Mumbai Gateway of India Bomb Blast Case-POTA Case Judgement Bombay High Court

8/2/2019 Mumbai Gateway of India Bomb Blast Case-POTA Case Judgement Bombay High Court

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION

CONFIRMATION CASE NO.5 OF 2009

The State of Maharashtra .. Appellant(Ori. Complt.)

versus

1. Sayeed Mohd. Hanif Abdul Rahim,

2. Ashrat @ Arshad Shafiq Ahmed Ansari,3. Fehmida w/o Sayyed Mohd. Hanif .. Respondents

(Ori.Accused Nos.1 to 3)WITH

CRIMINAL APPEAL NO.880 OF 2009

Sayyed Mohd. Hanif Abdul Rahim,Oc.Rikshaw Driver, R/o.D/7, Salim Chawl,

Chimatpada, Marol Naka, Andheri (W),Mumbai-400 059. .. Appellant(Presently lodged at Nagpur Central Prison (Ori.Accused No.1)convicted prisoner in the present matter).

versus

The State of Maharashtra .. Respondent(At the instance of DCB, CID, Mumbai)

WITHCRIMINAL APPEAL NO.857 OF 2009

Ashrat @ Arshad Shafiq Ahmad Ansari

Age 32 years, Plot No.515, Junnat Nagar,C.D.Barfiwala Marg, Andheri (W),

Mumbai 400 058.Presently in Judicial Custody .. AppellantMumbai Central Prison (Arthur Road Jail), (Ori.Accused No.2)Mumbai.

versus

The State of Maharashtra .. Respondent

(Through : DCB, CID Unit-VIII)


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Fehmida w/o Sayyed Mohd. Hanif,Age 43 years, Occ. Housewife,R/o.D-7, Salim Chawl, Chimatpada, .. AppellantMarol Naka, Andheri (E), Mumbai-400 059. (Ori.Accused No.3)(At present in Yerawada Central Prison).

versus

The State of Maharashtra .. Respondent(At the instance of DCB , CID, Mumbai)


The State of Maharashtra .. Appellant

versus

1. Mohd. Hasan Mohd. Anas Shaikh @

Hasan Bateriwala,

Near Nurul Islam Masjid, Sanjay Nagar,Hill No.3, Ghatopkar (W),Mumbai.

2. Mohd. Rizwan Mohd. Issaq Ansari @

Rizwan Ladoowala,Rajiv Gandhi Nagar, Burma Shell Line,

Near Gulistan Madarasa, Kurla (E),Mumbai. .. Respondents

(Ori.Accused Nos.4 & 5)

WITHWRIT PETITION NO.2539 OF 2008

The State of Maharashtra Petitioner (Ori.Opponent)

versus

1. Mohd. Hasan Mohd. Anas Shaikh @Hasan Bateriwala ,

Near Nurul Islam Masjid, Sanjay Nagar,

Hill No.3, Ghatkopar (W), Mumbai.


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2. Mohd. Rizwan Mohd. Issaq Ansari @Rizwan Ladoowala,Rajiv Gandhi Nagar, Burma Shell Line,

Near Gulistan Madarasa, Kurla (E),Mumbai.Respondents

(Ori Accused Nos. 4 & 5)

APPEARANCES :

Ms.Poornima H. Kantharia, A.P.P. a/w Shri J.P.Yagnik, A.P.P. for State(Appellant in Conf.Case No.5/2009, Petitioner in W.P.No.2539/2008,Appellant in Cri.Appeal No.4/2009, and Respondent in Cri.Appeal

Nos.880/2009, 857/2009 and 1128/2009).

Shri Khan Abdul Wahab for ori.accused no.1 (Respondent no.1 in Conf.Case

No.5/2009 and Appellant in Cri.Appeal No.880 of 2009).

Shri Sushan Kunjuraman and Shri Mahesh Kadam for ori.accused no.2,Respondent no.2 in Conf.Case No.5/2009 & Appellant in Cri.Appeal

No.857/2009).

Shri Sudeep Pasbola a/w Ms.Maharukh Adenwalla i/by Rahul Arote for

ori.accused no.3 (Respondent no.3 in Conf.Case No.5/2009, Appellant inCri.Appeal No.1128/2009).

Shri Sharif Shaikh for ori.accused nos.4 and 5 (Respondent nos.1 & 2 inW.P.No.2539/2008 & Appellant in Criminal Appeal No.4/2009).

CORAM : A.M.KHANWILKAR ANDP.D.KODE, JJ.

DATEOF RESERVING: NOVEMBER 12, 2011.

DATE OF PRONOUNCING : FEBRUARY 10, 2012.

JUDGMENT ( PER : P.D.KODE, J. )

1. All the aforesaid proceedings arise out of either-

(a)Report/Direction dated 10th May 2005 given by Review

Committee constituted under section 60 of Prevention of


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Terrorism Act, 2002 (hereinafter referred as "POTA") as

amended by Prevention of Terrorism (Repeal) Act, 2004

(hereinafter referred as "Repeal Act") or;

(b)Order dated 17th November, 2008 passed on Exh D-116

in POTA Special Case No.1 of 2004 during the midst of trial

after evidence of both the sides at trial was over or;

(c)Final judgment and order delivered on 6th

August, 2009in POTA Special Case No.1 of 2004 of the Special Court

under POTA Act for Greater Mumbai.

2. The said POTA Special Case No.1 of 2004 was registered on

the basis of charge sheet filed on 5th February 2004, by Chief

Investigating Officer (PW 103) ACP Suresh Walishetty at the

conclusion of investigation of four crimes for commission of offences

under section 120-B read with sections 302, 307, 326, 324 of IPC

under sections 3,4,5 of Explosives Substances Act, 1908 and under

sections 5 and 9 (b) of Indian Explosives Act, 1884 and under sections

3,4,5 and 20 of Prevention of Terrorist Act, 2002 against in all six

named accused in the charge sheet along with wanted accused Shafakat

Ali, Khalid Maqsood, Jehangir, Bilal, Samiullah and Rehman.

3. During the pendency of the case, pursuant to the prosecution

Application dated 5.5.2004 at Exh-P, under section 307 of Code of


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Criminal Procedure (hereinafter referred to as `the Code'), Jehangir

Patne (numbered as accused no.4 in the said charge sheet) was

accorded pardon and was subsequently examined as an Approver PW2

at the trial.

4. Accordingly, charge as described in detail in Exh-P5, was

framed at said trial on 23rd June 2004, for commission of various

offences under IPC, Explosives Substances Act, Indian Explosives Act,

Prevention of Terrorist Act, and Damage to Public Property Act, etc.

against remaining five accused named in the charge sheet. While

framing the said charge Mohd. Hasan Mohd. Anas Shaikh @ Hasan

Batterywala numbered as accused no.5 and Mohd. Rizwan Mohd.

Issaq Ansari @ Rizwan Ladduwala numbered as accused no.6 in the

charge sheet, were renumbered as accused nos.4 and 5 respectively

(who are hereinafter referred to as A4 and A5').

5. After evidence of both the parties was adduced at the trial,

Review Committee constituted under section 60 of POTA as amended

by Repeal Act, gave hearing to said accused A1 to A3, A4 and A5 and

their counsel as well as to the learned Public Prosecutor. After

examining the Police Report comprised of statements of witnesses,

seizure memos and other material, the said Committee on 10th May


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2005 opined that the said A4 and A5 were not found connected with

the incident of terrorism in the four bomb blast cases and therefore

there is no basis for their prosecution under POTA. However, A1 to

A3 and PW2 (numbered as accused no.4 in the charge sheet) were

prima facie connected with offences under POTA and therefore, there

appears no misuse of power in invoking POTA against them. The said

Committee therefore directed State of Maharashtra to proceed as per

Clause (a) of sub-section (3) of Section 2 of Repeal Act qua the said

A4 and A5.

6. Thereafter, said A4 and A5 preferred MA No.42 and MA

No.44 of 2005 to invoke Section 60 (7) of POTA and to discharge

them from the said case. The same were rejected by the Special

Judge, POTA Court Mumbai vide order dated 11th August 2005. A4

preferred Criminal Appeal No.783 of 2005 while A5 preferred

Criminal Writ Petition No.2363 of 2005 before this Court challenging

the said order. Both the said proceedings were disposed of by this

Court by order dated 24th October 2005. This Court heldthat the said

A4 and A5 cannot be discharged directly merely on the basis of

opinion of the Review Committee. The Court directed the prosecution

to file an application for withdrawal of the case against A4 and A5

under section 321 of the Code.


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7. On 18th November, 2005 A4 and A5 filed application

Exh.D-54 before POTA Court to call upon Special PP to inform the

Court whether he intends to make an application as directed by this

Court vide order dated 24th October, 2005. In response to the said

application, on 24thNovember,2005, Special Public Prosecutor filed

application P-319 for recalling PW8 for further examination-in-chief

on account of new material being introduced during his cross-

examination. In the said application P-319, it was contended that the

same had become necessary in view of direction given by this Court to

take out an application under Section 321 of Cr.P.C. It was further

contended that the same was necessary as Special PP had to formulate

his opinion about existence or non-existence of prima facie case under

POTA against A4 and A5 for making an appropriate application as

directed by this Court.

