IN THE DESIGNATED COURT FOR GREATER BOMBAY

M. A. No. 118 of 1994 and
B. A. No.31 of 1994 in
BBC No. 1 of 1993

Sanjay Dutt S/o Sunil Dutt - Petitioner/Applicant

versus

The State of Maharashtra through D. C. B. C. I. D. Bombay - Respondents

M/s Ujwal Nikam with J. R. Madon and K. S. Shete, Special pp for the State

M/s Natarajan with C. S. Sharma, Special PP for CBI, STF.

M/s. Shanti Bhushan, Sr. Advocate with C. D. Wadhwa, Advocate for the Applicant.

Court: Shri J. N. Patel, Designated court for Greater Bombay.

Dated: 4^th July, 1994

INTRODUCTION

Date: 8. 7. 1994

The Special Designated TADA Judge J.N. Patel delivered a long awaited order on a warm afternoon of Monday the 4th July, 1994 at Bombay. The order shook the whole nation. The order was a relief to millions of law abiding ordinary citizens of the country. The order gave a ray of hope to millions of the people that rule of law still prevails in this country. Hon'ble Judge had rejected the bail application of accused Shri Sanjay Dutt saying that the material brought before him suggested that the accused entered into a terrorist conspiracy and the Hon'ble Judge remanded him to Judicial Custody, till the completion of the trial. The order of the Hon'ble Judge was a logical conclusion expected by a majority of people, but they had a fear that the opposite would happen. This fear of people was not because they felt accused was innocent or evidence was inadequate or the limbs of the law were inefficient, but because the whole system was corrupt. The law books are not enough or by themselves adequate to deliver the justice. It is the human agency and the wisdom of a man and only his wisdom can give justice. People had lost faith that people with wisdom rule this country. The massive corruption and evident nexus of gundas, politicians and bureaucrats was the order of the day and that wisdom to survive was unthinkable. It was foolish, impractical and only a mad man's illusion. The order of Hon'ble Judge shook the society because something unbelievable was happening. His Order undoubtedly has restored belief and faith that rule of law exists in this country. It has sent a signal that nobody is above law. Justice cannot be marred by fraudulent logic and money cannot purchase everything in the society. Misinformation and disinformation are powerful weapons in the hands of uncultured rich and pseudo intellectuals in the Society. There are certain things that we should never forget that, Mr. Shanti Bhushan ex-law minister of this country, who had taken an oath that he will safeguard the rule of law and interest of this country, took the brief of accused Sanjay Dutt who is accused of association with conspirators who wanted to commit terrorist acts in this country with active assistance of ISI agency of Pakistan. We have an ex-defence minister (who is a present Chief Minister of Maharashtra Mr. Sharad Pawar) who in his defence plane carried two absconded criminals "wanted" the JJ shoot out case. We have actors and actresses, producers & financiers of film industry who shamelessly support an associate of conspirators and are ready to call him innocent and patriot. Time has come to think seriously as to how can we tolerate and continue to be governed by such people at the helm of the affairs? Can we survive as a nation with such people as our leaders? It is time to come out of our stupor and fight with these agencies with all our might and strength dissolving all our political, religious and social differences. We cannot take chance and always wait for wisdom to prevail. We may not be always lucky to have a Judge like Hon'ble J. N. Patel. It is the collective wisdom of the people of this nation which should ultimately triumph.

It is with this honest intention that we are making this 55 page order of Hon'ble Judge available to common man of this country. He should never fall prey to misinformation. We should read every line of this order so that we will come to know the documents and evidences which compelled Hon'ble Judge to come to the conclusion of this order.

We lodged a strong protect for the double standards practised by police at Thane on the occasion of shameless support demonstrations by film actors, actresses, producers and financiers to accused Sanjay Dutt on July Sixth 1994. A copy of that letter is enclosed here for wider readership along with letter sent to the Superintendent of Thane Central Jail which refused to accept for reasons best known to him

Dr. V.V. Bedekar

THANE400602.

ORAL ORDER:

1. This is an application for bail by accused Sanjay Dutt s/o. Sunil Dutt who has been arrested on 19th April, 1993 in C. R. No. 70/93 of DCB CID and LAC No. 21 of 1993 of DCB CID and the police has filed a common charge sheet which case is registered as Bomb Blast Case No. 1 of 1993.

