93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 006

Admissibility of Confessions recorded u/s 15 of TADA prior to the amendment

97) Learned senior counsel for A-1 submitted that as the amendment of Section 15 of TADA under which the said confessional statements were purported to have been recorded was brought into effect from 22.05.1993, the said confessional statements could not be used to adjudge the appellant guilty inasmuch as all the said confessional statements were recorded prior to the date of amendment. He further stated that the said confessional statements were obtained pursuant to prolonged police custody of the said accused persons, therefore, the same cannot be said to be obtained voluntarily and further cannot be said to be free from taint and were wholly unreliable. Learned senior counsel has finally submitted that as the said confessional statements were recorded prior to the date of amendment of Section 15 of TADA, the same have to be tested against the touchstone of Section 30 of the Indian Evidence Act under the general law.

98) The prosecution heavily relied on the confessional statements of co- accused persons, namely, Asgar Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Altaf Ali Mustaq Ali Sayed (A-67) and Mulchand Sampatraj Shah @ Choksi (A-97). It was submitted by senior counsel for A-1 that all the said statements were recorded prior to the date of amendment of TADA Act on 22.05.1993. Till the said amendment, the statement of an accused person was admissible only against him. However, the amended Section 15 of TADA made the statement of an accused person admissible in evidence against a co-accused, an abettor and a conspirator. It was submitted by learned senior counsel that as the recording of statement of A-10 was completed on 20.04.1993, A-11 on 18.04.1993, A-46 on 23.04.1993, A-67 on 19.04.1993 and A-97 on 19.05.1993 i.e., before the date on which the said Section 15 of TADA was amended and in the absence of express intention making the said amendment retrospective, the same will have to be taken as prospective, as a result whereof, the said statements cannot be used against the appellant and cannot be the basis of adjudging him guilty. It was submitted by learned senior counsel that law is well settled that an amendment which is procedural in nature may be applied retrospectively but an amendment which not only changes the procedure but also creates new rights and liabilities has to be construed to be prospective in nature unless otherwise provided either expressly or by necessary implication. It was further submitted by learned senior counsel that a procedural amendment that imposes new duties or creates new disabilities or obligations in respect of transactions already accomplished cannot be said to be retrospective in nature. It was urged by learned senior counsel that as the said confessional statements were recorded prior to the amendment of TADA, i.e., on 22.05.1993 and the said amendment cannot be said to be retrospective in nature, it does not necessarily mean that the same will have to be totally discarded rather they will have to be appreciated in the light of Section 30 of the Evidence Act and can be used to lend assurance to independent materials collected by the investigating agency but cannot be made the sole basis of adjudging the appellant guilty as has purportedly been done in the instant case.

99) With regard to the same, reliance was placed on the decision of this Court in State of Rajasthan vs. Ajit Singh (2008) 1 SCC 601, which held as under in paras 15 and 16.

“15. It has accordingly been emphasised that the statement made by the accused could be used one against the other. Mr Sodhi has however pointed out that the decision in Jameel Ahmed case had been rendered without noticing that the words in Section 15(1) of the Act (which have been underlined above) that is “or co-accused, abettor or conspirator” had been inserted in the Act in 1993 and as such could not be retrospectively applied to an incident of 12-8-1991. He has also referred us to State (NCT of Delhi) v. Navjot Sandhu to submit that this issue had been specifically raised and while noticing the addition made in 1993 it had been observed that a confessional statement recorded under Section 15 would be sufficient to base a conviction on the maker of the confession but on the other proposition whether such a confession could be used against a co-accused was another matter.

16. It is, therefore, clear that the Division Bench in Navjot Sandhu case clearly repelled the contention raised by the State counsel that a confession made by an accused could be used as against a co- accused…..”

100) Reliance was also placed on the decision of this Court in Ganesh Gogoi vs. State of Assam (2009) 7 SCC 404. Paragraph Nos. 21 and 24 are relevant which read as under:

“21. It appears that in the instant case the charge which was framed by the court against the appellant was under Section 3(5) of the said Act. But such a charge could not have been framed against him by the court inasmuch as on the alleged date of occurrence i.e. in September 1991, Section 3(5) of TADA was not brought on the statute. The framing of the charge was thus inherently defective…..

24…..It is clear from the perusal of Section 3 and its interpretation in Hitendra Vishnu Thakur that the requisite intention is the sine qua non of terrorist activity. That intention is totally missing in this case. It is not there in the charge and it has also not come in the evidence. Therefore, both the framing of charges against the appellant under Section 3(5) and his conviction under Section 3(2)(i) of the said Act are totally bad in law.”

101) In State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600, this Court held as under:

“49…..It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of the co-accused as well. The omission of the words in POTA “or co-accused, abettor or conspirator” following the expression “in the trial of such person” which are the words contained in Section 15(1) of TADA does not make material difference, according to him. It is his submission that the words “co-accused”, etc. were included by the 1993 Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co-accused. According to the learned Senior Counsel, the phrase “shall be admissible in the trial of such person” does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned Senior Counsel highlights the crucial words “in the trial of such person” and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of CrPC and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression “the trial of such person” may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words?

The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan Singh v. Jitendra, SCC at p. 86, which were cited with approval in Kartar Singh case]. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words “co-accused”, etc. These specific words consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover the confessions of the co-accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession of the co-accused under the ordinary law of evidence, should be allowed to have its sway, taking a cue from the observations in Kartar Singh case at para 255. The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that was obtained under TADA. We cannot countenance the contention that the words “co-accused”, etc. were added in Section 15(1) of TADA, ex majore cautela.”