8. By the common order, passed on 29th November, 2005, on

application Exh.P-319 and Exh.D-54, the POTA Court kept the

prayer for recall of PW8 for consideration after prosecution examines

all the witnesses excepting the investigation officer, as ordered earlier

by the said Court upon the earlier application. On 5th December,

2005 Special Public Prosecutor for the matters stated in the application

submitted that it was not desirable at all to apply for withdrawal from


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prosecution under POTA against A4 and A5. Ultimately on 3rd

January, 2006 the learned Special PP preferred application Exh.P-343

under Section 321 of the Code stating that for the matters stated

therein, after giving due weightage to the observations and

recommendations of the Central POTA Review Committee, he is of

opinion that there is prima facie case under POTA against A4 and A5.

9. During the hearing of Exh.P-343 and Exh.D-54 and while

passing common order thereon, on 17th January,2006, the POTA

Court was required to adjourn the matter in view of the Advocate for

A4 and A5 had sought time and the POTA Court continued hearing

and passing of the order on 23rd January, 2006. By the order

completed on the said date, POTA Court, for the reasons stated therein,

disposed of the said application. The POTA Court held that, no case

for withdrawal under Section 321 of the Code was made out.

10. A5 preferred S.L.P. No. 187 of 2006 before the Apex Court

against the order of this Court dated 24th October, 2005 contending

thatin the light of report of Review Committee, he ought to have been

discharged without following the procedure as laid down under section

321 of the Code. After grant of leave, the said S.L.P. was numbered as

Criminal Appeal No. 359 of 2006. The same was clubbed along with


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the other matters of accused persons from Godhara Fire incident. It

was later on disposed of by the Apex Court vide order dated 21st

October 2008 with following observations in paragraph 51.

"We therefore hold that once the Review Committee onreview under section 2(3) of the Repealing Act, expresses the

opinion that there is no prima facie case for proceedingagainst the accused, in cases in which cognizance has been

taken by the Court, such cases shall be deemed to have been

withdrawn. The only role of the Public Prosecutor in the

matter is to bring to the notice of the Court, the direction ofthe Review Committee. The Court on satisfying itself as towhether such an opinion was rendered, will have to record

that the case stands withdrawn by virtue of section 2(3) of the

Repealing Act. The Court will not examine the correctness orpropriety of the opinion nor exercise any supervisory

jurisdiction in regard to such a opinion of the ReviewCommittee. But we make it clear that if the opinion of the

Review Committee is challenged by any aggrieved party in

writ proceedings and is set aside, the Court where theproceedings were pending, will continue with the case as if

there had been no such opinion."

11. Relying upon the said observation, A4 and A5 preferred

Application Exh.D-116, for exonerating them from the charges

framed against them on the basis of report given on 10th May 2005 by

Review Committee of POTA. That application was allowed. It is held

that prosecution against said A4 and A5 is deemed to have been

withdrawn as per clause (a) of sub-section 3 of section 2 of Prevention

of Terrorism (Repeal) Act, 2004. Thus, the said A4 and A5 were

ordered to be released if otherwise not required to be detained in

connection with some other case, with further rider that the case

against the said accused would be revived in the event of this court


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setting aside the said opinion given by Review committee on POTA in

a writ proceeding preferred by aggrieved party.

12. The prosecution on 2nd December 2008 preferred above

referred Writ Petition No.2539 of 2008 for quashing and setting aside

the direction given by the POTA Review Committee on 10th May

2005. Similarly, on 22nd December 2008 the prosecution preferred

above referred Criminal Appeal No.4 of 2009 under section 378(1) of

the Code against the order dated 17th November 2008 discharging A4

and A5.

13. In view of the deemed withdrawal of prosecution against A4

and A5 and their consequent release from the case, POTA Special Case

No.1 of 2004, thereafter, proceeded against the remaining accused i.e.

accused no.1 Syed Mohammed Hanif Abdul Rahim, accused no.2. Ashrat @

Arshad Shafiq Ahmed Ansari and accused no.3 Fehmida wife of accused no.1

Syed Mohammed Hanif. At the conclusion of the said trial, the learned trial

Judge held that out of the charges framed against said A1 to A3, each of them

was guilty for commission of offences as described in the table given

hereinbelow and sentenced each of them for respective offence for which they

were found guilty, as stated in the third column against the respective offence

mentioned in second column of the said table :


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Sr.No.

Or thecount of

charge

Found guilty and

convicted for theoffence of

Sentence awarded for the same

1. 120B of IPC Death & fine Rs.5000/- I.d.R.I.for 2yrs each.

2. 120B r/w 302 IPC Death & fine Rs.5000/- I.D.R.I.For 2yrs each

3. 120B r/w & 307 IPC Life and fine Rs.5000/- I.d. R.I.For 5

yrs4. 120B r/w sec .427

IPCR.I.for 2 yrs

5. 120B r/w sec,.3 (2)(a)of POTA Act

R.I. For 2 yrs

6. Sec.3 (3) of POTAAct

Imprisonment for life fine Rs.5000/-I.d.R.I. for 2 yrs

7. Offence punishable

u/s 4(b) of POTA Act

Imprisonment for life.

8. Sec.5 r.w. 9(B) ofExplosives Act 1884.

R.I. for two years

9. Sec.3 of ExplosivesSubstances Act,1908

Imprisonment for life

10. Sec.4 of ExplosiveSubstances Act.

R.I. For 20 yrs

11. Section 3 of

Prevention ofDamage to PublicProperty Act, 1984

R.I. For 5 yrs fine Rs.1000/-I.d.

R.I.for 6 months

12. Sec.4 of Prevention ofdamage to publicProperty Act, 1984

7 yrs fine Rs.2000/- I.d. R.I. 6months.

However, by the same judgment and order, the learned trial

Judge also came to the conclusion that the said accused were not guilty


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for the remaining offences for which they were charged and acquitted

them from the said charges framed against them.

14. The reference made by the learned trial Judge for

confirmation of death sentence given to each of the aforesaid accused

has given rise to above stated confirmation case No.5 of 2009.

15. Accused no.1 has challenged the judgment and order

convicting and sentencing him by preferring Criminal Appeal No.880

of 2009. While Accused no.2 has challenged the judgment and order

convicting and sentencing him by preferring Criminal Appeal No.857

of 2009. While Accused no.3 has challenged the judgment and order

convicting and sentencing her by preferring above stated Criminal

Appeal No.1128 of 2009.

16. The said charge sheet giving rise to registration of said

POTA Special Case no. 5 of 2004 was submitted by Chief

Investigating officer ACP Shri.Walishetty (PW 103) at the end of

investigation of four different crimes registered with four different

police stations regarding an attempt to commit explosion and three

explosions committed by using the bombs within the area under

concerned police station. For the sake and convenience necessary

details regarding the same can be tabulated as under :-


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Sr.No.

Attempt orExplosionat

Bombplantedin

Date &Timeofincident

CrimeNo.regd withpolice Stn.upon FIR of

For Offencesunder

Effect ofincident/explosion

1. Seepz busDepotMIDC(Attempt)

BESTBusno.MH01- 8765 ofRouteNo.336

2ndDec,2002at 21.40hrs

C.R.No.400/2002 ofMIDC policestationAPI TanajiJadhav PW-63

Indian PenalCode,ExplosivesSubstancesAct,IndianExplosives Act.

Nil as bombwas defusedbeforeexplosion

2. Karanilane, LBS

junctionGhatkopar

BESTBus

No.MH-01-H-8246Route no.340

28thJuly,2003 .

21.10 hrs

C.R.No.235/03

Ghatkoparpolice Stn.BusconductorDilipWankhedePW 54

..do..and alsoPrevention of

Damage to PublicProperty Act.

2 personskilled, 60

passengerswere injured2 autorickshaw and 2motor cyclesand severalshopsdamaged of

public andprivate

property ofvalue to the

tune of Rs.16.30 lacs

3. ZaveriBazar nearMumbadevi

temple

MotortaxiNo.MH-0

2-R-2022

25th

August,2003 at

12.40 hrs

C.R.No.201/03of L.T. Marg

Police Stn.another taxi

driver Shri.LalsahebSingh PW-27

Penal Code &Indian ExplosivesAct.

36personskilled,138 were

injured,property worth

of 95 lacsincluding 41vehicles shops,and residentialhouses were

damaged.

4. Gatewayof India,

Opp.Taj

MahalHotel

MotorTaxi

MH-02-

R-2007

25th

August,

2003 at

13.05hrs

C.R.No.206/03 of

Colaba

policestation P.C.

Camilo ReisPW 14.

Penal Code,Explosives

Substances Act,

Explosives Act,Prevention of

Damage toPublic Property

Act and POTA

Act.