2. The Accused has earlier filed an application for discharge/bail which came to be registered as Miscellaneous application No. 118 of 1994 on 29th March, 1994 but subsequently by Miscellaneous Application No. 208 of 1994, the accused prayed that his application may be only treated as application for bail and has not pressed for discharge and / or transfer of his case under Section 18 of the TADA (P) Act, 1987 and thereafter filed Bail Application No. 31 of 1994. By this order, the Court is considering both the application filed by the accused i.e. Miscellaneous Application No. 118 of 1994 and Bail Application No. 31 of 1994 which stand disposed off by this order.

3. The Prosecution case against the applicant accused in brief is as under:

The prime conspirators namely Dawood Hassan S/o. Ibrahim Kaskar generally known as Dawood Ibrahim, Ibrahim @ Mushtaq S/o. Abdul Razak Memon known as Tiger Memon and Mohmed Ahmed Umar Dosa (absconding and declared as proclaimed offenders) hatched a conspiracy in the month of December, 1992 and thereafter both within and outside India to commit terrorist acts and in furtherance of the object, the conspirators smuggled firearms, ammunition, detonators, handgrenades and RDX into India, organised training camps in Pakistan to impart training to Indian Muslim youths in handling arms, ammunition and explosives for the purpose of committing terrorist acts with the active assistance of ISI agency of Pakistan.

4. In pursuance of the conspiracy, the accused persons and their associates were able to cause serial bomb blasts in the city of Bombay and its suburbs with an intention to terrorise people in general and to overawe the Government and to adversely affect the harmony between the Hindus and Muslims.

5. Accused Ibrahim @ Mushtaq @ Tiger Memon at the instance of the accused Dawood Ibrahim and Anees Ibrahim Kaskar called Dawood Mohmed Phanasmiys @ Dawood Taklya, Abdul Kadar Chirovattam, accused Aziz Ahmed Mohmed Shaikh, Ahmed Shah Khan @ Salim Khan S/o. Mubarak Khan @ Salim Dhurani, absconding accused Yakub Abdul Razak Memon, Ayub Abdul Razak Memon, Taher Taklya and Mehmod Ahmed Umar Dosa to Dubai between December, 1992 to January, 1993 for chalking out plans with an intention to achieve the objects of the general conspiracy referred to above and accordingly the abovenamed accused persons went to Dubai where details of the said conspiracy were meticulously worked out. It has further transpired that in the said conspirational meeting held in Dubai, some Pakistanis also took active part in the deliberations.

6. That in pursuance of the said general conspiracy referred to above, accused Dawood Ibrahim Kaskar, accused Ibrahim @ Tiger Memon, accused Mohmed Ahmed Dosa, accused Anees Ibrahim Kaskar, accused Ayub Abdul Razzak Memon and accused Yakub Abdul Razzak Memon had planned to train saboteurs abroad in groups from different parts of India in handling weapons and explosives. Evidence has come on record to show that the above accused had also planned to indulge in similar acts of sabotage in different parts of India such as Bangalore, Madras, Calcutta, Delhi, Surat and Ahmedabad.

7. In pursuance of the conspiracy referred to above, the first landing of firearms, ammunition and hand grenades took place at the coast of village Dighi, Tal, Mhasla, Dist: Raigad on 9.1.1993. The accused Mohmed Ahmed Dosa organised the landing of such contraband with the help of his landing agents Uttam Potdar and Mohmed Kasam Jalpuria @ Mechanic Chacha and the the other two landings took place at Shekadi Bunder, Tal : Shrivardhan, Dist : Raigad on 3^rd and 7^th February, 1993 which was arranged by Mushtaq @ Ibrahim @ Tiger Memon and others. It is the prosecution case that these firearms, ammunition and explosives like handgrenades, RDX, detonators and explosives were distributed for storage/safe keeping with the purpose of using them for committing terrorist acts, to various persons. It is alleged that the following accused namely Ibrahim Kaskar, Abu Salim Abdul Kayum Ansari Salim Tonk, Samir, Samir Ahmed Hingora @ Hanif Yusuf Kadawala, Manzoor Ahmed Quereshi, Yakub Abdul Razzak Memon and Ibrahim Mushtaq @ Tiger Memon have actively participated in distribution and safe keeping of arms ammunition and explosives alongwith the other accused persons.