102) In Harjit Singh vs. State of Punjab (2011) 4 SCC 441, at para 14, it was held:

“14…..However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing the sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. Thus, its application would be violative of restrictions imposed by Article 20 of the Constitution of India….. “ Learned senior counsel also placed reliance on the following decisions, viz.,: Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi I (2007) 9 SCC 665, Sanjay Dutt vs. State through CBI, Bombay (1994) 5 SCC 410, Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602, Fairey vs. Southampton County Council (1956) 2 ALL ER 843, The Colonial Sugar Refining Co. Ltd. vs. Irving 1905 AC 369, In Re: Athlumney (1898) QB 547.

103) The issue of admissibility of confessions recorded under Section 15 of TADA prior to the amendment on 22.05.1993 has been dealt with in detail by the Designated Judge in paras 1-8 of Part 3 of the final judgment. The issue of admissibility against the co-accused of the confessions recorded prior to the amendment in Section 15 of TADA was considered by this Court in Nalini (supra) wherein this Court concluded that confessions recorded under Section 15 of TADA are substantive evidence and are accordingly admissible not only against the maker but also against the co-accused charged and tried in the same case together with the accused. It was further held:

’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.” It was further observed:

“429. ….Confession of 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.”

104) We are in entire agreement with the same. Accordingly, we hold that the confession of the co-accused, namely, A-10, A-11, A-46, A-67 and A-97 are admissible as primary and substantive evidence against the appellant (A-1) notwithstanding the amendment by Act 43 of 1993.

105) To sum up, it can easily be inferred that the position of law on the evidentiary value of confession is as under:-

(i) If the confessional statement is properly recorded satisfying the mandatory provision of Section 15 of TADA and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not, is a matter for the court to consider on the basis of the facts of each case.

(iii) With regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on the facts of each case whether such direct transmission of the confessional statement creates any doubt as to the genuineness of the said confessional statement. Since we have elaborately discussed the contention raised by learned senior counsel relating to the admissibility or otherwise of the confessional statements, there is no need to refer to the same in subsequent appeals before us.

106) In light of the above principles, let us discuss the confessions made by the co-accused persons.

i) Confessional statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 (Exh. Nos. 858 and 858A) was recorded by Mr. K.L. Bishnoi (PW-193), the then DCP which referred to A-1 as under:

1) “A-1 is the younger brother of Tiger Memon.

2) When A-10 had telephoned at Tiger’s residence, Yakub Memon (A-1) attended the call and asked him to come and meet him. On 10/11th February, at his residence, A-1 handed over 3 tickets for Dubai and 3 passports to A-10 asking him to pick up Parvez Qureshi (A-

100), Farooq (A-16) and Salim from Midland Hotel, handover the said tickets and passports to them and drop at the airport by taxi which was duly performed by the confessing accused. The next day Tiger asked him to come and meet him. When he went to see Tiger, he was ready to go to Airport. At the airport, Tiger told him that he should stay in touch with A-1 and in case of requirement of money he should get the money from Choksi and give it to him.

3) On 13th February, he directed the confessing accused to collect Rs. 1 crore from Choksi for him which was done by the confessing accused with the help of co-accused Gani (A-11), Parvez (A-12), Mohd. Hussain, Salim and Anwar (AA).

4) On 17-18th February, Yakub Memon directed the accused to remain with Rafiq Madi (A-46). Next day the accused and Rafiq Madi picked up Irfan Chougule (Absconding) from Mahim and Shahnawaz and his companion from Bandra Reclamation and dropped them at the airport.

5) On return to Tiger’s residence, Yakub directed the confessing accused to talk to Tiger on phone (during the telephonic talks Tiger pulled up the deponent accused for having not contacted him on phone).

6) On 9th March, he directed the confessing accused to transfer Rs. 25 lakhs by transferring the same from Tiger’s account to Irani’s account and transfer Rs. 10 lakhs to the Ohalia’s account which was done by the accused by contacting Choksi (A-97) on phone.

7) In the morning, on 10th March, he again asked the confessing accused to transfer Rs. 21 lakhs from Tiger’s account to Irani’s account which was duly got done by the deponent accused by instructing Choksi (A-97) on phone accordingly.”

ii) Confessional Statement of Abdul Gani Ismail Turk (A-11) Confessional statement of A-11 (Exh. Nos. 818 and 818A) was recorded by Mr. P.K. Jain (PW-189) which stated as under:

1) “On 27/28th Jan, A-1 was present at Al-Hussaini building with co- accused Tiger, Anwar, (AA), Rafiq Madi (A-46), Imtiyaz (A-15), Parvez, Rahim (A-52) when the said co-accused left for Mhasla after taking the meals.

2) On 07.03.1993, he was present in Al-Hussaini building with Tiger, Shafi, Essa (A-3), Rahim (A-7) wife of A-1, A.R. Memon (A-5) since deceased, father of A-1 and Hanifa Memon (A-6), mother of A-1, when co-accused Gani visited Al-Hussaini.”

iii) Confessional Statement of Md. Rafiq Moosa Biyariwala (A-46) Confessional statement of A-46 (Exh. Nos. 867 and 867A) was recorded by Mr. K.L. Bishnoi (PW-193) which referred the appellant as follows:

1) “A-1 is the younger brother of Tiger Memon.

2) He used to drive Tiger’s blue Maruti-800 for attending business activities.

