Sanjay Dutt

vs.

The State of Maharashtra

Submitted To: Submitted By:

Amritpal Maam Kashish Bansal
271/14
Bcom.LL.B(hons)
 6th Semester
Introduction

Mr. Harish Salve, Mr. Surendra Singh and Mr. B.H. Marlapalle learned senior
counsel appeared for A-117(Sanjay Dutt), A-118 (Yusuf Nulwalla), A-124 (Kersi
Adajania) respectively. Whereas Mr. Raval, learned ASG duly assisted by Mr.
Satyakam, learned counsel appeared for the respondent-CBI.

The abovesaid appeals are directed against the final judgment and order of
conviction and sentence dated 28.11.2006 and 31.07.2007 respectively by the
Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay
in B.B.C.

Facts of the Case

Before adverting to the detailed analysis of the evidence and the contentions urged, the facts are
as under:

Babri Masjid at Ayodhya was demolished on 06.12.1992. After its demolition, violence broke
out throughout the country. Tiger Memon and Dawood Ibrahim, a resident of Dubai, in order
to take revenge of the said demolition, formulated a conspiracy to commit terrorist act in the
city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and
ammunitions from abroad. Tiger Memon, in association with his men, particularly, the
accused persons, received those arms and ammunitions through sea-coasts of Bombay. The
evidence on record establishes that the said consignment was a result of a conspiracy
between Dawood Ibrahim Kaskar, Mohammed Dosa and Tiger Memon.
 On 15.01.1993, Samir Hingora (A-53), Hanif Kandawala (A-40), Ibrahim Musa
Chauhan@Baba (A-41) and Abu Salem (A-139) - then absconding, came to the residence of
the appellant (A-117) at Pali Hill, Bandra, Bombay and told him that they would deliver the
weapons tomorrow i.e., on 16.01.1993. On 16.01.1993, A-53, A-41 and A-139 delivered 3
AK-56 Rifles and 250 rounds of ammunitions and some hand grenades at the residence of A-
117. On 18.01.1993, out of the above said 3 AK-56 Rifles and ammunitions, 2 rifles and
some ammunition were taken away by co-accused persons including one Mansoor Ahmed.

On 12.03.1993, bomb explosions took place at various places in Bombay causing death of
257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores. On
18.04.1993, A-89 was taken in police custody whereas Sanjay Dutt was arrested from the
Mumbai International Airport on 19.04.1993 upon his arrival from Mauritius. All the above
facts formed a part of the complaint culminated into the registration of a Local Act Case
(LAC) in respect of the above said 5 persons, namely, A-117, A-118, A-124, A-125 and A-
120. The sequence of events after the arrest of Sanjay Dutt (A-117) till the recovery of pistol
from A-120 formed part of an unbroken chain inseparably connected with each other.

On 19.06.1994, Sanjay Dutt applied for bail before the Designated Court. By order dated
04.07.1994, the Designated Court dismissed the said application. Against the said order, he
filed a special leave petition before this Court and prayed for grant of bail. The matter was
then referred to the Constitution Bench on the question of interpretation and construction of
the provisions of TADA, namely, Section 5 as well as Section 20. After the reference was
answered, the matter was placed before the regular Bench for consideration of the bail
application. By order dated 23.09.1994, this Court rejected the application for bail filed by
Sanjay Dutt.

By order dated 28.11.2006 and 31.07.2007, the appellants (A-117, A-118 and A-124) were
convicted and sentenced by the Designated Court as mentioned earlier.
 Charges

A common charge of conspiracy was framed against all the co-conspirators including the
appellants and that on 12.03.1993 were successful in causing bomb explosions at Stock
Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu,
Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol
Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar
Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257
persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to
cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay
and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under
Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii),
3(3), (4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435,
436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections
25 (1- A), (1-B)(a) of the Arms Act, 1959,

In addition to the above-said principal charge of conspiracy, the appellants were also charged on
other counts which are as under:
Sanjay Dutt (A-117): The appellant, in pursuance of the aforesaid criminal conspiracy
and during the period from January, 1993 to April, 1993, agreed to keep in his possession
and acquired 3 AK-56 rifles and its ammunition, one 9mm pistol and its cartridges and
hand grenades, unauthorisedly, which were part of the consignments smuggled into the
country by Dawood Ibrahim Kaskar and his associates knowingly and intentionally that
these were smuggled into the country for the purpose of committing terrorists acts and
that he thereby committed an offence punishable under Section 3(3) of TADA.