8. It is the prosecution case that the applicant accused Sanjay Dutt was in possession of 3 A. K. 56 rifles, its ammunition and handgrenades un-authorisedly in notified area having procured the same from the main conspirator i.e. Anees Ibrahim Kaskar which was delivered to him through Salim (proclaimed offender), Ibrahim Musa Chauhan @ Baba Chauhan, Samir Ahmed Hingora and Hanif Yusuf Kadawala and has knowingly rendered assistance to the terrorists by storing part of the consignments of arms, ammunition and explosives such as A.K. 56 rifles, its ammunition and handgrenades at his residence in contravention of the Arms Act, Explosives Act and explosive Substances Act with an intention to aid terrorists and thereby, committed offences under section 3(3), 5 and 6 of the TADA (P) Act, 1987 in addition to offences under the Arms Act for which the accused has been arrested and prosecuted in this case.

4. Mr. Shanti Bhushan, Learned Sr. Advocate for the Applicant Accused submitted that the applicant came to be arrested on 19.4.1993 and by order dated 5.5.1993 in Criminal writ Petition No. 574 of 1993, High Court released the applicant accused on interim bail which was continued by order dated 23^rd September, 1993 by the Hon'ble High Court. Mr. Shanti Bhushan submitted that during the period the Applicant accused was on bail there has been not a single instant where the applicant accused has abused his bail in any manner either by absconding or tampering with the prosecution case. Mr. Shanti Bhushan submitted that the applicant accused has attended the Court regularly and even has cut short his shooting schedules for the said purpose.

4. Mr.Shanti Bhushan submitted that in his Bail Application No. 31 of 1994, the applicant accused has given particulars of his engagement and social and welfare activities which the accused has carried on while on bail and this can be found in annexures Exs. E and F to the Bail Application.

5. Mr. Shanti Bhushan submitted that there are only two things which are required to be considered for the purpose of granting bail to an accused in a case i.e. his availability at the time of trial and the accused does not abuse his liberty while on bail. According to Mr. Shanti Bhushan during the period the applicant accused was on bail, he has strictly adhered these two conditions by remaining present on each and every date of hearing and that there are no allegations that the applicant accused has mis-used the bail in any manner whatsoever. Therefore according to Mr. Shanti Bhushan, cancellation of bail granted to the applicant accused by the Hon'ble High Court is not warranted. Mr. Shanti Bhushan submitted that the principle on which this court released on bail one Sultane Rome and Mansoor Ahmed Quereshi should be also applied in the case of the applicant accused. Mr. Shanti Bhushan pointed out to this Court the order passed by this Court in B. A. No. 4 of 1993 filed by Sulthane Rome, on 3.12.1993 and Bail Application No. 16 of 94 filed by Mansoor Ahmed Qureshi decided on 17.3.1994. Mr. Shanti Bhushan also drew the attention of this Court to the order of the Hon'ble Supreme Court releasing one of the co-accused S. N. Thapa on bail and emphasised that while taking into consideration the material placed before the Court, the Court should only look into the evidence which is legally admissible.

6. Mr.Shanti Bhushan submitted that against the applicant accused Sanjay Dutt, the only material gathered by the investigating agency is in the form of confession of the accused himself and that of the co-accused Samir Ahmed Hingora, Hanif Kadawala, Ibrahim Moosa Chauhan @ Baba Chauhan, Yusuf Mullwala, and Kersi Bapuji Adajenia. As regards, confessions of co-accused, Mr. Shanti Bhushan submitted that confessions of co-accused is not only a very weak type of evidence but cannot be considered as evidence as defined in Section 3 of evidence Act and cited the following authorities in support of his contention :

1. Bhuboni Sahu vs. The King reported in AIR (36) 1949 Privy Council 257, wherein it is held as under:

   "Sir Valentine Holmes did not rely strongly upon these pieces of alleged corroboration. He concentrated his argument mainly on the contention that the High Court was wrong in not accepting the confession of Trinath as sufficient corroboration of the evidence of the approver. This involves consideration of position of the confession of a co-accused under Indian law. Section 30, Evidence Act, enacts:

"When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons if proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

"This section was introduced for the first time' in the Evidence Act of 1872 and marks a departure from the Common Law of England. It will be noticed that the section applies to confessions and not to statements which do not admit the guilt of the confessing party. In the present case the Courts in India appreciated this, and ruled out the statements made by certain of the accused which were self exculpatory in character. The statement of Trinath was, however, a confession. Section 30 seems to be based on the view that an admission by an accused person of his own quilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in S.3 Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30 however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case. It can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely the confession of a co-accused can be used only in support of the other evidence and cannot be made the foundation of a conviction, is correct.