3) On 8/9th February, he handed over Rs. 50,000/- to the Rafiq (A-46) which were made over to Altaf Passportwala by the latter.

4) On 10/11th February, he got the VIP suitcases taken out of the jeep in his garage through Anwar and he took the same to his house upstairs.

5) On 13th February, he got the jeep after repairs brought to Meharbux’s residence through the accused and Anwar.

6) Between 14/15th February, he got the brown coloured round objects from the secret cavities of the jeep filled into three VIP suitcases which he got transported away from his garage by red Maruti Van by Altaf (A-67).

7) Next day, he handed over Rs. 62,000/- or 63,000/- to the accused to be given to Altaf.

8) On 17th February, he handed over 5 passports and tickets to Anwar for Yeda Yakub and others for their departure to Dubai.

9) Next day, on his directions, the accused dropped Irfan Chougule, Asgar and Shahnawaz at Airport for their departure to Dubai.

10) On 14th, he was given Rs. 4 lakhs by the accused after collecting the said amount from Choksi (A-97).”

iv) Confessional Statement of Altaf Ali Mustaq Ali Sayeed (A-67) Confessional statement of A-67 (Exh. Nos. 819 and 819A) was recorded which referred the appellant as under:

1) “In the presence of Yakub Memon, Amjad (A-68) told Altaf that the goods belonging to Yakub are to be shifted to some other places as these got burnt in the riots.

2) Yakub Memon asked accused Altaf Ali about whether the bags had been delivered to him by Amjad.

3) Yakub Memon arranged for tickets for some co-accused through accused Altaf Ali by sending money and passport through accused Rafiq Madi.

4) Yakub Memon sent 3 bags through Rafiq Madi to accused Altaf Ali for safe keeping. The bags contained arms/ammunition.

5) Yakub instructed Altaf Ali over phone for sending the bags to Al- Hussaini Building i.e., residence of Yakub Memon and his family members.

6) Earlier, Yakub Memon had asked Altaf Ali to keep the bags since he was giving so much business. When Altaf Ali told Yakub that he may be implicated, Yakub replied that he need not worry.”

v) Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97) In his confessional statement, he narrated the role of A-1 as follows:

“It was emerged that Tiger Memon had a hawala account with him and in the said account, which was opened in November, 1992, a sum of Rs.

1,89,78,000/- was deposited by A-26 Raju Laxmichand Jain @ Raju Kodi from November, 1992 to December, 1992. A-26, in his confessional statement, admitted having deposited the said amount in the account of Tiger Memon with A-97. A-10 Asgar Yusuf Mukadam has also stated in his confession about handling some transaction from the said account.”

107) In pursuance of the said disclosure, PW-513, in the presence of Pandharinath Ganpat Hanse (PW-70) recovered two chits i.e., Article Nos. 247 and 247-A from a diary in a pouch (Art. 248) vide panchnama Exh. No. 373 which was found in the cupboard of Room No. 604, 6th Floor, Rajender Vihar, Guilder Lane, Grant Road, Bombay. The writings mentioned on the said two chits corroborate the figures given by A-97 in his confessional statement. The amounts deposited/withdrawn on the said two chits if seen in light of confessional statements of co-accused, i.e., A-10, A-26 and A-46 were the amounts deposited/withdrawn by accused Tiger Memon through his men on various dates.

108) A perusal of the above recitals in the form of confessional statements clearly establish the fact that Tiger had an account with A-97 in which various amounts totaling to Rs. 161.48 lakhs were deposited by A- 26 at the behest of Tiger Memon (AA) and which was also being controlled by A-1.

109) On 12.02.1993, at the time of departure to Dubai, Tiger Memon told A- 10 that he should remain in touch with A-1 and in case of need of money to A-1, arrange the same from A-97. Tiger Memon further asked him to bring Rs. 5 lakhs from A-97 and to pay the same to Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) on account of landing charges. Accordingly, A-10 alongwith Parvez Nazir Ahmed Shaikh (A-12) brought the money from A-97 and paid it to A-17 at his residence. From the above, it can safely be inferred that the account maintained with A-97 by Tiger Memon was being used for meeting the expenses incurred for achieving the objects of criminal conspiracy and A-1 was handling it through other co-conspirators. Confessional statements of A-10, A-11 and A-46 clearly reveal that the relevant role of collecting money was played by A-10 at the behest of A-1. In the said context, the material contained in the confession of A-10 that Tiger Memon while leaving for Dubai had told him to remain in touch with A-1 and having further said that in the event of A-1 requiring any money then he should collect the same from A-97 clearly reveals that A-1 himself having not collected the money from A-97 but he was handling it through other conspirators. The said matter is further clear from the confession of A-10 which reveals that when A-1 told him to bring an amount of Rs. 1 crore from A-97, the manner in which the said amount was brought by A-10 by going to the house of A-97 along with A-11, A-12 and two more persons. The further materials in the confession of A-10 regarding the transaction of Rs. 25 lakhs and Rs. 10 lakhs effected on 09.03.1993 clearly reveals that the account of Tiger Memon was operated by A-1 through A-10. The same is also clear after considering the manner in which the transaction had taken place on 10.03.1993 by A-1.

