Yashwant Puntambekar (PW-36) of Mahim Police Station was handling the investigation from 04. 03. 1999, then Pl Bharat Tambe (PW- 59) took over investigation on 06. 03. 1999 and thereafter, ACP Pradeep Sawant (PW-61) took charge of the investigation from Police Inspector Bharat Tambe on 26. 03. 1999. On going through all the material available on record the High Court came to the categorical finding that the aforesaid confessional statement was made voluntarily and while recording the same post confessional formalities were followed.

It was held by the High Court that although the confessional statement does not ~ bear any certificate in the identical terms as specified under Rule 3(6) of the MCOC Rules, 1999, it nevertheless complies with the requirements of Section 18. Apart from that, there is also evidence on record indicating that Accused No. 1 made several phone calls to gang leaders in Pakistan from various phone booths. The said fact is also accepted by the trial court as well as by the High Court. We find no plausible reason as to why this Court should take a different view than what is taken by the trial court and the High Court on proper appreciation of ~ the evidence on record. 53. The confessional statement of Accused No. 8 was held to be admissible by both the courts below in which he nad categorically stated that he knew Accused No. 1 from childhood and that Accused No. 1 had brought him to act as a driver in the said shootout and also paid him Rs. 10,000/- for the job. ~ Accused No.

8 in his confessional statement had also stated • that Accused No. 5 visited Accused No. 1. 54. The confessional statements of Accused Nos. 5 and 6 are also relevant to prove and establish the involvement of Accused No. 1 with the incident. In the said confessional statement, Accused No. 5 had stated that on 02. 03. 1999, Faheem informed Accused No. 5 on the phone that he would be sending two pistols with Accused No. 1. In fact, Accused No. 1 came to the house of Accused No. 5 to deliver the said pistols. It has also come out in the said confessional statement that out of the two pistols one was not in order and so the same was returned to Accused No. 1 and that on 05. 03. 1999 Accused No. 5 called Accused No. 1 who informed him that he (Accused No. 1) has spoken to Chhota Shakeel over the phone and informed him about the incident on the previous day. Accused No. 5 has also stated in his confessional statement that Accused No. 1 informed him that Chhota Shakeel had asked Accused No.

1 to pay Accused No. 5 some money. Thereupon, Accused No. 1 paid Rs. 20,000/- to Accused No. 5 at Vakola and Accused Nos. 5 and 6 together informed -t· ... Accused No. 1 that they were going to Kolkata. 55. Besides aforesaid evidence on record there is also evidence of other witnesses namely PW-21, owner of an STD booth which was functioning under the name and style of J. J. Brothers Communication Centre. He stated in his statement that on 01. 03. 1999, Accused No. 1 made a phone call to specific number in Karachi (Pakistan). PW-35, who is the owner ~ ~ of phone booth named Data Link, stated that he personally knew Accused No. 1. He deposed that Accused No. 1 would come to his booth regularly to make phone calls to Pakistan. PW-37, who was another witness . and the owner of Azari Communication Action Centre, stated in his evidence that Accused No. 1 had made calls on specified numbers in Pakistan on 01. 03. 1999 and 09. 03. 1999.

This evidence of PW- 37 is also found to be corroborated by the evidence of PW- ~ i 54. Similar is the evidence of PW-43 who deposed that calls were made by Accused No. 1 to Pakistan. 56. The High Court disbelieved the aforesaid confessional statements of Accused Nos. 5 and 6 on the ground that the said confessional statements were inadmissible in evidence thereby ~- it reversed the findings of the trial court. The High Court came to the aforesaid conclusion on the basis that there is no evidence to show that any preliminary warning was given prior to the recording of the confessional statement and that in absence of proof of the fact that a warning was given prior to the recording of the confessional statement, the same was inadmissible in evidence. 57. In our considered opinion the High Court ignored the fact that there is evidence of PW-64, the typist who had deposed that the preliminaf'Y warning was in fact given which was so recorded on 23. 07. 1999.

Considering the facts and circumstances of the case we find no reason not to accept the said statement of PW-64, the typist. We also hold that the aforesaid confessional statement of the co-accused could be the basis of conviction under the provisions of MCOCA. "' 58. We, therefore, hold Accused No. 1 guilty of all the charges which were already found to be proved and established by the trial court and affirmed by the High Court. So far the sentence is concerned we, however, uphold and confirm the sentence passed by the High Court and also restore the punishment awarded by the trial court under Section 212 read with Section 52(A) read with Section 120-B IPC. ,.. • 59. So far as conviction under MCOCA is concerned, it is quite clear that conviction could be based solely on the basis of the confessional statement itself and such conviction is. also permissible on the basis of the confessional statement of the co-accused which could be used and relied upon for the purpose of conviction.

In the case of State v. Na/ini, (1999) 5 SCC 253, it was held by this Court in the context of Section ~ 15 of the Terrorist and Disruptive Activities (Prevention) Act, ' 1987 (now repealed), which is pari materia with Section 18 of the MCOCA that the evidence of a co-accused is admissible as a piece of substantive evidence and in view of the non obstante clause, the CrPC will not apply. The Court observed as follows in the relevant paras: "415. When Section 15 TADA says that confession of an accused is admissible against a co-accused as well, it would be substantive evidence against the co-accused. It is a different matter as to what value is to be attached to the confession with regard to the co. accused as that would fall in the realm of appreciation of evidence. 416. The term "admissible" under Section 15 has to be given a meaning.