13. Mr. Shanti Bhushan submitted that this Judgement of the Privy Council was also considered in the case of Haricharan Kurmi Vs. State of Bihar which is reported in AIR 1964 Supreme Court 1184 and relied upon paragraphs 11 and 12 of the said Judgement which reads as under:.

"The question about the part which a confession made by a co-accused person can play in a criminal trial, has to be determined in the light of the provisions of Section 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession. The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicate the maker, it is not likely that the maker would implicate himself untruly, and so, S.30 provides that such a confession may be taken into consideration even against a co-accused who is being tried alongwith the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence, criminal Courts generally require some corroboration to the confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When Section 30 provides that the confession of a co-accused may be taken in to consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S.30 is not evidence under Section 3 of the Act. Section 3 defines "evidence" as meaning and including

(1) All statement which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry : such statement are called oral evidence ;

(2) all documents produced for the inspection of the Court ;

(IIa) Such documents are called documentary evidence.

Technically construed, this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the Court permits or requires to be made before it; and clearly a confession made by an accused person is not such a statement; it is not made or permitted to be made before the . Court that tries the criminal case. Part (2) of the definition refers to documents produced for the , inspection of the Court; and a confession cannot be said to fall even under this part. Even so, S. 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person ; that is to say, though such a confession may not be evidence as strictly defined by S. 30 of the Act, it is an element which may be taken into consideration by the Criminal Court and in that sense, it may be described as evidence in a non-technical way. But it is significant that likes other evidence which is produced before the Court, it is not obligatory on the Court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession into account.

(12) As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case, where the prosecution relies upon the confession of the accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty ILR 38 Col. 550 to p. 588 a confession Can only be used to "lend assurance to other evidence against a co-accused." In Periyaswami Moopan vs. Emperor ILR 54 Mad 75 at p. 77 : (AIR 1931 Mad 177 at p. 78) Reily J Observed that the provision of S. 30 goes not further than this,"where there is evidence against the co-accused sufficient, if believed , to support his conviction then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. The King 76 Ind App 147 at p. 155: (AIR 1949 PC 257 at p.260) the Privy Council has expressed the same view, Sir John Beaumount who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence."

It would be noticed that as a result or the provisions contained in section 30, the confession has no doubt to be regarded as amounting to evidence in a general way because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus though confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act. The result is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated is the effect of the provisions contained in section 30. The same view has been expressed by this Court in Kashmira Singh vs. State of Madhya Pradesh. 1952 SCR 526 : (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sah Sahu's case 761nd App. 147 (AIR 1949 PC 257) has been cited with approval."

14. Mr. Shanti Bhushan submitted that the Bombay High Court in the case of Gopal Govind Chogale v. The Asst. Collector of Central Excise reported in 1985 (2) Bom. C. R. 499 has held as under:

"The confessional statement of the co-accused against the accused can hardly be the foundation even for the purpose of framing of the charges as the evidentiary value of such a confessional statement of the co-accused under section 30 of the Evidence Act is very much limited, in the first instance as it is being of a weak type of evidence ; secondly it cannot be the foundation and the basis even on a confession and thirdly a point of time and its user has got to be postponed only after the Court comes to a conclusion dehors of such a confession on the basis of other evidence of the prosecution in favour of the guilt of the accused and lastly the uses of such a statement even at that stage is only for a limited purpose so as to lead additional assurance to the conclusion already reached by the Court and thus to get tilting of the balance morally. Nonetheless, basically and primarily such a statement cannot be used at all. Therefore, no charge can be framed against the accused only on the basis of the so called confessional statement of co-accused."

15. Mr. Shanti Bhushan therefore submitted that the Court should ignore the confessions of the co-accused in the case for considering the bail application of the applicant accused.