110) It has come in the confessional statement of A-67 that A-1 had asked him to book air-tickets for Dubai, and he agreed to do the same. It has also come in the confession of A-67 that he had booked around 10-12 tickets for Dubai at the instance of A-1 and A-46 used to bring the money for the same. From the above, it is evident that A-67 agreed to book the tickets for Dubai at the instance of A-1 and for which A-46 used to bring the cash. Further, from a perusal of the confessional statement of A-46, it is clear that on 8/9th February, A-1 gave him Rs. 50,000/- for giving it to A-67 and he accordingly delivered the same to him. It has also come in the confession of A-46 that on 14/15 February, he, alongwith A-10 brought Rs. 4 lakhs from A-97 and gave the same to A-1. On 14/15 February, he was given Rs. 62-63 thousand by A-1 to be delivered to A-67 which he, accordingly, delivered.

111) From the above recital of the confessional statement of A-46, it is evidently clear that out of Rs. 4 lakhs i.e., the amount which was brought by A-46 and A-10 from A-97 at the instance of A-1, Rs. 62-63 thousand were given to A-67 by A-46. It is also clear from the confession of A-67 that it was A-46 who used to bring the cash for the tickets he was booking for A- 1 for Dubai. Asif Sultan Devji (PW-341) and Massey Fernandes (PW-311) have deposed about the booking of 12 tickets and 1 ticket respectively at the instance of A-67. A-67, in his 313 statement had admitted having booked the tickets for Dubai through the said witnesses.

112) Md. Usman Ahmed Jan Khan (PW-2), the approver, (about acceptability or reliability, we shall consider it in a separate heading) categorically stated that A-1, at the instance of Tiger Memon, handed over air-tickets to Javed which were of Parvez Mohmmed Parvez Zulfikar Qureshi (A-100), Salim Rahim Shaikh (A-52), Md. Farooq Md. Yusuf Pawale (A-16), Zakir Hussain Noor Mohammed Shaikh (A-32), Salim Mujahid besides PW-2. It has also come in the confession of A-10 that on 09.03.1993, at the instance of A-1, A-10 got transferred Rs. 25 lakhs from Tiger’s account with A-97 to Irani’s account and Rs. 10 lakhs to Ohalia’s account. Even on 10.03.1993, Rs. 21 lakhs were transferred to the account of Irani from Tiger’s account at the instance of A-1 by A-10.

113) The timing of these transfers, if seen in the context of activities being carried out contemporaneously, was transferred for meeting the expenses for achieving the objects of conspiracy, to meet the expenses incurred for ticketing of the co-conspirators and also to meet the expenses to be incurred during that period. As far as Tejarath International is concerned, it has come in the evidence of S.P. Udyawar (PW-441) that at the instance of A-1, in January/March, 1993, he booked tickets for Dubai for the following persons, viz., Dawood @ Dawood Taklya Md. Phanse @ Phanasmiyan (A-14) Abdul Razak Memon (A-5), Hanifa Abdul Razak Memon (A-6), Yakub Abdul Razak Memon (A-1), Rahin Yakub Memon (A-7), Essa @ Anjum Abdul Razak Memon (A-3), Yusuf Abdul Razak Memon (A-4) and Tiger Memon (AA) vide Exh. 1421. PW-441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. Besides this, Exh. 1192 shows booking of tickets for A-49, A-98, A-94, A-39 and A-14. Exh. 1192 is a statement of Tejarath International maintained by the firm of PW-441. The confessional statement of A-67 to the effect that in the second week of February, A-1 asked him to book tickets for Dubai, which he agreed to and he also admitted having booked 15-16 tickets for A-1 to Dubai in February 1993 and received money from A-46 for the same in the second week of February 1993 itself, the time when the co-accused went to Dubai and then for training to Pakistan. The confessional statement of A- 46 also shows payment of a sum of Rs. 50,000/- on 8/9th February and Rs. 62- 63,000/- on 14/15th February by A-1 to be given to A-67. The admission of A-67 in 313 statement is also evident from the booking of tickets to Dubai through PW-341, who was running a travel agency by the name of M/s ABC Travels and Massey Fernandes (PW-311) was working with M/s Hans Air Services Pvt. Ltd. PW-341 deposed about booking 12 tickets for A-67 and the bills which were marked as under:

“Exh. 1246 – For booking Dubai on 11th February, 1993 for A-100, A-32, Javed Chikna and Mohd. Tainur Phansopkar.

Exh. 1247 for 12th February, 1993, for Javed Dawood Tailor Exh. 1248 Emirates Flight for 17th February, for Yeda Yakub, Anwar Theba, Bashir Ahmed Khan, Nasir Dhakla (A-64), Gul Mohammed (A-77) and Abdul Ahmed.

Exh. 1243 on 11.02.1993 Shahnawaz Abdul Kadar Qureshi (A-29) and Irfan Chougule.”

114) A-10, in his confession has stated that on 10/11 February, A-1 gave three tickets and 3 passports and asked him to drop A-100 and A-16 to the Airport. It is pertinent to note here that Exh. 1246 shows the booking of A-100 for Dubai on 11.02.1993. The said booking was done at the behest of A-67 who did it at the instance of A-1. A-46, in his confession stated that Javed Chickna (AA) accompanied Tiger to Dubai on 12.02.1993. Exh. 1247 shows the booking of Javed Dawood Tailor to Dubai for 12.02.1993 by Emirates. Immigration Officer (PW-205) stated that Javed Dawood Tailor left India by Emirates on 12.02.1993. Further, in the confessional statement of A-46 it has come that on 17.02.1993, A-1 called Anwar Theba (AA) and handed over 5 passports and 5 tickets. Anwar asked A-46 to drop him and others at the Airport for going to Dubai. Accordingly, he dropped Bashir, Gul Mohammed (A-77), Anwar Theba and Yeda Yakub. He also saw A-64 at the Airport and all five of them left for Dubai. Exh. 1248 shows the booking of these persons for Dubai on 17.02.1993 by Emirates. Thus, this booking was done by A-67 at the instance of A-1. Immigration Officer (PW-