16 personskilled,

46 injured,

20 carsdamaged,


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17. In all 54 persons were killed and 244 persons were injured

and the property worth Rs. 1,60,00,000/- was damaged in said three

incidents of explosion caused by means of bombs. Investigation in the

above four C.Rs. registered at concerned police stations were initially

carried out at the said Police Stations. However, no clues regarding

culprits involved in crime registered with MIDC as well as Ghatkopar

Police Station was forthcoming even until occurrence of incident of

explosion at Zaveri Bazar and at Gateway of India and or until the A2

was arrested during the investigation of crime registered with

Ghatkopar Police Station on 31st of August, 2003. For the sake of

convenience the details pertaining to the initial investigation are

narrated while considering the prosecution evidence regarding

respective incidents. The investigation of the said four crimes

registered at the said police stations was afterwards taken over by the

Crime Branch by registering crime number of DCB CID as shown in

the table given below :

Sr.No.

Original CR Number registered with PoliceStation

DCB CID CR Nos.

1 C.R. No.400/02 of MIDC Police station CR 157 of 2003

2 C.R.No.235 of 2003 of Ghatkopar PoliceStation

CR No.75 of 2003

3 C.R.No.201 of 2003 of L.T.Marg PoliceStation

CR No.91 of 2003

4 C.R.No.206 of 2003 of Colaba Police Station CR No.86 of 2003


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ARREST OF ACCUSED

NOS.1, 2 & 3 :-

18. Upon receipt of secret information Police Officers of DCB

CID of Unit-XI regarding the suspicious behaviour of Accused No.2

Ashrat (hereinafter referred to as `A2'), A2 was apprehended by the

team of Police Officers consisting PI Savde, PSI Talekar (PW-98),

PSI Kandalgaonkar (PW-99), PSI Vankoti (PW-97), PSI Toradmal

(PW-51) and the staff members on 31.8.2003 at about 15:30 hrs. A2

was thereafter extensively interrogated by said Police Officers and

during interrogation clue was received regarding his involvement in

planting of bomb in Ghatkopar BEST Bus. A2 was then formally

arrested at about 20:20 hrs. by PSI Todarmal (PW 51). Under arrest

cum seizure memo (Exh. P-385) prepared in presence of panchas

Mukund Ingrulkar (PW-50) and Shri Vijay Kadam, the articles found

during the personal search of A2 were seized.

19. The said articles seized during the search were i)motor

driving licence in name of A2 Ashrat Ansari Shafiq Ahmed Ansari.

ii)identity card issued by Janata Party in the name of A2 as member

of said party. iii)Four paper cuttings of Urdu News paper. iv)A white

paper chit bearing some matter in Urdu language on one side andthe


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telephone No. 6391553 on other side. v)a white paper chit bearing

the name of Jahid Yusuf Patni (APPROVER PW-2) with his e-mail

address [email protected]. vi)A visiting card of Noor

Electricals owned by S. M. Hanif (Accused No.1) and A.B. Shaikh

with the Mobile No. 9892077831-9892451164 of Nasir and Land-

line No. 28527761 of Hanif mentioned on the overleaf of the above

visiting cards. vii)Seven passport size photographs, cash amount of

Rs. 2,200 and other miscellaneous articles.

20. A.2, thereafter, during the interrogation effected in the

Office of Unit No.XI situated at Kandivali, gave clue that A2 along

with his associates i.e. deceased accused Nasir, A1 and A3-wife of A1

had prepared bombs and placed the same in BEST bus of Route No.

336 on 2.12.2002 at Seepz and in a BEST bus of Route No.340 at

Ghatkopar on 28.7.2003. He also made a statement revealing his

willingness to show the place where the remaining material out of

material used for preparing Bomb was kept by him. The same was

recorded as (Exh. P-393). A2 thereafter led Police Officers and

panchas towards his house on first floor of the hutment in Juned Nagar,

Juhu Galli, Andheri (West), Mumbai, entered in the room and

produced a tin box kept below the cot which contained 30 gelatin

sticks, 3 alarm clocks, and 8 detonators. The same were seized by PSI


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Vankoti (PW-97) in presence of panchas Sunil Bhatia (PW-53) and

Sameer Sayar vide panchnama (Exh.P-393-A).

21. After returning to the office of DCB CID Unit-XI along with

said panchas and police A2 again informed the Police Officers that he

would show them the place where the bombs were prepared by him

and his associates. A2 thereafter led police officers and panchas

towards the house of A1 Hanif and A3 Fehmida situate at Salim

Chawl, Room No. D-7, Chimat Pada, Marol, Andheri (East), Mumbai.

A1 & A3 were in the said house along with their two daughters

Farheen and Sakira. A2 Ashrat led Police Officers and panchas

towards loft of the room where bombs were prepared by him and his

associates. Police Officers thereafter took search of house of A1 and

from the cupboard seized about ten documents/articles.

22. The same were i) passport of A1 bearing No. Q-548661,

dated 15.10.80 issued by Mumbai Passport Office. ii) Passport in the

name of A1 bearing No. P-468148, dated 11.9.93 issued by Jeddah

Passport Office. iii)Passport in the name of A3 bearing No.A-3581902,

dated 6.8.97 issued by Mumbai Passport Office. iv) Passport in the

name of Farheen Mohd. Hanif Sayyed (daughter of A-1 & A-3)

bearing No. A-3525401, dated 6.8.97 issued by Mumbai Passport


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Office. v) Passport in the name of Irfan Hanif Mohd. Sayyed (son of

A-1 and A-3) bearing No. A-3527645, dated 8.8.97 issued by Mumbai

Passport Office. vi) Photo identity card of a person resident of Philton,

Dubai, Jumeria.vii) Visiting card of Arun Vaswani mentioning the

phone numbers of Chetan, Ashwin, Masjid, Ashrat Shafiq Ansari,

Shiraj Electricals on the overleaf of the card. viii) Visiting card of Aziz

in the name of Mumbai Motors and the name of Nasir and his Mobile

No. 9892451164 mentioned on its overleaf. ix) Visiting card of Noor

Electrical owned by S.M. Hanif and the name of Nasir with his Mobile

No. 9892077831 mentioned overleaf. x) Wallet containing cash of

Rs.127 and driver badge of Cab bearing No. 62652.

23. A2 thereafter pointed a water tank adjacent to North-East

wall of the home of A1 and one gunny bag containing some material

kept near the water tank. On opening the said gunny bag, it was found

containing i) 125 aluminum clips kept in one cloth bag of Khaki

colour. ii) soldering machine along with plug and wire. iii) 9 alarm

clocks in various sizes of Fengseng Co. iv) one clipper of Super Eagle

Co. (12 m.m.) v) One polyester Filament Yarn role of white colour. vi)

One solder wire role. vii) One Polyester Yarn fitting machine (Super

eagle make.). Viii) 16 crackers of red colour.


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24. One cardboard box was also found kept on the mezzanine

floor. On opening the same, it was found containing 117 gelatine

sticks with Nobel Gel-80 necl Hingani Vardha mentioned on each

stick. So also one corrugated box wrapped in cloth was found kept

on the water tank and on opening was found containing 12

electronic detonators. All said articles were seized by Police in

presence of panchas vide panchnama (Exh. P-394-A) which was

concluded at about 2.35 hrs. on 1.9.2002. A1, his wife A3 and their

daughter Farheen were arrested in connection with BEST Bus Bomb

Explosion Case of Ghatkopar registered vide C.R. No.75 of 2003 under

custody memo. The arrested accused persons along with the seized

articles were taken to the office of DCB CID, Unit XI at Kandivali.

25. After taking some rest after reaching Office of Unit No.XI,

A1 led Police Officers to the place where the gelatin sticks were

hidden by him. He had taken police officers and panchas towards

Chimat Pada, in a lane near Maheshwari Hotel and pointed out Room

No. 14 in Salim Chawl which was found locked. A1 Hanif opened the

lock with the key in his possession and entered the room. He was

followed by police officers andpanchas. A1 took out yellow coloured

gunny bag which was kept below the cot and 58 gelatin sticks were


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found in the bag and the said sticks came to be seized vide panchnama

(Exh.P-395A)

26. After arrest of A 1 to 3 they were produced before Special

Court on 1-9-2003. At that time A 1 made complaint of ill-health and

he was thereafter taken to Bhabha Hospital at Bandra for medical

treatment and after getting discharged from the hospital he was

produced before the Special Court on 2-9-2003. He was later on

remanded to Police custody till 15-9-2003. On 1-9-2003 A2 and A3

were already remanded to the police custody by special court. Since it

was revealed from the school record of Accused Farheen (daughter of

A-1 and A-3) that she was minor at the time of commission of offence,

she was produced before the Juvenile Court at Dongri, Mumbai.

27. Accused No.2, during his interrogation by ACP Shri

Walishetty (PW-103) Investigating into the offence of Ghatkopar

BEST bus bomb blast, disclosed that he himself, A1, wife of A1 i.e.

A3 and their daughter Farheen were involved in the offence of bomb

blasts. A2 on 4-9-2003 expressed his willingness to give confession.

The same was apprised by IO Shri Walishetty to Joint C. P. (Crime)

who directed DCP Shri Vinod Lokhande (PW-88) of Zone-X to record

the confession of Accused No. 2 Ashrat.