The appellant, by doing the aforesaid act, unauthorisedly, in Greater Bombay which is
specified as a Notified Area under Clause (f) of Sub Section (1) of Section 2 of TADA
and thereby committed an offence punishable under Section 5 of TADA. The appellant
possessed the above mentioned arms and ammunitions with intent to aid terrorists and
contravened the provisions of the Arms Act, 1959 and the Arms Rules, 1962, the
 Explosive Substances Act, 1908 and the Explosives Rules, 2008 and thereby committed
an offence punishable under Section 6 of TADA. The appellant, by doing the aforesaid
act, committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A)
(1-B) (a) of the Arms Act, 1959.

Yusuf Mohsin Nulwalla (A-118): The appellant acquired AK-56 Rifles and its carridges
and one 9mm pistol and its cartridges which were smuggled into the country for
committing terrorist acts and destroyed the said AK-56 Rifle with the assistance of Kersi
Adajania (A-124) and entrusted him the 9mm pistol and its cartridges for safe custody
and thereby committed an offence punishable under Section 3(3) of TADA. The appellant
acquired the abovementioned arms and ammunitions from the house of Sanjay Dutt (A-
117) and possessed the same, unauthorisedly, in a notified area of Greater Bombay and
thereby committed an offence punishable under Section 5 of TADA.

The appellant acquired and possessed the abovementioned arms and ammunitions and
failed to give information to Police/Magistrate with intent to aid terrorists and thereby
committed an offence punishable under Section 6 of TADA. The appellant, by doing the
aforesaid act, committed an offence punishable under Sections 3 and 7 read with Sections
25(1-A), (1-B) (a) of the Arms Act, 1959. The appellant caused destruction of the
abovementioned arms and ammunitions with an intention to screen him and other co-
conspirators from legal punishment and thereby committed an offence punishable under
Section 201 of the IPC.

Kersi Adajania (A-124): The appellant aided and abetted Yusuf Nulwalla (A-118) in
destroying AK-56 rifle and disposing of 9mm pistol and its cartridges which were
smuggled into the country for committing terrorist acts and thereby committed an offence
punishable under Section 3(3) of TADA. In the first week of April, 1993, the appellant
had in his possession one AK-56 rifle, one 9 mm pistol and its rounds in a notified area of
Bombay and thereby committed an offence punishable under Section 5 of TADA.

The appellant possessed the said arms and ammunitions with an intention to aid terrorists
and thereby committed an offence punishable under Section 6 of TADA. The appellant,
by possessing the abovementioned arms and ammunitions, unauthorisedly, committed an
offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the
 Arms Act, 1959. The appellant caused destruction of the abovementioned AK-56 rifle,
9mm pistol and its ammunitions which were smuggled into the country for commission
of terrorist acts with the intention of screening himself and the other co-conspirators from
legal punishment and thereby committed an offence punishable under Section 201 of the
IPC.

Submissions made by Mr. Harish Salve, learned senior counsel for the
appellant (A-117)

i. Mr. Harish Salve, learned senior counsel for A-117, at the foremost, submitted that reliance on
the confessional statement made by A-117 is impermissible. He pointed out that the contention
that the judgments of this Court have held that the prosecution can rely on the confession of an
accused made before a police officer in every case where the accused is charged of a TADA
offence, as long as the trial is joint, has been misconceived. He also pointed out that if the
language of the provisions led to a situation that a confession to the police becomes admissible
irrespective of the fate of the TADA charge, then it would lead to invidious discrimination
between the accused, who were charged under TADA along with other offences and those who
were accused only of non-TADA offences.

ii. Mr. Harish Salve further pointed out that in Prakash Kumar @ Prakash Bhutto vs. State of
Gujarat1, it was contended before the Court that rigours of Section 12 are discriminatory and
attract the wrath of Articles 14 and 21 of the Constitution as it empowers the Designated Court
to try and convict the accused for the offences committed under any other law along with the
offences committed under TADA thereby depriving the rights available to the accused under
the ordinary law. This contention was rejected by holding that Section 12 is to take care of
the offences connected with or incidental to terrorist activities. The other offences being
connected and inextricably intertwined with the terrorist act.