16. In respect of confession of the accused himself which is not retraced or challenged, Mr. Shanti Bhushan submitted that court will have to take into consideration the confession of the applicant accused as a whole. Mr. Shanti Bhushan submitted that the court will have to keep in mind the situation prevailing in the city of Bombay at the time of riots in December, January, 1992. In his confession, applicant accused has admitted of having procured 3 A.K.56 rifles and its ammunition but having returned 2 A.K. 56 rifles and retained one with some ammunition in the background that the applicant accused and his family members were repeatedly threatened or dire consequences and the applicant accused apprehended attack on his residence by mob which could be only contained and defended by automatic weapon. Mr. Shanti Bhushan submitted that he himself had undergone the experience of mob frenzy at Delhi with the outbreak of riots in 1984 where he alongwith some eminent citizens rendered services and rescued several Sikh families. Mr. Shanti Bhushan therefore submitted that in these circumstances, if the accused has procured sophisticated firearm, it cannot be said that it was with an intention to commit terrorist acts, but was to defend himself and his family members. Mr. Shanti Bhushan submitted that A.K. 56 rifles are in use by the police and para military forces for protection of V. I. P.s and father of accused Mr. Sunil Dutt is a V.I.P. Thus according to Mr. Shanti Bhushan the Court should take into consideration not only the inculpatory part of the confession of the accused but also the exculpatory part unless the exculpatory part of the confession is found to be inherently improbable. Mr.Shanti Bhushan submitted that exculpatory part of confession of the accused Sanjay Dutt is consistent with his plea of self defence and that his destruction of the weapon was in panic and cannot be called sinister and it was quite natural as even innocent people in a given situation would try to evade the dragnet of law. Mr. Shanti Bhushan has relied on the case of Nishi Kant Jha vs. State of Bihar reported in AIR 1969 Supreme Court 422 particularly paragraphs 20 and 21 of the said Judgement in support of his contention which read as under

"20. In the Allahabad case, the question referred to the full Bench was, whether the Court could accept the inculpatory part of a confession which commended belief and reject the exculpatory part which was inherently incredible on reference to a large number of authorities actually established no more than this that(a) where there is other evidence a portion of the confession may in the light of that evidence be rejected while acting upon the remainder with the other evidence and (b) where there is no other evidence and the exculpatory element is not inherently incredible, the Court cannot accept the inculpatory element. According to the Full Bench of the Allahabad High Court, the two rules above stated had been applied, during the last one hundred years and the all Bench answered the reference by holding "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false; the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejection the exculpatory element as inherently incredible."

"21. Relying on the above statement of the law it was said by this Court in Palvinder Kaur's case, 1953 SCR 94 = (AIR 1952 SC 254) that no use could be made or her statement contained in the alleged confession to prove that the death of her husband was caused by poisoning or as a result of an or offence having been committed and once this confession was excluded altogether, there remained no evidence for holding that her husband died as a result of the administration of potassium cyanide.

17. Mr. Shanti Bhushan submitted that mere acquisition of A.K. 56 rifle cannot be connected with bomb blast or with any terrorist or disruptionist's activities and referred to Kartar Singh's case reported in JT1994 (2) S.C. 423. Mr. Shanti Bhushan submitted that only Justice Sahai has considered Section 5 of the TADA (P) Act, 1987 in his Judgement which in the unreported Judgement finds place in paragraphs 78 and 479 and submitted that as observed by Mr. R.M. Sahai, "it is no doubt true that no one has justification to have such arms and ammunition as are mentioned in section 5 of Act but unjustifiable possession does not make a person terrorist or disruptionists and further that "this section if it has to be immune from attack of arbitrariness may be invoked only if there is some material to show that the person who was possessed of the arms intended it to be used for terrorist or disruptionist activity or it was an arm and ammunition which infact was used." Mr. Shanti Bhushan submitted that the applicant accused Sanjay Dutt has not used these arms and ammunition and so mere possession of A.K. 56 riles and its ammunition would not attract Section 5 of the TADA (P) Act, 1987.

18. Mr. Shanti Bhushan submitted that he has annexed telephone bills as Exs. C1 to C13 in order to show that even in earlier occasion i.e. in the year 1992 prior to the riots and bomb blast, the applicant accused had communication with people in Dubai i.e. Dawood Ibrahim and Anees Ibrahim and it was because of his acquaintance with them when the applicant accused had visited Dubai for the shooting the film 'Yalgaar'.