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28. On 11-9-2003, PW-103 produced A2 before PW-88 DCP

Zone-X. He complied with the formalities of recording confession

amongst other explaining A2 that he was not bound to make confession

and if A2 makes the same it could be used against him. A2 was given

24 hours time for reconsideration of his decision to make the

confession and in the meantime A2 was lodged in the lock-up of

Bandra-Kurla Complex Police Station. A2 was produced on the next

day i. e. on 12-9-2003 before PW-88 and he was again apprised by

PW-88 that he was not bound to make the confession and if he makes

the confession, the same would be used as evidence against him. Upon

such appraisal, A2 stated that the time given to him for reconsideration

was sufficient and he reiterated his desire to make the confession.

Confession of A2 was thereafter recorded by PW 88 Exh.501A. A 2

was then produced before Chief Metropolitan Magistrate on the same

day i. e. on 12-9-2003 and his separate statement confirming that his

confession was recorded by C. M. M. A 2 in the said confession gave

all necessary details pertaining to the role played by him and his

associates in the bomb blasts at Ghatkopar, Mumbadevi and Gateway

of India.

29. Prior to occurrence of bomb explosion near Mumbadevi

Temple at about 12.40 hours A2 had communicated to deceased


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22 conf.5.09

Accused Nasir on his Mobile 9892451164 through STD booth of

PW-28 Dilip Yagnik on telephone No. 65389009 that he had kept the

goods in the taxi near Mumbadevi Temple and work will be done.

Exh. P-284 is the print out of the above call.

30. Accused Nasir had purchased SIM card of Airtel bearing No.

9892451164 from a shop i. e. Raj Electronics at Marol. Delivery

challan as well as enrollment form to such effect i.e. Exh. P-276 and

Exh. P-278 respectively were collected by IO. Accused Nasir had also

purchased another SIM card of Airtel bearing No. 9892077831 from

Karishma Electronics at Marol. Exh. P-275 is challan of the said

purchase. PW-5 Ashok is the proprietor of Karishma Electronics and

PW-4 Anil is the owner of the Raj Electronics. Their statements were

recorded by IO.

ENCOUNTER INCIDENT 12th September,2003

31. Police Officers in search of wanted accused Nasir received

the information that the said accused along with his associates was

likely to come near Ruparel College in a Maruti-800 car with Arms,

Ammunitions, and Explosives on 12th March 2003. PSI Sachin

Kadam (PW-1), API Ahir, PSI Sabnis along with other staff went to


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23 conf.5.09

the said place at Matunga (West) on the said day and laid a trap. As

accused Nasir driving a Blue coloured Maruti-800 came at the said

spot, the Police Officers asked him to stop the same. However, he paid

no heed to the same and persons in the car started firing from the

revolvers towards the Police. PW-1 Sachin Kadam was compelled to

open firing in retaliation upon Nasir and his associates due to which

Nasir and his associates Hasan Habib sustained injuries. Both of them

were taken to KEM Hospital in mobile van but they were declared

brought dead by the doctors. 92 Gelatin Sticks, 8 Detonators, 2

Alarm Clocks and wire cutter were found in the said Maruti-800 car

bearing No.BLM-6184.

32. LAC Case No.487 of 2003 for the said contraband material

found in the said van and seized and a separate Crime No.225 of 2003

regarding said encounter incident was registered at Shivaji Park Police

Station. The said Maruti car along with explosives therein was seized

by the said Police Station at the time of preparing inquest panchanama

Exhibit-P-254. Two revolvers, mobile phone, two SIM cards, two

credit cards, two driving licences, election cards and some chits were

found on the dead body of Nasir and the same were seized.


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24 conf.5.09

Recording of Confessions of A1 &A3

33. A1 and his wife A3 while in Police custody on 16th

September 2003 expressed willingness to give the confession. Joint

Commissioner of Police (Crime) directed DCP Shri Lokhande

(PW-88) to record confession of A1 and DCP Ms. Archana Tyagi

(PW-90) was directed to record confession of A3.

34. On 22nd September 2003, PW-88 complied with the

formalities for recording confession of A1 and on the same day

recorded first part of his confession (Exhibit-P-501). Similarly, after

following necessary procedure on 24th September 2003, PW 88

recorded the confession of said accused. Thereafter, on 25th

September 2003, A1 was produced before the Chief Metropolitan

Magistrate and his statement (Exhibit-P-623) was recorded by the

Chief Metropolitan Magistrate. Thereafter, confession of A1 was

forwarded to POTA Court on 26th September 2003 vide covering

letter Exhibit-506-B.

35. On 22nd September 2003, PW-90 complied with the

formalities for recording confession of A3. She recorded first part of

her (A3) confession (Exhibit-P-522). PW-90 again took further


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25 conf.5.09

proceedings on 24th September 2003 for recording confession of A3

produced before her and recorded second part of her confession

(Exhibit-522-A). A3 was thereafter produced before CMM on 25th

September 2003 and her statement regarding the confession was

recorded by the CMM and along with the same her confession was

forwarded to the POTA Court.

36. During the investigation, it was noticed that the arrested

accused persons and their associates were involved in the commission

of the above four offences. Considering the magnitude of the offences

and nature of the criminal conspiracy hatched Joint Commissioner of

Police (Crime) Shri Satyapal Singh appointed ACP Shri Suresh S.

Walishetty (PW-103) as Chief Investigating Officer to do the

investigation in connection with all the four offences of bomb blasts

and the officers of the concerned Police Stations were directed to

assist Shri Walishetty in the investigation. A1 to A3 were lodged in

Mumbai Central Prison.

37. SEO Shri Waman Sapre (PW-52) on 1st October 2003 at

Mumbai Central Prison conducted the test identification parade of A1

to A3. PW-6 Anil Mulchand Vishwakarma, a carpenter by profession

was witness in resepct of Ghatkopar incident. He identified A2 and


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26 conf.5.09

A3 being the persons with whom he had quarrel while getting down

from the BEST bus route no.340 at Marole Pipeline Stop while he

was returning to Ghatkopar from Andheri. Exhibit-P-389 is the

memorandum of the said parade prepared by SEO PW-52.

38. PW-52 held another identification parade at Mumbai

Central Prison on 11th October 2003 for A1 and A2 in connection

with Ghatkopar incident. Mr.Dilip Wankhede (Conductor of the bus)

(PW-54) identifiedA2 at the said parade as being the person who had

boarded the BEST busroute no.340 at Andheri bus stop along with

one Burkha Clad Lady with her face uncovered to whom he had

issued ticket for Asalpha bus stop and the person who had taken the

seat along with the said lady at the rear side of the bus. Further

identification parade for A3 on the same day was held at Byculla

District Prison (where she was shifted) by the same witness. At the

said parade PW-54 identified A3 as being the Burkha Clad woman

with face uncovered who had boarded the BEST bus of route no.340 at

Andheri stop along with the person who had taken BEST bus ticket for

Asalpha stop. Exhibit-P-391 is memorandum prepared of the said

parade held at Arthur Road and Byculla Prison.

39. The Special Metropolitan Magistrate Shri Madhukar Bodake

(PW-18) on 6th February 2003 conducted the identification parade


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27 conf.5.09

for A1 and A2 at Mumbai Central Prison in connection with CR No.

206 of 2003 of Colaba Police Station (Gate Way of India incident).

The witnesses Nafiz Ahamed Khan (PW-19), Shivnarayan Pande

(PW-15) and Ramchandra Shitalprasad Gupta (PW-20) participated in

the said parade. On 25th July 2003 A1 had been to the house of A2

and the rickshaw was wrongly parked by A1 in front of the shop of

PW-19 and on that count there was a quarrel between A1 and the said

PW-19. PW-19, the owner of a garment factory at Juhu Lane,

Samata Nagar, Andheri (W), Mumbai near the residence of A2 and had

seen A1 many times coming to the house of A2, identified A2 in the

said parade as being the person residing adjacent to his shop since

long and was friend of A1.

40. PW-15 Shivnarayan Vasudev Pandey was the owner of the

taxi bearing No. MH-01-R 2007 and was driving his taxi in Mumbai

since the year 1982. Encountered accused Nasir on 24th August 2003

had engaged the said taxi when parked opposite Amber Oscar Cinema

Hall at Andheri. He had engaged the said taxi for Rs.600/- for going to

the places such as Haji Ali, Hanging Garden, Aquarium, Gateway of

India and Rani Baug and the said taxi was brought by PW 15 with the

said accused at Azad Galli, Andheri (W0. Thereafter, Nasir A-1, wife

Fehmida and their two daughters had travelled in the said taxi from


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28 conf.5.09

Azad Galli to Colaba for visiting places and returned and A1, his wife

Fehmida and their two daughters travelled in the said taxi of PW-15

Shivnarayan Pandey again on 25-8-2003 from Azad Galli, Andheri

(West) to Colaba. A1 had kept one airbag in the dickey of the taxi and

asked the taxi driver to take the taxi towards Arthur Bunder Road at

Colaba and to park the said taxi in front of Hotel Taj in pay & park

site. The same accused had instructed the witness to stay in the taxi till

the arrival of A1 and his family members. PW-15 Shivnarayan

identified A1 in the above parade saying that he was the same person

who put his airbag in the dickey of the taxi and asked him to take the

taxi towards Arthur Bunder Road at Colaba and park the same in front

of Hotel Taj in pay & park site and should not leave the taxi till his

arrival.