When it says that confession is admissible against a co-accused it can only mean that it • is substantive evidence against him as well as against the maker of the confession. 417. Mr Natarajan said that the confession may be substantive evidence against the accused who made it but not against his co-accused. He reasoned that the confession was not that of the co-accused and it was not the evidence; it is the confessor who owned his guilt and not the co-accused; it is not evidence under Section 3 of the Evidence Act; it is not tested by cross-examination; and lastly, after all it is the statement of an accomplice. According to him it can have only corroborative value and that is a well-established principle of the evidence even though Section 3 and Section 30 of the Evidence Act be ignored. But then Section 15 TADA starts with non obstante clause. It says that neither the Evidence Act nor the Code of Criminal Procedure will apply. This is certainly a departure from the ordinary law.

But then it was also the submission of Mr Natarajan that the bar which is removed under Section 15 is qua Sections 24, 25 and 26 of the Evidence Act and not that all the provisions of the Evidence Act have been barred from its application. He, therefore, said that the view taken by this Court in Kalpnath Rai case? that Section 30 of the Evidence Act was in any case applicable, was correct. We think, however, that the Vi€1W expressed in that case needs reconsideration. . 418. If we analyse Section 15, the words which have been added by the amending Act, 1993 have to be given proper meaning and if we accept the argument of Mr Natarajan these words will be superfluous which would be against the elementary principles of interpretation of statute. For the confession of an accused to be admissible against co-accused, proviso to Section 15 says that they should be tried together. That is also Section 30 of the Evidence Act.

Clauses (c) and (d) of Section 21 wen~ deleted which raised a presumption of guilt against the co-accused. According to Mr Natarajan, that provision made the 2 ' confession of a co-accused a substantive evidence and ''. :;'Parliament did not think it proper that it should be so. But .. ,'"l:Hetiwhy ada the"words in Section 15? , '. ~~. :J'. ;p 811} ~;-:.. , Gf:'. :· =··! :;:.. · .. ~' 1, 419. "Admissible" according to Black's Law Dictionary .. ~,... means: "Pertinent and proper to be considered in reaching a decision. Used with reference to the issues to be decided in any judicial proceeding. " 420. It defines "admissible evidence" as: "As applied to evidence, the term means that the evidence ~ introduced is of such a character that the court or judge is bound to receive it; that is, allow it to be introduced at trial. To be 'admissible' evidence must be relevant, and, inter alia; to be 'relevant' it must tend to establish material proposition....

" If we again refer to Black's Law Dictionary "substantive evidence" means: ~ • "That adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i. e. showing that he is unworthy of belief), or of corroborating his testimony. " 421. TADA was enacted to meet extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Law has to respond to the reality of the situation. What is admissible is the evidence. Confession fof the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative. When the legislature enacts that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30.

By judicial interpretation or judicial rigmarole, as we may put it, the court cannot again bring into operation Section 30 of the Evidence Act and any such attempt would not appear to be quite warranted. Reference was made to a few decisions on the question r of interpretation of Sections 3 and 30 of the Evidence Act, ~ foremost being that of the Privy Council in Bhuboni Sahu v. R. 8 and though we note this decision, it would not be applicable because of the view which we have taken on the exclusion of Section 30 of the Evidence Act. In Bhuboni Sahu case8 the Board opined as under: "Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his "' confession against others as well as himself. But confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within. the definition of 'evidence' contained in Section 3, Evidence Act.

It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. _,_ It is a much weaker type of evidence than the evidence of t an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence. aAG-cannot -be made the foundation of a conviction, is correct. " 422. In Kashmira Singh v. State of M. P.

9 one of the -"· questions was how far and in what way the confession of an accused person can be used against a co-accused. The Court relied on the observations made by the Privy Council in Bhuboni Sahu case8 and said that testimoAy of an accomplice can in law be used to corroborate another though it ought not to be used save in exceptional "'" --r circumstances and for reasons disclosed. 423. In Haricharan Kurmi v. State of Bihar1 Othis Court again relied on its earlier decision in Kashmira Singh case9 and on the decision of the Privy Council in Bhuboni Sahu case8. It said that technically construed, definition of evidence as contained in Section 3 of the Evidence Act will not apply to confession.

Even so, Section 30 provides ~ that a confession may be taken into consideration not only a~ainst its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which is produced before the court, it »- ; is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the court, it is the duty of the court to consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the court. But a court cannot say in respect of such evidence that it will just not take that evidence into account.

Such an approach can, however, be adopted by the court in dealing with a confession, because Section 30 merely enables the court to take the confession into account. 424. In view of the above discussions, we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA confession of an accused is admissible against a coaccused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to .... , ·r be used ·against a co-accused though that will again be within the sphere of appraisal of evidence. " 60. Reiterating the aforesaid position of law, this Court in Devender Pal Singh v.

State of NCT of Delhi, (2002) 5 SCC 234, at page 261 observed as follows: "33. As was noted in Gurdeep Singh case2 whenever an accused challenges that his confessional statement is not ·- \. · voluntary, the initial burden is on the prosecution for it has to prove that all requirements under Section 15 of TADA and Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (hereinafter referred to as "the Rules") have been complied with. Once this is done the prosecution discharges its burden and then it is for the accused to show and satisfy the court that the .... t confessional statement was not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused himself.

It has to be noted that in Nalini case7 by majority it was held that as a matter of prudence the court may· look for some corroboration if confession is to be used against a coaccused though that will be again within the sphere of appraisal of evidence. It is relevant to note that in Nalini case7 the Court was considering the permissibility of conviction of a co-accused on the confessional statement made by another accused. In this case, we are concerned with the question as to whether th