221) stated that the above mentioned persons left by Emirates Airlines. It has come in the confession of A-46 that A-1 had given him 3 passports and 3 tickets for dropping 3 persons at the Airport. Accordingly, A-46 and A-10 dropped A-29, Irfan Chougule and one more person at the Airport. Confessional statements of A-36 and A-29 show that he was the person who traveled with them. A-10 in his confession corroborates with A-46. Exh. 1243 shows the booking of A-29 and Irfan Chougule by Air India for going to Dubai. PW-197 stated that Irfan Chougule left by Air India on 18.02.1993. Passport of A-29 (Exh. 1731) shows his departure on 18.02.1993. From the above, it is clear that the tickets booked by A-67 at the behest of A-1 were for the co-accused persons mentioned above, who first went to Dubai and, subsequently, to Pakistan for weapons training as revealed in their confessional statements and evidence of PW-2. The above confessional statements by the co-accused/conspirators would show that A-1 was playing a key role in furtherance of the above said conspiracy.

115) The funds of Tejarath International were also used for achieving the object of criminal conspiracy. It has come in the evidence of PW-441 that at the instance of A-1, he booked tickets for Dubai in January/March, 1993 as under:

“Exh. – 1421 A-14 18th January, 1993 (Dawood Phanse) Exh. – 1422 A-5, A-6, A-4 Exh. – 1423 A-7, A-3, A-1 March 1993 Exh. – 1424 Tiger Memon” PW-441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. Besides this, Exh. 1192 shows booking of tickets for A-49, A-98, A-94, A-39 and A-

14 which is a statement of Tejarath International maintained by the firm of PW-441. From the evidence of PW-441, it is clear that A-1 was managing the affairs of Tejarath International and had booked tickets on its account with the firm of PW-441. In light of the evidence of PW-441 about the reservation card of the firm and booking of tickets by A-1 in the account of Tejarath International coupled with the confession of the co-accused, viz., A-14, A-94, A-49 and A-39 regarding their visits to Dubai during the relevant time, it is clear that A-1 had booked air tickets for the co- conspirators.

116) Vijayanti B. Dembla (PW-313) from East West Travels had deposed that he had been introduced by Samir Hingora (A-53) to Tiger Memon and was organizing tickets for Tiger since March 1992. He named Nitin K. More (PW-

310), who used to collect tickets on behalf of Tiger Memon. The prosecution has examined PW-310 and shows that it was A-1 who was booking tickets and would send his employee to collect the same from East West Travels. He is a convincing witness for the fact that A-1’s firm office was burnt in the riots and that he had started working from his residence at Al Hussaini Building. It is relevant to mention that practically there was no cross examination of the witness.

117) It has come in evidence (confessional statements of A-67 and A-46) that 4 suitcases were kept in the jeep which was parked in the residential premises of Amhjad Ali Meharbax (A-68-since discharged) by A-11 and Anwar Theba (AA) at the instance of A-1. Subsequently, A-67 took away the suitcases and kept them in his office at the instance of A-1. Later, A-46 brought three more suitcases and kept them at the office of A-67. Out of the total seven suitcases, A-67 delievered 5 suitcases to A-1 at Al- Hussaini Building. Thus, two suitcases remained in his possession. It has further been disclosed by A-67 that due to the involvement of A-1 in the matter, he kept the said suitcases at the residence of Mohammed Hanif (PW-282).

118) After the arrest of A-67, he made a disclosure under Section 27 of the Evidence Act and led the Police and Pancha (PW-37) to the residence of Mohammed Hanif from where the following articles were recovered and taken into possession vide Panchnama Exh. 109:

a) One suitcase (Article 42) was found containing 65 handgrenades and 100 electronic detonators.

b) One VIP suitcase (Article 43) was found containing 40 hand grenades and 50 electronic detonators. During the examination of Akbar Khan Abu Sama Khan (dead) (PW-37) in the Court only 85 handgrenades were found in the two suitcases which were marked as Article 44 to 84 and one hand grenade which was sent to the FSL was marked as Article 45.

c) The incharge of the store room of CID, Crime Branch, P.I. Pargunde has submitted the details of disposal in respect of remaining 20 defused hand grenades to the Court. The recovered articles were forwarded to the FSL and its report (Exh. 2439) proves the nature of article recovered.

d) Out of 150 electronic detonators, one is marked Article 46 (one) to (three) and the remaining 149 were forwarded to the Bomb Detection and Disposal Squad (BDDS) for defusal.