19. Mr. Shanti Bhushan submitted that the applicant accused stands by his confession in which there is nothing to show that the applicant accused is concerned with conspiracy to commit bomb blast. In these circumstances, the applicant accused should be released on bail.

20. Mr. Natrajan Special PP for C.B.I, opposed the bail application. According to Mr. Natrajan, the submission of Mr. Shanti Bhushan that the applicant accused has been enlarged on bail is not correct. Mr. Natrajan submitted that the High Court was constrained to continue the interim bail granted to the applicant accused in Writ Petition to enable the accused to move the application for bail before the Designated Court.

21. Mr. Natrajan submitted that the investigation what is meant is collection of sufficient material and not evidence and so by filing charge sheet before the Court the State only places the material the investigating agency has collected in the matter which is going to be used as evidence against the accused and at this stage what the court has to consider is the material placed before the Court in order to be satisfied whether the accused can be held guilty or not. Mr. Natrajan submitted that the case cited by Mr. Shanti Bhushan under Section 30 of the Evidence Act in respect of evidentiary value of confession of co-accused can be applied and considered only at the trial and not at the stage of consideration of Bail Application of accused. Mr. Natrajan submitted that section 3 of the Evidence Act defines evidence which means evidence which would be tendered in Court i.e. oral evidence and documentary evidence and therefore the Court can take into consideration confession of co-accused as part of material placed before the Court.

22. Mr. Natrajan submitted that Section 311 Cr. P.C. vests wide powers in the Court for not only taking into consideration the material placed by the Investigating Agency but the Court may summon any person as a witness, or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined. The whole object of the trial is to enable the Court to arrive at a just decision of case. Therefore according to Mr. Natrajan this is a pre-trial stage and the Court is entitled to the all the material placed before the Court. So to arrive at a prime facia conclusion whether the accused can be released or not, on merits, Mr. Natrajan submitted that bomb blast case is the result of conspiracy to commit terrorist act for which terrorists have smuggled sophisticated firearms, ammunition and explosives like A.K. 56 rifles which fall in the category of lethal weapons and with no stretch of imagination can be said as weapon for self defence. Mr. Natrajan submitted that not only that A.K. 56 rifle is not available in open market but is not available to half of the world. Mr. Natrajan submitted that the material on record shows that the first consignment of lethal weapons and explosives were smuggled into the country by conspirators/terrorists and landed at Dighi on 9.1.1993. Mr. Natrajan submitted that the very source from where A.K. 56 riles and its ammunition were procured and the nature of weapon links up applicant accused with terrorists and Section 5 of the TADA (P) Act 1987 would stand attracted in this case. Mr. Natrajan submitted that the explanation given by the accused in his confession which is in the nature of justification cannot be said to the exculpatory in nature. It can be seen from the nature of the explanation that it is self serving and an after thought.

23. Mr. Natrajan submitted that Justice Sahai while expressing his views on the application of section 5 of the TADA (P) Act, 1987 in Kartar Singh's case has not considered the scope of Section 5 of the Act and no particular type of weapon was in the mind of the Judge. Mr. Natrajan submitted that A.K. 56 rifle was not within the contemplation of the Hon'ble Justice and so the observations of Justice Sahai in Kartar Singh's case relied on by Mr. Shanti Bhushan, Sr. Advocate will not apply to the facts of the present case.

24. Mr. Natrajan submitted that there can be no justification for possession of AK-56 rifle and its ammunition for the purpose of self defence, and the plea of self defence taken up by the applicant accused cannot be considered as exculpatory part of the confession. Mr. Natrajan submitted that illegal acts cannot be prompted on the strength of such pleas and that he opposes the application for bail filed by the accused Sanjay Dutt in national interest.

25. Mr. Natrajan submitted that in the present case the applicant accused Sanjay Dutt is on bail and as the applicant accused is not in custody, the provision of sub-section 8 of section 20 of the TADA (P) Act would not be applicable to the case of the accused and the Court can consider his application for bail under Section 437 Cr. P.C.