41. PW-20 Ramchandra Shitalprasad Gupta has also identified

A1. He claimed to have seen A1 along with his wife and two

daughters travelled in his friends ( Shivnarayan Pandey) taxi. PW 20

however did not identify A2 in the above parade. Exh.-P-323 is the

memorandum of the above TIP which was held on 6-10-2003 in

Mumbai Central Prison.


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29 conf.5.09

42. The Special Metropolitan Magistrate Madhukar Bodake

(PW-18), on 6th October 2003, held identification parade at Byculla

District Prison, regarding A3. The same witness i.e. PW-15

Shivnarayan Pande, identified A3, as the woman travelling along with

her husband and two daughters in his taxi on 25th August 2003. He has

mentioned about parking of that taxi at Gate Way of India in Pay and

Park site in front of Taj Hotel. Ramchandra Gupta (PW-20) and Nafis

Khan (PW-19) also identified A3 in the said parade. Exhibit-324 is

the memorandum panchanama of said parade.

43. Special Executive Officer Shri Sudhir Surve (PW-59) on

8.10.2003 in connection with C.R. No.157 of 2002 held identification

parade of A1 & A2 at Mumbai Central Prison for witness Manoj Patil

(PW-60). PW-60 identified A1 as a person who was in the queue ahead

of him for boarding BEST busRoute No. 312 at about 5.30 p.m. on

2-12-2002 at Seepz Bus depot and as the person who had handed over

a cloth bag to A2 who had later on occupied a seat on the rear side of

the said bus and thereafter A1 having left the stop.

44. Shri Dilip Masram (PW-62), conductor of the same bus

Route No. 312, also identified A2 as a person who had a quarrel with

another passenger at Seepz Bus depot and he pacified the person who


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30 conf.5.09

along with a cloth bag had taken the seat on the rear side of the bus.

PW-62 however did not identify A1 at the said TI parade. The

memorandum of the said TIP prepared by PW-59 is Exh.P-415.

45. Special Executive Officer Shri Dushant M. Ozha on

9.10.2003 at Mumbai Central Prison had conducted identification

parade of A1 and A2 for five identifying witness. At the said parade,

PW-28 Dilip Yagnik working at STD/PCO Booth of Kantilal Jain

situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai- 400 002 identified

A2 as a person, who, on 25-8-2003, at about 12.10 hrs., made

telephone call from his PCO to one Nasir saying that he had kept the

goods in the taxi near Mumbadevi temple and work would be done.

Similarly, witness Harish (PW-30), who was present near

Mumbadevi Temple area on 25-8-2003 for hiring taxi for returning to

his home at C.P. Tank claimed to have seen taxi No. MH-01 H-2022

halted at Zaveri Bazar. He claims that he tried to board the said taxi

but he was told that taxi was not empty and directed him to go ahead

and shortly thereafter there was an explosion in the same taxi. PW-30

had identified A2 as being the same person who had shouted at him

and asked him to go away. Kunjbihari Ramprasad Pandey (PW-29)

and Kutty Manappa Shetty (PW-33) hawkers doing business at Dhanji

Street Naka has identified A2 at the said parade as a person who had a


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31 conf.5.09

quarrel with one Nasir in the area of Dhanji Street Naka at about 6.00

p.m. on 24-8-2003 and they had a quarrel with one motor-cyclist and

the quarrel was separated by the above hawkers. The Memorandum of

the said TI parade prepared by PW-41 being Exh. P-192.

ABOUTAPPROVER

46. The charge sheeted Accused No. 4 Jahid Patne soon after the

three bomb blasts had watched news item on television in Dubai. He

became restless and was unable to sleep after knowing that several

persons lost their lives and many persons were injured in the said

blasts. He started repenting for his misdeeds. He then went to local

Masjid and apprised Maulana by name Jafar Sahab that he was

repenting for his act of having participated in the conspiracy of causing

bomb blasts in India. He was told by Maulana that due to his illegal

act, the persons including woman and children of both religions (Hindu

and Muslim) were killed and it was against the Muslim religion. He

thereafter decided to return to India to surrender before police and

accordingly returned to India on 1-10-2003. He was appraised by his

family members that police from Bandra Crime Branch had been to his

house for making inquiries. Hence, he along with his elder brother

went to the office of Bandra Crime Branch. Chief IO PW-103 made


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32 conf.5.09

inquiry with said accused No.4 Jahid and received credible information

that Jahid was one of the conspirators of the offences of bomb blasts.

PW-103 arrested him on 2-10-2003 in DCB, CID C.R. No. 75/2003

and produced before the Special Court. He was remanded to police

custody till 17-10-2003, which was later on extended upto

30-10-2003.

47. During the course of interrogation Accused No. 4 Jahid

expressed his willingness on 16-10-2003 to give his confession. On

21-10-2003 he was produced before Shri Dhananjay Kamlakar

(PW-12) DCP of Zone-VII. He took proceeding for recording the

confession, Part-I (Exh.P-264). PW-12 took further proceedings on

the next day when accused No.4 was produced i.e. on 23-10-2003.

After following the due procedure, confession of A4 was recorded -

Part-II (Exh. P-264A). Accused No.4 on the same day was produced

before C.M.M. and his statement was recorded by C.M.M. confirming

the contents of his confession. The CMM then forwarded the

confession of accused No.4 to Special Court. Accused No. 4 Jahid was

remanded to judicial custody on 30-10-2003.

48. The Officers of DCB, CID, Unit-VII received reliable

information about the involvement of charge sheeted Accused No.5


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33 conf.5.09

Batterywala and Accused No. 6 Ladduwala (present A4 & A5 at trial)

in the explosion of bomb blasts at Gateway of India and Zaveri

Bazaar. Both these accused were arrested in Ghatkopar area by the

Police Officers of Unit No. VIIon5-11-2003 and they were produced

before the Special Court on the same day. Special Court remanded

both the Accused persons to police custody till 19-11-2003 which was

further extended till 1-12-2003.

49. During interrogation on 10-11-2003, A-5 Hasan Batterywala

made a statement showing willingness to show the place where the

explosives were kept by him. The Memorandum (Exh.-297) regarding

said information was drawn. The said Accused No. 5 led IO and

panchas towards his Battery shop at Kolhapur Garage, L.B.S. Road,

Kurla (W), Mumbai and from said shop he produced 3 gelatin sticks

and RDX powder weighing 750 gms. kept in one cardboard box. The

said articles came to be seized in presence of panchas vide

panchanama (Exh. P-297A)

50. On 13-11-2003 Accused No. 6 Ladduwala, informed the IO

that he would show the place where the explosive material was kept by

him which was used while exploding bombs in Zaveri Bazar and at

Gateway of India. In consequence of above information, 2 detonators


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34 conf.5.09

came to be seized by IO from a hut situated at Gulshan Nagar slum

area near Shahad Railway Station, Shahad (E), District Thane vide

panchanama (Exh. P-291A).

51. Charge sheeted accused No. 5 Batterywala and accused No.

6 Ladduwala on 14-11-2003 expressed willingness to give their

confession and the same was apprised by Chief IO (PW-103) to Joint

C.P. (Crime) who in turn respectively directed DCP Shri Amitabh

Gupta (PW-89) and DCP Shri Ankush Shinde (PW-91) to record the

confession of respective accused persons. Accordingly DCP PW-89

recorded Part-I (Exh. P-516) the confessional statement of charge

sheeted Accused No. 5 Batterywala on 25-11-2003 and part-II of the

confession (Exh. 516A) on 27-11-2003 by following the due

procedure. On the same day, Accused No. 5 Batterywala was produced

before the Chief Metropolitan Magistrate. Similarly DCP PW-91

recorded Part-I of the confessional statement (Exh. P-532) of Accused

No. 6 Ladduwala on 25-11-2003 and part-II of the confession (Exh.

P-532A) was recorded on 27-11-2003. On the same day Accused No. 6

Ladduwala was produced before C.M.M. Both the accused persons

narrated the whole story before DCP involving themselves and other

co-accused persons in the commission of offence of bomb blasts.


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35 conf.5.09

52. The investigation of all the four offences transpired that A1

belonged to terrorist organization i.e. Lashkar-E-Toyaba. He had

committed terrorist activities in Mumbai. He came to India from

Dubai and with the help ofhis wife A3, deceased terrorist Nasir

Ahmed Ansari, A2, original A5 and A6 committed terrorist acts in

Mumbai city by exploding the bombs. In pursuance of the criminal

conspiracy hatched by A1 to A6 and wanted accused persons,

i) A2 planted timer bomb in BEST bus bearing No. MH-01-

H-8765 at Seepz on 2-12-2002 and

ii) A2 with the help of A3 planted bomb in BEST bus of Route

No. 340 on 28-7-2003.

iii) A2 on 25-8-2003 also planted bomb in motor taxi bearing

No. MH-02-R-2022 near Mumbadevi and

iv) A1 with the assistance of his wife A3 planted bomb in motor

taxi bearing No. MH-02-R- 2007 which was exploded at

Gateway of India at about 13.10 hrs. on 25-8-2003.