119) It is clear from the confession of A-67 that 4 bags were given to him at the first occasion which were containing ammunitions etc., by discharged accused Amjad Ali Meharbax at the instance of A-1. On the second occasion, A-46 had delivered 3 more suitcases to A-67 and on being asked, A-46 stated that the suitcases were containing round bombs etc. Thus, A-67, in all had received 7 bags from A-1 which contained arms/ammunitions etc. A-67, thereafter, returned 5 bags to A-1 that included 4 bags which were received on the first occasion and one of the three bags received on the second occasion. Thus in all, there remained two bags with A-67 which were recovered by PW-506. These facts were stated by A-67 in his confessional statement which has since been exhibited and read in evidence as substantive evidence. Moreover, the confessional statement of A-67 corroborated the evidence of PW-37, PW-506 and PW-282. A- 46, in his confessional statement, also stated about the delivery of 3 suitcases to A-67 by A-1, but there is a small discrepancy about the manner of receipt of 3 suitcases by A-67 wherein he stated that A-46 had delivered 3 suitcases to A-67. The manner of delivery of 3 suitcases is not of much importance, as it has clearly come in the confession of A-67 in respect of delivery of bags at the instance of A-1 and the subsequent recovery of two suitcases at the instance of A-67 which contained 105 hand grenades and 150 electronic detonators.

120) In the confessional statement of A-46, it was mentioned that on 13.02.1993 he alongwith Anwar Theba (AA) went to the residence of Amjad Ali Meharbax (since discharged). Accordingly, both of them brought the said jeep to the Al-Hussaini Building and Anwar Theba went up and handed over the key of the jeep to A-1. On 14/15.02.1993, when A-46 was present at Al- Hussaini Building alongwith Anwar Theba (AA), A-1 called Anwar upstairs and after sometime Anwar came down alongwith three suitcases. He also brought the key of a jeep kept inside the garage and Anwar Theba asked A-46 to unscrew the bolts of the floor of the jeep. A-46 accordingly unscrewed the bolts of the floor and when he was about to lift the floor, he was asked by A-1 to go to the office of A-67. He immediately went to the office of A-67 and when he found that A-67 was not there, he informed A-1 accordingly. At that time, A-46 saw that Anwar Theba was filling something in the said suitcases which was of light green colour and round in shape. At that time, A-1 asked A-46 to stand outside the garage and watch the movements of the people. He was apparently sent outside by A-1 so that he could not see the contents which were being filled in the suitcases. He was again sent by A-1 to see whether A-67 was available. Accordingly, he went to the office of A-67 and as A-67 was not present, he came back to Al- Hussaini. At that time, he saw A-67 keeping the said suitcases in his Maruti Van. In the light of the evidence on record, it is clear that A-1 was in possession of handgrenades and electronic detonators which were concealed in the jeep and which were delivered to A-67 in three suitcases by A-1 through A-46.

121) PW-87, who was the driver working for Abdul Razak Suleman Memon (A-5), has deposed that A-5 was having four vechicles, namely, red Maruti Van, blue Maruti Car, white coloured Maruti Car and one red coloured Maruti 1000. He also stated that A-5 was staying at 5/6th floor of Al-Hussaini Building alongwith his wife, daughter-in-laws and sons, namely, Essa @ Anjum Abdul Razak Memon (Anjumbhai) (A-3), Yusufbhai (A-4) and Ayubbhai (AA). He also stated about taking his blue coloured Maruti car to a service station opposite to Paradise Talkies on 2-3 occasions. He also identified his signatures (Exh. Nos. 444 and 445) on the bills (Exh. Nos. 444A and 445A) respectively. These signatures were affected by him at the time of taking the car for servicing. The said witness did not fully support the prosecution and was declared hostile.

122) PW-630, who was the Manager of Hind Automobile and Co., deposed that he had issued Exh. Nos. 444A and 445A to the Driver who brought the Maruti Car bearing No. MP-09-H-0672 for servicing on 03.01.1993 and 23.02.1993 respectively. He also stated that he had written the name of the owner of the car and the car number on the said bills on the basis of the information given by the Driver who brought the car for servicing on the said two occasions. It is pertinent to note here that the driver who brought the vehicle for servicing was PW-87 as evident from his signatures on Exh. Nos. 444 and 445. Exh. Nos. 444A and 445A shows that A-1 was mentioned as the owner of Vehicle No. MP-09-H-0672.

123) It has been proved that the said Maruti Car of blue colour was planted at Bombay Stock Exchange which exploded at 03:30 hrs killing 84 persons, injuring 217 persons and causing loss to property worth rupees 5 crores. The number plate (Article 227) bearing No. MP-09-H-0672 was seized from the place of occurrence by Vipul Manubhai Vyas, Deputy Project Manager, Bombay Stock Exchange (PW-86). Engine No. F/8/BIN703676 and Chassis No. 481528 was seized by PW-86 and PW-370 respectively. It is also evident that the Maruti 800 Car bearing No. MP-09-H-0672 was purchased by Shafi Zariwala (AA) in the beginning of 1992 through Suleman Mohammed Lakdawala (PW-365), Shakeel S. Hasan (PW-366), Roopak Madanlal Malik (PW-

628), Atmaram Ramchandra (PW-642), Rajkumar Kamal Chand Jain (PW-649) and this Maruti Car was used to blast the Bombay Stock Exchange Building. Ultimately, this car was used by Tiger Memon and A-1 for explosion. This is evident from the evidence of PWs 87 and 630. It also finds mention in the confessional statement of A-46 that A-1 was using a blue coloured Maruti Car.