26. In reply Mr. Shanti Bhushan submitted that he is thankful to Mr. Natrajan for having pointed out the prerequisite for application of sub-section 8 of section 20 of the TADA (P) Act 1987 which actually should have been argued by him but was missed.

27. This Court has heard Mr. Shanti Bhushan, Learned Sr. Advocate and Mr. Natrajan, Learned Special Public Prosecutor representing CBI. I have carefully gone through the case papers. At the outset, this Court would like to mention that there can be no quarrel in respect of authorities citied by Mr. Shanti Bhushan, as regards the value to be attached to the confession of the co-accused and the manner and to the extent the confessions of co-accused can be taken into consideration by the Court.

27. The only point which arises for my determination is :

Whether there are reasonable grounds for believing that the applicant accused is not guilty of offences under TADA(P) Act, 1987.

28. Applicant accused Sanjay Dutt came to be arrested by DCB, CID on 19.4.93 in their Crime No. 70 of 1993 related to bomb blast in Bombay Stock Exchange and for offences under section 120-B and 120(B) read with sections 324, 326, 427, 435,121,121-A, 122, 307,302,201 I PC read with sections 3,4, 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 read with sections 3, 7 (a), 25 (1A), 25 (1AA), 26, 29, 35 Arms Act readwith sections 3, 4, 5 and 6 of the explosive substances Act read with section 4 of the prevention of damage to Public Property Act.

29. It appears that during the course of interrogation the accused volunteered to make a statement and so in the presence of panchas, the statement of the accused came to be recorded and consequence of the information received from the accused that he has kept one AK-56 rifle and its cartridges and one 9 mm pistol and its cartridges with his friend Yusuf Mohisin Nullwala a resident of Umarkhadi, Dongri, the accused led panchas and police party to Husseini Building, 51/53 , Umar Khadi, Second Floor, room No. 29, where Panchas and police came to know from Jumma wife of Saifuddin Nullwala that Yusuf Nullwala, the person to whom the accused had given A.K. 56 rifle and its ammunition of 9 mm pistol with its unition has been arrested by Dongri Police Station and so panchas and the police party alongwith the accused went to Dongri Police Station where accused Sanjay Dutt showed Yusuf Nullwala as the same person. Yusuf Nullwala in turn led the panchas and the police party to a building Karim Majil, Jagannath Shankar Seth Road and took them to a room on the ground floor and showed the other co-accused Kersi Bapuji Adjania to whom he had handed over one AK-56 rifle, its ammunition and one 9 mm pistol and its ammunition. In consequence of the information received from the co-accused Kersi bapuji Adajenia, the police discovered one iron rod one foot 6 inches long and a metal spring of equal length which came to be seized in the presence of panchas. This according to the information given by Kersi Bapuji Adjenia were part of AK 56 rifle melted by him in his house by means of gas welding apparatus. In respect of of 9mm pistol and its ammunition, the co-accused Kersi Bapuji Adajenia volunteered to show the police one Rusi Mulla to whom he had handed over 9 mm pistol and its ammunition and led the police to the house known as 'Mon Alpoo' situated at Band SC and Behramji Jijibhoy Road, Bandra West. Rusi Mulla in turn volunteered information to show a person by name Ajay Yash Prakash Marwah to whom he had given 9 mm pistol and its ammunition and led the panchas and the police party alongwith the accused Sanjay Dutt, Yusuf Nullwala, Kersi Bapuji Adajenia to Marwah House situated at 114-A, Turner Road, Bandra where he pointed out to Ajay Yashprakash Marwah as the person to whom he had given 9 mm pistol and its ammunition. The said Ajay Yeshprakash Marwah then produced one Polythene handbag from his house which was containing cardboard box containing one black coloured 9 mm pistol with marking as 'Pistol Auto 9 mm IA' loaded with 8 cartridges of 'S&W 9 mm' marking which was taken charge of by the police under the panchaanama dated 19.4.1993. All these articles discovered by the police pursuant to the information given by the applicant accused Sanjay Dutt came to be sent to the Forensic Science Laboratory for the opinion of the Ballistic Expert vide their letter dated 26.4.1993. At the Forensic Science Laboratory this was registered as ML Cae No.BL-472/93 and by its letter dated 24.5.1993, Mr. M.D. Asgekar, Asstt. Director (Ballistics) Forensic Science Laboratory, State of Maharashtra, Bombay sent his result of analysis which reads as under:

Exhibit 1 is a 9 mm caliber pistol in working order. Residue of fired ammunition-nitrite was detected in the barrel washings of Exhibit 1 showing that the pistol in Exhibit 1 was used for firing prior to its receipt in the laboratory.