As a result of said three bomb explosions 54 persons

were killed and 244 persons sustained injuries and property

worth Rs. 1,60,00,000 was damaged.


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36 conf.5.09

Sanction for prosecution underPOTA

53. After receiving reports of Forensic Science Laboratory and

reports of Joint Controller of Explosives regarding the examination of

seized material; and after getting postmortem reports/Provisional

Cause of Death Certificates of the deceased persons and the injury

reports of the injured persons; and after receipt of the consent of the

Central Government for prosecution of the accused persons under the

provisions of the Explosive Substances Act, 1908 and after receipt of

the reports from various agencies regarding the assessment/valuation

of the damaged property, the Chief Investigating Officer PW-103

submitted proposal to Government of Maharashtra for according

sanction to prosecute the accused persons under the provisions of

Prevention of Terrorism Act, 2002. After having examined the material

placed along with the proposal, the Government of Maharashtra on

04-02-2004 was pleased to accord sanction to prosecute Accused Nos.

1 to 6 under Sections 3, 4, 5(1) and 20 of Prevention of Terrorism Act,

2002.

54. After receiving sanction under Section 50 of POTA, 2002

for prosecution of charge sheeted accused Nos.1 to 6, Chief IO

PW-103 submitted charge sheet on 5th February, 2004 against A1 to


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A6 (including PW-2) as stated earlier for commission of offences

under Section 120-B, r/w Sections 302, 307, 326, 324 IPC, u/s 3, 4, 5

of Explosive Substances Act, 1908, u/s 5 and 9(B) of India

Explosives Act, 1884, u/s 3, 4, 5 and20 of Prevention of Terrorist

Act, 2002, along with absconding accused Shafakat, Abid, Khalid,

Maqsud, Jahangir, Bilal, Samiulla and Rehman named in the charge

sheet. Upon filing of the said charge sheet, cognizance was taken by

the Special Court and above stated POTA Special Case No.1/2004 was

registered. As stated earlier, charge sheeted accused No.4 being

accorded pardon on the basis of prosecution application, he was

examined at the trial as PW-2. While charge sheeted accused Nos.5 &

v6 were renumbered as A4 & A5.

55. On 29-6-2004 the charge as described in detail in Exh. P-5

was framed against A1 to A5 for commission of offences under eight

different heads i.e. from head Firstly to Eighthly for offences under

Section i) 120-B of IPC, r/w 3, 4, 5(1) & 20 of POTA Act so also r/w.

Section 302, 307, 427 of IPC and Section 3 of Explosive Substances

Act, Section 9(B) of the Explosive Act, 1884 and Section 3 of

Damage to Public Property Act. ii) 3(2) of POTA Act, r/w. Section

120-B IPC. iii) 3(3) of POTA Act. iv) 120-B of IPC r/w. S. 302, 307

of IPC and S. 3(2), 3(3) of POTA, 2002 and Section 4 of Damage to


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38 conf.5.09

Public Property Act, 1984 r/w. S. 427 of IPC and S. 3 to 6 of Explosive

Substances Act, 1908 and S. 9(B) of Explosive Act, 1884. v) 302, 307,

427 r/w. S. 34 further r/w. S. 120-B of IPC, further r/w. S. 3, 4, 5 & 6

of Explosive Substances Act, 1908, and U/s. 3 of Damage to Public

Property Act, and S. 3 & 4 of Prevention of Terrorism Act. vi) 302,

307, 427, r/w. S. 120-B of IPC also u/s. 5, 9(b) of Indian Explosive Act

r/w. S. 3, 4, 5, 6 of Explosive Substances Act and r/w. S. 3 of Damage

to Public Property and U/s. 3 & 4 of POTA, 2002 (against accused

Nos.1 to 3 only) vii) 3 of Explosive Substances Act, 1908 (against

accused No.3 only) viii) 3 of Explosive Substances Act (against

accused No.5 only)

56. All the accused Nos. 1 to 5 pleaded not guilty to the charge

framed against them and claimed to be tried. The prosecution at the

trial adduced oral evidence of 103 witnesses. In addition to the oral

testimonies of the said witnesses the prosecution also relied upon the

several documents which were proved through the said witnesses or

otherwise taken on record due to consent given by the defence in

response to application under Section 294 of the Code.

57. The documents taken on record and marked exhibit are as

mentioned in paragraph nos.53 to 55 of the judgment of Trial Court


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39 conf.5.09

under consideration i.e. the documents such as i) Death Certificates, ii)

Provisional Death Certificates, iii) Postmortem Notes and iv) Inquest

panchanamas of deceased persons as well as v) the Medical

Certificates of the injured persons vi) inquest panchnamas. vii)

common panchanamas regarding seizure of blood stained clothes of

injured and deceased. viii) map of place of offence of DCB CID Cr

No. 157 of 2002, CR. No. 75 of 2003, CR No. 91 of 2003 and CR No.

86 of 2003. ix) panchanama regarding destroying of RDX.

58. As aforesaid, prosecution at the trial examined in all 103

witnesses, i.e. witnesses referred herein above and so also 28 more

witnesses i. e. PW-23, PW-25, PW-34, PW-36 and PW-64 to PW-87

on the point that their nearest relatives lost lives in the twin bomb blast,

dated 25-8-2003. Apart from the above witnesses PW-3 Rajendra

Pawar, PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj Patil and

PW-7 Ghanshyam Dubey were examined on the point of purchase of

SIM cards of Airtel bearing No. 9892451164 and 9892077831 by Nasir

and A1. PW-11 Jyotsna Chandratre was the Special Executive Officer

who held TIP of photographs of slain terrorist Nasir at Colaba Police

Station on 3-1-2004. PW-13 Pandit Bhandalkar has prepared the sketch

of the scene of offences in CR No. 91 of 2003 and in CR No. 206 of

2003. The details of remaining prosecution witnesses being correctly


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40 conf.5.09

described in detail in paragraph nos. 56 to 64 of judgment of Trial

Court under consideration and the relevant evidence qua submissions

advanced before us being dealt in the further part of the judgment the

same is not unnecessarily narrated for the sake of brevity.

59. The accused in defence have adduced defence evidence i.e.

A1 has examined himself as DW-4 and has also examined 2

witnesses i.e. (DW-5) Ex-Commissioner of Police, Mumbai, Shri

Ranjitsingh Sharma and (DW-6).Ex-Home Minister of the State Shri

Chagan Bhujbal. Similarly A5 has examined himself as DW-1 and

has examined DW-2 his son Shaikh Mohd. Ismail. A5 has examined

ACP Sadashiv Patil as DW-3 to point out that statement of PW-8

Ajmeri Mohd. Ali Shaikh was recorded by him in connection with

bomb blast incident in Mumbai dtd. 11-7-2006. Defence has also relied

upon as many as 124 documents/Exhibits.

FINDINGS OF THE TRIAL

COURT

60. After hearing both the parties and assessing the evidence

adduced at the trial, the trial Court came to the conclusion that:


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41 conf.5.09

i) A1, PW-2, deceased accused Nasir and other

wanted accused had hatched criminal conspiracy

partly at Dubai in the month of August 2002 in the

house of Nasir at Dubai and after returning to India,

A1 and Nasir along with A2 and A3 had held several

conspiracy meetings in the house of A1 at Mumbai for

chalking out detail plan for doing bomb blasts at

crowded places in Mumbai and thus conspiracy ofdoing terrorist acts in Mumbai was hatched partly in

Dubai and partly in Mumbai.

ii) sanction of the Central Govt. u/s 188 of Cr. P. C.

was not necessary for trial of the accused persons for

the offence u/s 120-B of IPC

iii) A2 was found in unauthorized possession of

hazardous explosive substances in his house at 22.40

hrs. on 31-8-2003.

iv) A2 and A3 were found in unauthorized possession

of hazardous explosive substances in their house R.

No. D-7 Salim Chawl, Chimatpada on 1-9-2003 at hrs.

v) on 1-9-2003 at 7.50 hrs. A1 was found in

unauthorised possession of hazardous explosive

substances in a room occupied by him bearing R. No.

14 Salim Chawl, Chimatpada.


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42 conf.5.09

vi) A1 to A-3 and deceased Nasir in pursuance of the

above criminal conspiracy had planted timer bomb

below the rear seat in BEST Bus of route No. 312

(336) bearing No. MH-01 H-8765 near Seepz BEST

Bus Depot, MIDC, Andheri (E), in the evening of

2-12-2002 with intent to kill maximum number of

persons travelling in the above bus and to cause loss

to the public and private properties.

vii) A1 to A3 and deceased Nasir in pursuance of the

above criminal conspiracy had planted a timer bomb

in a BEST bus of route No. 340 bearing No. MH-01 H

8246 which was exploded at about 21.10 hrs. on

28-7-2003 at Karani Lane Junction, Ghatkopar (W),

Mumbai causing the death of two persons and injury

to 60 passengers and also causing damage to public

and private property worth Rs. 16.30 lacs.

viii) A1 to A3 and deceased Nasir in pursuance of the

above criminal conspiracy, planted timer bomb in a

motor taxi bearing No. MH-02-R-2022 which was kept

waiting at the junction of Dhanji Street, Yusuf Ali

Road, in front of Sagar Juice Centre, Near

Mumbadevi Temple, Mumbai on 25-8-2003 at noon

time and the powerful bomb kept in the above taxi was

exploded at 12.40 hrs. causing the death of 36 persons

and injury to 138 persons and also caused damage to

public and private properties worth Rs. 95 lacs.