124) From the above, the following conduct of the appellant (A-1) alongwith the co-conspirator family members may be relevant:-

a) At the time of blast, they all were living together at Dubai.

b) After the blasts, the Memons’ fled to Pakistan from Dubai.

c) Their conduct of living together after fleeing from Bombay and not providing information about these blasts to the concerned authorities at Indian Embassy prove that the members of the Memon family were also co-conspirators in committing the said bomb blasts. With all the activities going on at the Al-Hussaini Building, on the eve of blasts, the members of Memon family were aware of the activities.

d) They never disclosed the connection of Tiger Memon with the blasts to anybody.

e) In Pakistan, they had obtained Pakistani Passports and National Identity Cards in assumed names.

f) They had acquired properties, started a business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licenses etc. to lead a comfortable life all of which will show that they have chosen a comfortable life in Pakistan after causing blasts in Bombay and were determined not to return to India in their original identity.

g) They failed to appear before the Court inspite of issuing of proclamation and the same being widely published.

h) Instead of surrendering, they traveled to Bangkok and Singapore from Karachi for holidays in assumed names on Pakistani Passports during April, 1993.

i) They had not taken any steps to surrender before the Indian authorities or Thailand Authorities on their arrival to Bangkok and Singapore.

j) Nor they had made any attempt to return to India.

k) Large amount of jewellery and cash was abandoned by the Memons’ at the Al-Hussaini Building when they hurriedly left Bombay just before the blasts.

Further, recovery from the walls/portions of the lift at the Al-Hussaini building of RDX remanants on 22.03.1993 establishes the case of the prosecution of the activities being carried out by the appellant and the co- conspirators at the said place.

125) Apart from the above confessional statements and evidence, nine Indian passports and seven Pakistani passports belonging to the members of Memon’s family including the appellant which were found with A-1 were also seized by H.C. Singh (PW-474), SP-STF, Delhi, CBI from his person at the time of arrest. A series of other documents were also seized from the appellant like a Pakistani Driving Licence, Pakistani Identity Card, Chits having numbers of Karachi residents, Address Book, Pakistani Computer Education Certificate and Pakistani National Tax Number Certificate in favour of Home Land Builders. The evidence of Kanjira Parambil (PW-473), Consulate General of India at Karachi further established that all the Pakistani Passports (13 in number) including the one seized from A-1 are passports issued genuinely by the Pakistan Government. On perusal of the entries in the passports seized from the appellant (A-1), the following facts emerge:

a) Indian Passport No. M-307804 in respect of A-1 establishes that A-1 left Dubai on 17.03.1993 and there is no arrival stamp of any country available on the said passport.

b) Pakistani Passport No. AA-763242 in respect of Yusuf Ahmed Mohammed shows that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. Again, the said passport holder left Bangkok on 29.04.1993. The passport holder left Karachi on 20.06.1994 and reached Dubai on the same day. Again, the passport holder left Dubai on 28.06.1994 but there is no entry stamp showing his arrival at any place. After seeing the Pakistani as well as Indian Passports, it can be seen that Yusuf Ahmed Mohammed and A-1 are the same persons.

c) Pakistani Passport No. AA-763651 in respect of Aftab Ahmed Mohammed (A-2) shows that the passport holder left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993 itself. The said person left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said person again left Karachi on 17.06.1994 and entered Dubai on the same day. The said person left Dubai on 03.07.1994. Again, the said person left Karachi on 09.07.1994 and entered Dubai on 09.07.1994 itself. Again, the said passport holder left Dubai on 25.08.1994 and entered India on 25.08.1994 itself.

d) Pakistani Passport No. AA-763650 in respect of Akhtar Ahmed Mohammed shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993 itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on 17.06.1994 itself. Again, the said passport holder left Dubai on 25.08.1994 and reached India on 25.08.1994 itself.

e) Indian Passport No. C-340734 in respect of Yusuf Abdul Razak Memon (A-4) shows that the said person left Bombay on 11.03.1993 and reached Dubai on 11.03.1993. Further, he left Dubai on 17.03.1993. However, there is no arrival stamp of any country on the said passport.

f) Pakistani Passport No. AA-763654 in respect of Imran Ahmed Mohammed reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on 20.06.1994 itself. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the passport holder left Dubai on 25.08.1994 and arrived at New Delhi on 25.08.1994. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohammed, it is clear that Imran Ahmed Mohammed and Yusuf Abdul Razak Memon are the same persons.

g) Indian Passport No. C-013120 in respect of Abdul Razak Memon (A-5) (dead) shows that the said person left Dubai on 17.03.1994 and there is no arrival stamp of any country after that. From the Indian Passport and Pakistani Passport, it is clear that Abdul Razak Memon and Ahmed Mohammed are the same persons.

h) Pakistani Passport No. AA-763649 in respect of Ahmed Mohammed shows that the said passport holder left Karachi on 25.07.1994 and entered Dubai on the same day itself. The said passport holder left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and reached India on 25.08.1994 itself.

i) Indian Passport No. C-013796 in respect of Hanifa Abdul Razak Memon (A-6) shows that she left Dubai on 17.03.1993 and there is no arrival stamp of any country on the said passport.

j) Pakistani Passport No. AA-763645 in respect of Zainab Ahmed Mohammed shows that she left Karachi on 25.07.1994 and reached Dubai on the same day itself. She again left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. She again left Dubai on 25.08.1994 and entered India on 25.08.1994 itself. From the Indian passport and Pakistani passport, it is clear that Zainab Ahmed Mohammed and Hanifa Abdul Razak Memon are the same persons.

k) Indian Passport No. N-307801 in respect of Rahin Yakub Memon (A-7) shows that she left Bombay on 11.03.1993 and reached Dubai on 11.03.1993 itself. She left Dubai on 17.03.1993 and there is no arrival stamp of any country on the said passport.

l) Passport No. T-0-780 in respect of Rahin Yakub Memon shows that Rahin Yakub Memon reached Delhi on 05.09.1994 on the said passport.

m) Indian Passport No. C-672378 in respect of Rubina Suleman Memon (A-8) shows that she left Dubai on 20.03.1993. There is no arrival stamp of any country available on the said passport.

n) Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport.

o) Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on 25.08.1994. The passport shows that Rubina Suleman Memon and Mehtab Aftab Ahmed are the same persons.