iii. According to him, only where the transactions in respect of which an accused is convicted are
interrelated inextricably with the transactions which fall under TADA, then Section 12 would

1 (2005) 2 SCC 409

 enable the prosecution to rely upon the confession of the accused made to a police officer. He
further pointed out that it would be a travesty to apply this principle in the present case. By
poining out the confession of the appellant (A-117), learned senior counsel contended that even
if we believe the statements made, it would simply establish a case of violation of the Arms
Act, there is no suggestion of any terrorist act. On the contrary, the act was the resultant of the
personal as well as the security need of the family of the appellant. He further contended that
judicial notice must be taken of the state of affairs in Bombay during the post Babri Masjid
demolition period, particularly, in January, 1993. It is further pointed out that the Legislature
did not intend to cover such persons ever in a law dealing with terrorism. The victims of
terrorism of a kind cannot and should not be treated at par with perpetrators.

iv. Learned senior counsel also pointed out that the prosecution has not appealed the findings of the
Designated Court and the alleged confession which suggested that the appellant (A-117) was in
conversation with Anees is, in fact, unbelievable. One significant reason for the same is that it
does not explain as to how Samir could have known that the appellant was in conversation with
someone on a landline telephone which was inside his house. This attempt of the prosecution to
unnecessarily create prejudice against the appellant (A-117) is baseless and, therefore, merits
summary rejection. The judgment of this Court in Sanjay Dutts case dealt with a pure
interpretation of Section 5 of TADA. It clearly lays down that the possession of a weapon is not
per se a TADA offence. Section 5 mearly raises a presumption that a person, who is in
possession of unauthorized arms or ammunitions of the specified variety, would be liable to be
punished under TADA. According to him, this Court, in fact, read down the plain language of
Section 5 to make it applicable only as a presumptive rule of evidence. This issue is no longer
open because it has been conclusively found that the alleged acquisition of the weapon had
absolutely nothing to do with any of the alleged terrorist activities of the other accused in the
conspiracy. Learned senior counsel for the appellant further contended that the State has not
filed an appeal in the matter, hence, stands concluded.

v. In addition to the above arguments, Mr. Surendra Singh, learned senior counsel for A-118
contended that everything was manufactured at the Crime Branch Police Station. He further
contended that even if A-118 was having possession of AK 56 rifle, memorandum for the same
was not signed by him and Sections 12 and 15 of TADA have no application in his case. He
 further submitted that his confession is hit by Section 25 of the Evidence Act, 1872 and his
alleged statement is compelled one which is hit by Article 21 of the Constitution.

vi. Similar to the contentions of Mr. Salve and Mr. Singh, Mr. B.H. Marlapalle, learned senior
counsel for A-124 also contended that there was no constructive possession of any weapon and
A-124 was not having any knowledge about it. He also contended that he was charged only
under the Arms act and IPC which has nothing to do with TADA and the offence against him, if
any, ought to have been referred to the normal criminal court and for that reason, the
confession recorded under TADA ought to have been erased. He also very much relied on the
decisions of this Court in Sanjay Dutt (supra), Prakash Kumar (supra) and Mohd. Amin vs.
CBI. 2

Law relating to Confessions under TADA (observations)

It is contended on behalf of the appellants that their confessional statements, and the confessional
statements of the co-accused relied upon by the prosecution against them, are confessions
recorded by a police officer, and it is hence not proper to base the conviction on the basis of the
said confessions under Section 15 of TADA.

In Jayawant Dattatray Suryarao vs. State of Maharashtra 3, this Court considered in detail the
evidentiary value and admissibility of a confessional statement recorded under Section 15 of
TADA and held that it is settled legal position that a confessional statement recorded by a police
officer is in fact, substantive evidence, and that the same can be relied upon in the trial of such
person or of a co-accused, an abettor or a conspirator, so long as the requirements of Section 15
and of the TADA rules are complied with. It was further held by this Court, that minor
irregularities do not make the confessional statement inadmissible as substantive evidence.