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ix) A1 to A3 and deceased Nasir in pursuance of

above criminal conspiracy, kept timer bomb in airbag

and airbag was kept in the dickey of motor taxi

bearing No. MH-02-R-2007 which was parked in

Pay & Park site opposite Hotel Taj at Gateway of

India, P. J. Ramchandani Marg, Colaba, Mumbai-400

005 on 25-8-2003 and the said bomb was exploded at13.05 hours killing 16 persons and causing injuries to

46 persons and causing huge damage to public and

private properties.

x) That valid sanction Exh. P-573 was accorded by

Government of Maharashtra u/s 50 of POTA 2002 to

prosecute the Accused persons.

The trial Court in consonance with the said findings held that

accused A1 to A3 have committed the offences as described in

commencing paragraph of the judgment and sentenced them

accordingly.

Brief Submissions of Both Sides

61. The learned APP by and large supported the judgment under

consideration and particularly finding of guilt of A1 to A3 for

commission of the offences as arrived by the trial Court and sentence


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of death and the other sentences awarded by the trial Court. The crux

of her submission, is that, barring not accepting the evidence of

certain witnesses and sanction as pointed out by her discussed at

appropriate stage, the trial Court has properly appreciated and accepted

the evidence of the prosecution witness. She further urged that

considering the nature of offences committed and the purpose behind

committing them i.e. the conspiracy hatched to commit terrorist act and

commission of terrorist act as established by the prosecution evidence

no fault can be found even with the sentence awarded. She submits that

sentence of death awarded by trial Court deserves to be confirmed and

no interference is warranted regarding the other sentence awarded to

A1 to A3. She also urged that in the event of agreement with her

submission of the evidence of particular witness was wrongly

discarded by the trial Court, then, the concerned accused whose

involvement/guilt for commission of offences in relevant incident is

established, will be also required to be held guilty for such offences.

The learned APP made elaborate submissions by taking us

meticulously through the record of the case for supporting her said

submissions. For the sake of brevity, the relevant submissions

meriting consideration and/or discussion are narrated and considered at

appropriate stage while considering the relevant evidence and/or

relevant aspect.


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62. Learned APP also made elaborate submission for allowing

the writ petition preferred by the prosecution for quashing and setting

aside the opinion/direction given by Central Review Committee and

remanding the matter back to the said committee. She also made

elaborate submission for allowing appeal preferred by the prosecution

against the order dated 18th November, 2008 passed by POTA Special

Court, holding that the prosecution against A4 and A5 is deemed to

have been withdrawn from the day the directions were given by

Central Review Committee and consequently releasing them. She

urged for quashing and setting aside the said order and sending the

matter back to the trial court for deciding the same in accordance with

the law. We shall elaborate this submission a little later.

63. Mr. Pasbola learned counsel for A3 opened the defence

arguments. At the outset, he submitted that none of the accused have

disputed the factum of bomb explosions and/or people having died or

being injured and of severe damage caused to property in and around

the place of blast. But he urged that the prosecution has failed to

establish that the explosions were caused by using a particular

chemical as claimed by the prosecution i.e. attempt to commit the blast

in BEST Buses at MIDC Seepz and blast committed at Ghatkopar by


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using bombs containing gelatin sticks and for remaining two incidents

of bomb blasts by using RDX i.e. at Zaveri Bazar and Gateway of

India.

64. He further urged that though it is the prosecution case that

conspiracy was hatched in Dubai, the probable period during which

the same was hatched has not been specified in the charges framed at

the trial. Further, the said conspiracy ought to be before December,

2002. Even the evidence about the same is too sketchy and

unbelievable i.e. in the shape of evidence of the PW-2 approver and the

evidence of PW-1 and the evidence of confession of accused and that

too confession of the co-accused. He submits that the prosecution

cannot rely on the alleged confession of approver as he was not tried

as co-accused.

65. He further urged that the incident of attempt to cause

explosion was committed on 2nd December, 2002 while the incident of

explosion had occurred on 28th July, 2003 while the remaining two

incidents of explosion had occurred on 25th of August, 2003. By

pointing out the provision of Section 219 of the Code, he urged that as

per the said provision, three offences of the same kind committed

within a period of one year can be tried together at one trial. The trial


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conducted for clubbing four incidents together, is illegal. He urged that

such trial was and in fact caused prejudice to A3. Hence, the trial

against A3 is vitiated.

66. He further urged that the charge framed at the trial is

blissfully vague. It is urged that the charge for every distinct offence as

required under the law is not framed against A3. The same has caused

prejudice to A3. Hence, it has also occasioned failure of justice.

67. He further urged that encountered accused Nasir has not

been named as a co-conspirator in the charge as framed though

principal participant. According to the learned Counsel, the evidence

regarding the death of Nasir is unbelievable. Amongst other, the SIM

card recovered near the body of Nasir is not referred to in the charge-

sheet. The evidence regarding purchase of SIM card by Nasir as well

his encounter will have to be discarded. Besides, the said fact has not

been established by the prosecution relying only on evidence of

PW-1 which is insufficient as the same is not substantiated,

corroborated by any other evidence.

68. He further urged that the prosecution evidence does not

clearly disclose as to when and how provisions of POTA was applied


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to this case. For, when A2, 1 and 3 were arrested in connection with

Ghatkopar incident, POTA was applied. Presumably, it was applied

later on. That was to circumvent the non-compliance of Section 51 r/w

32(5) of POTA. On this basis, it is argued that the alleged confessions

will have to be excluded from consideration being statements of

accused recorded while in police custody before application of POTA

provisions. He submits that there is serious dispute regarding the date

of arrest of the accused i.e. A1 to 3. According to the prosecution, it is

31st August, 2003, whereas, the defence claims the arrest on 30th

August, 2003.

69. He further submits that the defence was denied opportunity

to rebut the prosecution evidence. In that, though police officer

(Gulabrao Pole) who had allegedly recorded confession of Accused in

another case was present in Court he was not allowed to be examined

by the defence. That police officer had owned up the responsibility of

planting of bomb in the other case.

70. He further submits that the prosecution evidence itself

discloses that after recording of alleged confession and production

before the Chief Metropolitan Magistrate, the accused was sent back to

police custody. That was opposed to Section 32(5) of POTA. Further,


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the accused had partially retracted confession before the Chief

Metropolitan Magistrate, but later on completely retracted the same.

For all these reasons, the alleged confessions will have to be discarded,

inter alia, being opposed to provisions of POTA.

71. He further submits that the incriminating portion in the

alleged confessions were not put to the Accused to enable the

Accused to offer explanation. Even for that reason, the same cannot be

looked into.

72. He further urged that in the present case all the C.A. Reports,

without examining any of the Chemical Analyser were admitted in

evidence under Section 293 of Cr.P.C. The provisions of Section 293

only makes the reports contemplated under the same as admissible and

does not dispense with the proof of the same. The material stated in

the CA reports and sought to be used against A3 was not at all put to

her during her examination effected under Section 313 of Cr.P.C. He

further urged that as such, user of the same without giving her an

opportunity to explain the incriminating material from the same used

against her has resulted in causing grave prejudice to her.

73. He further urged that it was incumbent to examine the


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Sanctioning Authority who applied his mind before according the

sanction for prosecution for the offences under POTA. It was urged

that keeping in mind the dictum in the case of State (NCT of Delhi)

vrs. Navjot Sandhu alias Afsan Guru, 2005 SCC (Cri) 1715 i.e. the

defence ought to have been permitted to examine the file pertaining to

grant of sanction, which document being contemporaneous record

alone can resolve the issue of non-application of mind. He urged that

in present case such an inspection of the file pertaining to according of

sanction as well as request to examine the Sanctioning Authority was

denied to the defence. Thus, fair opportunity was not given to the

Accused to defend at the trial and the same has occasioned failure of

justice.

74. He then urged that sanction Exhibit 568 (relating to Seepz

and Ghatkopar) should be discarded as it makes no reference to the

provision in respect of which the sanction is accorded.

75. He faintly urged that the entire trial is vitiated as the Special

Judge came to be appointed after the Repeal Act came into force.

76. He also urged that there has been serious miscarriage of

justice and grave prejudice to the Accused because of unfair trial. In

that, the prosecutor was allowed to ask leading questions to the tutored

planted prosecution witnesses, inspite of repeated objections taken by


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the defence. Not only that the Trial Judge adopted an unusual

procedure of recording of entire examination in chief in question-

answer format. It is submitted that the objections taken by the defence

were not immediately answered. Inspite of ruling that the same will be

answered at the time of final judgment, no ruling has been given

thereon. It is submitted that this anamoly has crept in the proceedings

as the major evidence was recorded before two different Judges. The

trial Judge who pronounced the Judgment took over the case at the

stage of recording of Section 313 statement.