The above evidence alongwith the confessions of various co-accused amply prove that the weapons training was organized with the aid of the Government of Pakistan and also clearly shows a very deep involvement of A- 1 in the organization and conduct of serial bomb blasts in question. Retractions:

126) It has been contended by learned senior counsel that all the confessions relied upon have been retracted and therefore, they are not trustworthy and it would not be safe to place reliance on them. It is also contended that those statements had been obtained under threat and coercion and were not voluntary, as such, those confessional statements could not be taken to be worthy of reliance. It was submitted by the prosecution that a voluntary and free confession, even if later retracted, can be relied upon. It was pointed out that the retractions were not made at the first available opportunity by the accused persons. It was also highlighted that after their arrest, the accused were brought before the Magistrate’s court several times in 1993 and 1994, however, the retractions were made many months after recording of the confessions.

127) This Court, in Mohd. Amin v. CBI, (2008) 15 SCC 49, considered several TADA cases where confession was recorded under Section 15 of TADA and later retracted. This Court was pleased to observe:

“If a person accused of committing an offence under the Act challenges his confession on the ground that it was not made voluntarily, then the initial burden is on the prosecution to prove that all requirements under Section 15 of the Act and Rule 15 of the Rules have been complied with. Once this is done, the burden shifts on the accused person and it is for him to prove that the confession was not made voluntarily and that the same is not truthful and if he adduces evidence during the trial to substantiate his allegation that the confession was not voluntary then the court has to carefully scrutinize the entire evidence and surrounding circumstances and determine whether or not the confession was voluntary. The confession made under Section 15 of the Act cannot be discarded only on the ground of violation of the guidelines laid down in Kartar Singh case because the same have not been incorporated in the Act and/ or the Rules.” The court rejecting the contention that confession should not be relied upon further held in Paragraph 69 that:

“If the confessions of the appellants are scrutinized in the light of the above enumerated factors, it becomes clear that the allegations regarding coercion, threat, torture, etc. after more than one year of recording of confessions are an afterthought and products of ingenuity of their advocates. The statements made by them under Section 313 of CrPC were also the result of an afterthought because no tangible reason has been put forward by the defence as to why Appellants A-4 to A-8 did not retract their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial court did not commit any error by relying upon the confessions of the Appellants A-4 to A-8 and A-10 and we do not find any valid ground to discard the confessions of Appellants A-4 toA-8 and A-10.”

128) This Court, in Jameel Ahmed vs. State of Rajasthan, (2003) 9 SCC 673 held that “it happens very often, it is the common defence of a person making confessional statement to deny the same or retract from the same subsequently and to allege compulsion in making such statement.”

129) In State of Maharashtra vs. Bharat Chaganlal Raghani, (2001) 9 SCC 1, this Court, while setting aside the judgment of acquittal recorded by the Designated TADA Court, observed as under:

“58. …. There is no denial of the fact that the judicial confessions made are usually retracted. Retracted confessions are good confessions if held to have been made voluntarily and in accordance with the provisions of law…. Corroboration of the confessional statement is not a rule of law but a rule of prudence. Whether in a given case corroboration is sufficient would depend upon the facts and circumstances of that case.”

130) In Manjit Singh vs. CBI, (2011) 11 SCC 578, this Court, while considering the question whether retracted confessions of co-accused could be relied upon to convict the accused, held that the retracted statements can be used against the accused as well as the co-accused provided such statements were truthful and voluntary when made. In the said case, the two accused that made confessional statements, subsequently retracted from their statements. This Court observed:

“87. A confessional statement given under Section 15 of TADA shall not be discarded merely for the reason that the same has been retracted….” Where the original confession was truthful and voluntary and has been recorded after strictly following the law and the prescribed procedure, the subsequent retraction and denial of such confessional statement in the statement of the accused under Section 313 was only as a result of afterthought.

131) In Kalawati vs. State of Himachal AIR 1953 SC 131, it was said that “the amount of credibility to be attached to a retracted confession would depend upon the facts and circumstances of each case.”

132) In State of Tamil Nadu vs. Kutty AIR 2001 SC 2778, it was held:

“…..the twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Therefore, retracted confession may form legal basis for conviction if the court is satisfied the confession was true and was voluntarily made.” (See also: Navjot Sandhu (supra).

133) In Balbir Singh vs. State of Punjab, AIR 1957 SC 216, it was held that the rule of practice and prudence requires a retracted confession to be corroborated by independent evidence. (See also: Parmananda Pegu vs. State of Assam, AIR 2004 SC 4197, Pyare Lal Bhargava vs. State of Rajasthan AIR 1963 SC 1094, Kehar Singh & Ors. vs. State AIR 1988 SC 1883, Babubhai Udesinh Parmar vs. State of Gujarat (2006) 12 SCC 268).

134) It is therefore clear that where the original confession was truthful and voluntary, the Court can rely upon such confession to convict the accused in spite of a subsequent retraction and its denial in statement under Section 313. Since we have elaborately discussed the contention with regard to retraction of statements, there is no need to refer to the same in respect of other appeals before us.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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