In Mohmed Amin vs. Central Bureau of Investigation4, it was observed: 28. In Devender Pal
Singh case majority of three-Judge Bench made a reference to Gurdeep Singh case and Nalini

2 (2008) 15 SCC 49

3 (2001) 10 SCC 109

case and held (at SCC pp. 261-62, para 33) that whenever an accused challenges the voluntary
character of his confession recorded under Section 15(1) of the Act, the initial burden is on the
prosecution to prove that all the conditions specified in that section read with Rule 15 of the
Rules have been complied with and once that is done, it is for the accused to show and satisfy the
court that the confession was not made voluntarily. The Court further held that the confession of
an accused can be relied upon for the purpose of conviction and no further corroboration is
necessary if it relates to the accused himself. However, as a matter of prudence the court may
look for some corroboration if confession is to be used against a co-accused though that will be
again within the sphere of appraisal of evidence.

It is clear that a confessional statement duly recorded by a Police Officer is a substantive piece of
evidence and the 58 Page 59 same can be relied upon in the trial of such person or of the co-
accused, abettor or conspirator if the requirements of Section 15 of TADA, and the rules framed
thereunder are complied with. The police officer, before recording the confession, has to observe
the requirement of Section 15(2) of TADA. A voluntary and truthful confessional statement
recorded under Section 15 of TADA requires no corroboration. However, as a matter of
prudence, the court may look for some corroboration if confession is to be used against co-
accused. It is made clear that whether such confession requires corroboration or not is a matter
for the court to consider such confession on the facts and circumstances of each case. If the
confession made by an accused is voluntary and true, it is admissible against coaccused as a
substantive piece of evidence and minor and curable irregularities in recording of confession,
such as omission in obtaining the certificate of the competent officer with respect to the
confession do not affect the admissibility of the said evidence.

Conviction and Sentence:

1. Sanjay Dutt (A-117)

On April 26, 1993, he admitted to the charges in his confession. But later retracted the
confession. A TADA court had later sentenced 20 people to life imprisonment and 46 others,
including Sanjay Dutt were given varying terms of imprisonment.

4 (2008) 15 SCC 49
On May 3, 1993, he was released on bail by the Bombay High Court. On July 4, 1994, Trial
court canceled his bail and he was arrested again. On October 16, 1995, after spending nearly 16
months in jail, he again got bail on hearing a letter written by him to the Chief Justice from jail.
The letter was converted into a petition.

On November 28, 2006, TADA court in Mumbai acquitted him of charges of conspiracy in the
1993 serial blasts framed under TADA Act but convicted him of the lesser crime of possessing
arms.

A-117 has been convicted for the offence punishable under Sections 3 and 7 read with Sections
25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 6 years along with a fine
of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. However, the
appellant was not found guilty of all other offences for which he was charged and, accordingly,
acquitted for all the said offences.

Press Council of India Chairman, Justice Markandey Katju even sent a written appeal to the
President of India seeking pardon for Sanjay Dutt. The problem with Justice Katjus appeal is
that it was basically an emotional plea. Coming from him, a former judge of the Supreme Court,
it is expected that beyond sentiments, the appeal should had also been legally sound.

No one is above law. The Supreme Court found him guilty and therefore, his sentence is
justified. Sanjay Dutt is actually a very lucky man. He escaped the stigma of being punished
under a terror law and the TADA Court Judge even said he was not a terrorist.

2. Yusuf Mohsin Nulwalla (A-118)

A-118 has been convicted for the offence punishable under Sections 3 and 7 read with Sections
25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to RI for 5 years along with a fine of Rs.
25,000/-, in default, to further undergo RI for a period of 6 months.

The appellant has been further convicted for the offence punishable under Section 201 of IPC
and sentenced to suffer RI for 2 years. However, the aforesaid accused being found not guilty of
all other offences for which he was charged at trial.

3. Kersi Bapuji Adajania (A-124)

A-124 has been convicted for the offence punishable under Sections 3 and 7 read with Sections
25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 2 years alongwith a fine
of Rs. 25,000/-, in default, to suffer further RI for a period of 6 months.

The appellant has been further convicted for the offence punishable under Section 201 of IPC
mentioned at head sixthly and sentenced to suffer RI for 2 years. However, the aforesaid accused
also being not found guilty of all other offences for which he was charged at trial.