77. He urged that articles allegedly recovered from the house of

accused Nos.1 & 3 and the another owned by accused No1 are gelatin

sticks. It is the prosecution case that two blasts (at Gateway of India

and at Zaveri Bazar) were caused by means of RDX, while gelatin

was used in other two incidents. It is also case of prosecution case

that the encountered accused Nasir had procured RDX and supplied

the same. However, no investigation has been done regarding the

manner in which the gelatin sticks have been procured by the Accused

- which were admittedly easily available in the market and bearing the

mark of manufacturer Vardha. It was urged that no investigation in

this regard creates a reasonable doubt that the gelatin allegedly

recovered from the house of Accused was a planted article. This has


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caused serious prejudice to the Accused.

78. He urged that PW 103 the Chief Investigating Officer has

given the evidence on the basis of written prepared notes and not by

refreshing his memory by perusing case diary/crime report. This has

caused serious prejudice to the Accused. His entire evidence is liable to

be discarded as the same indicates that he himself has not carried out

any investigation. It was urged that as per the provisions of POTA all

the investigations are required to be carried out by Investigating

Officer of a particular rank. The evidence collected by the Officers not

authorized to investigate the offences under POTA, will be required to

be discarded as the same is in violation of the provisions of law. It was

urged that in the present case, the investigation was only supervised by

Chief Investigation Officer of the rank of ACP. That will not cure the

defect and it goes to the root of the matter.

79. It was urged that the various other deficiencies to be pointed

during the course of argument will also indicate that the defence was

not given proper opportunity and the trial was unfair. It was urged that

the same would be most relevant while considering the order of

acquittal / release passed in favour of co-accused A4 and A5. It was

urged that certain documents were called for. The same were not


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furnished to the defence. That has resulted in denial of fair opportunity

to the defence as also warranting drawing of adverse inference against

the prosecution. In the result, the benefit of doubt should be given to

the Accused and they should be acquitted.

80. Learned counsel thereafter made exhaustive submissions

with regard to four incidents in question i.e. regarding the witnesses

examined by the prosecution and so also regarding the encounter

incident and so also the aspects pertaining to the evidence of PW2

Approver, making himself as an approver by the prosecution, grant of

pardon, non recording of his statement, appointment of the Special

Judge after POTA was repealed, sanctions accorded for prosecution of

offences under Explosive Act and/or under Explosive Substances Act

etc. for submitting that the evidence adduced has not established guilt

of A3 and/or some of the evidence deserves to be excluded from

consideration.

81. Learned counsel thus urged that the guilt of A3 is based upon

very slender and unreliable evidence in the shape of her confession,

uncorroborated evidence of PW2, confession of the co-accused and

unacceptable evidence of her identification made by the witnesses who

are either planted by the prosecution and/or in the nature of chance


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witnesses. It was urged that curiously enough all the witnesses who

claim to have identified A3 or the other co-accused, have done so

because of the quarrel, bickering ensued between the Accused and the

concerned witness. It was urged that even assuming that A3 or any of

the other Accused was entrusted to plant a bomb then it is difficult to

perceive that such a person will involve himself / herself in a quarrel in

the manner alleged. It was urged that this theory propounded by the

prosecution is against the grain of probability. That itself is a

circumstance justifying the submission that the said witnesses are

unnatural witnesses and have been planted by the prosecution.

82. Learned counsel urged that A3 is entitled to be acquitted

from all charges levelled against her or at least considering the feeble

nature of evidence of her identification, she deserves to be given

benefit of doubt.

83. Mr. Khan Abdul Wahab, learned counsel for A1, at the

outset, submitted that he is adopting all submissions advanced by

learned counsel for A3 Mr. Pasbola as the same would be applicable

even in the case of A1.

84. He, however, urged with regard to the incident of alleged


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encounter on 12th September, 2003, in which death of two persons

(absconding accused Nasir and one more) is said to have occurred, the

prosecution has utterly failed to establish that the dead body of the

person was of none other than the co-conspirator Nasir. The

prosecution has rested the matter mainly upon the sole evidence of PW

1 who had lodged the said complaint.

85. It was further urged in the same context that photograph of

the said dead person who is said to be Nasir has not been shown to any

of the witnesses in the present case to establish that the said dead

person was accompanying A1 as claimed by them. It was urged that

merely showing some cards of Bank containing photograph of Nasir

would not be sufficient to establish that the person killed in the

encounter was Nasir.

86. It was further urged that the said incident having occurred

within the area of Dadar Police Station and as separate case was

registered for the same, it was necessary for the prosecution to

produce papers of the said case and/or examine the concerned

witnesses to establish that the incident as claimed by the prosecution

had in fact occurred. It was urged that the prosecution has not adduced

any evidence beyond the evidence of PW1 and producing the inquest

panchanama in the said case. Even that Panchnama has not been


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proved by adducing any independent evidence of panch witnesses.

87. It was further urged that even assuming that two sim-cards

as claimed by the prosecution were allegedly seized from the mobiles

on the person of the said deceased, still no number engrossed upon

the said sim cards has surfaced in the evidence for linking the said sim

cards which is said to have allegedly purchased by Nasir from mobile

shop. It was urged that merely sim cards purchased from the shop

having a particular number would not be sufficient to come to the

conclusion that the same were sim cards which were found on the

person of deceased for establishing the link between A1 and said

Nasir.

88. It was urged that the evidence of PW1 in paragraph 9 reveals

connection of the material allegedly found from the encountered

person, bearing the names of certain persons. It was urged that none

of the said persons have been examined to establish the link of the said

material with the said persons or for establishing identity of Nasir as

being the same person who was encountered. In the same context it

was urged that the said material reveals different names on driving

licence or the name of the owner of vehicle as Umesh Suresh Nadkarni

with address as 7.2 Old Hanuman Building, Second floor, Chuna Lane,


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Bombay-7 and the same being transferred to Mrs. Ayesha Shah Sayyad

Hanif with Ghatkopar address. It was urged that the same is the case

regarding election identity card which stands in the name of Abdul

Sayyad Rahman Ali with photograph of deceased (allegedly Nasir)

with address of Hyderabad. It was urged that all the defects have been

clearly brought out in the cross examination recorded on page no.1136.

89. It was further urged that panchanama regarding gelatin stick

being found in the house of said encountered accused has not been

produced / proved in the present case for establishing the link of the

said person encountered.

90. It was urged that the evidence of PW11 Special Executive

Officer reveals that photograph of Nasir i.e. taken from the person of

deceased was used for holding photo test identification parade. It was

urged that the evidence pertaining to the said parade reveals that stock

police panch Narayan Shetty was used as a panch witness for the said

parade. It was urged that for establishing the said fact, application was

made on behalf of the defence, the same was rejected by the Court.

That has prejudiced A1 and co-accused in establishing most relevant

facet of their defence that the prosecution has used stock police panch.

91. In the same context it was urged that the parade panchanama


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was prepared on a typewriter i.e. the typewriter which was used earlier

by SEO for typing several documents for the same police station for

which he had conducted the said parade. It was urged that even the

photograph of dummies used for the said parade has not been

produced. The entire evidence regarding the said parade is doubtful

and so also the alleged identification of the said Nasir allegedly made

by the witnesses is highly doubtful deserving no credence.

92. Learned counsel also made exhaustive submissions

regarding the arrest of A1 and so also the arrest of A2 and about the

sealing aspect and the evidence of PW103 in relation to making PW2

approver, confession etc., identification of A1.

93. In nutshell, it is the submission of learned counsel for A1

that the trial was not fair to the said accused, the evidence relied for

drawing the conclusion of his guilt is unreliable and unworthy of

credence or against the grain of probability. Rather he has been made

a scapegoat and his guilt is not established by prosecution evidence and

he deserves to be acquitted or at least deserves to be given benefit of

doubt.

94. Though learned counsel for A2 submitted written


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submissions, he was asked to make oral submissions at least to

highlight important points. He chose to make limited submissions

pertaining to the incident or the circumstances showing involvement of

the A2 for which he is convicted. The same are dealt with at

appropriate place while discussing the prosecution evidence pertaining

to the relevant topics in light of the rival submissions about the same.

Now with regard to the remaining submissions, he has also made the

similar grievance like counsel for A1 and A3 of having not received a

fair trial by pointing out certain defects regarding the charge framed

and / or the manner in which the trial was conducted i.e. by allowing

putting leading questions and / or objection raised during the course of

trial being not decided properly. It will not be out of place to mention

that during the oral arguments on behalf of A2, learned counsel did

not point out as to which objection raised at the instance of A2 during

the trial requires consideration.

95. It was urged that charge framed against A2 at head fifthly for

explosion occurred at Zaveri Bazar and for explosion occurred at head

sixthly Gateway of India were vague to give a fair idea of the

prosecution

Mumbai Gateway of India Bomb Blast Case-POTA Case Judgement Bombay High Court

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