Randomly selected three 9 mm pistol cartridges from Exhibit 2 were successfully test fired from pistol Exhibit 1. Remaining five in tact 9 mm pistol cartridges will be returned.

The metallic spring Exhibit 3A and the metallic rod Ex. 38 in respect of physical parameters like length, outer/inner diameter weight, number of spring coils and grooves (at the base of the rod) correspond to that of metallic spring and rod in any of the std. 56-1 type rifle but do not correspond to similar components in AK-47 rifle."

It is on this discovery DCB CIO further Registered offences under Sections 3,25 of the Arms Act readwith 3 and 5 of the TADA
(P) Act, 1987 vide LAC 21 of 1993 and arrested the applicants - accused Sanjay Dutt, Yusuf Mohisin Nullwala, Kersi Bapuji
Adajenia, Rusi Framrose Mulla and Ajay Yasprakash Marwah.

30. On 1.5.93 at the instance of the co-accused Kersi Babuji Adajenia, police took charge of one gas cutter attached to oxygen gas cylinder approximately 4' 11, one Burshane cooking gas cylinder and one Ghamela which according to prosecution was used for dismantling and destroying AK-56 rifles. Further on the same day 1 .e. 1.5.1993 at the instance of co-accused Yusuf Nullwala police were able to discover from the sea shore Marine Drive one Plastic hand bag with plastic handle containing 53 live cartridges of AK 56 rifles. These 53 live cartridges were also sent to the Forensic Science Laboratory , which came to be registered as ML Case No. BL-743/93 and by his report dated 17th August, 1993, Mr. M.D. Asgekar, Asst. Director, Forensic Science Laboratory, State of Maharashtra gave his results of analysis as follows :

"Randomly selected three 7.62 mm short rifle cartridges from each of Exhibit 1A and Exhibit 1B were successfully test fired from the Chinese Type 56-1,7.62 mm caliber rifle available in the laboratory. The remaining in tact 7.62 mm short rifle cartridges in Exhibit 1A and 1B will be returned."

31. In the course of investigation of this case LAC 21 of 1993, police has recorded statements of certain witnesses out of them one Mohmed Ali Shaikh adam who was working as personal attendant to accused Sanjay Dutt has stated as under:

"On or about 15.1.93, at about 0700 hours or so, Samir Hingora accompanied by one BabaChavan who is casually know to me and one more person had come to the said banglow to meet Sanjay Dutt in a white coloured Maruti van, the number of which is not known to me. While Sanjay Dutt was talking to them in the compound of his bunlgow, suddenly Sanjay Dutt summoned me. When I went there, A Sanjay Dutt told me to go to the gate of the compound of the banglow to ask the policeman and our watchman who were on duty at the said gate to go to the other gate and wait there. I requested Sanjay Dutt that the policeman who was performing his duty in uniform would not listen to my instruction and would perhaps turn wild on me and therefore I requested Sanjay Dutt if he would himself instruct the policeman and the watchman to go and wait at the other gate, they would definitely listen to him. Sanjay Dutt therefore himself went to the gate where the policeman and our watchman were standing. Before going towards them, Sanjay Dutt instructed me to bring one handbag and one chaddar as he wanted to take out and wrap some articles from the white Maruti van brought by Samir Hingora and others. Accordingly I went inside the banlgow and brought one handbag and one chaddar and handed it over to the stranger accompanying Samir Hingora and Baba Chauhan. The said stranger took the handbag and the chaddar inside his white maruti van and he wrapped something in the said chaddar which was brought by them in the said Maruti van. I did not have opportunity to see what were the articles which he wrapped in the said chaddar. He then put the said bundle inside the handbag and brought the said handbag to the spot where Sanjay Dutt was standing. Sanjay Dutt asked me to take the said handbag and to keep it in the dickey Fiat M/ car which was already parked in the compound of the same banglow. Accordingly I took the said handbag which I felt quite heavy on account of the articles kept in it, I kept the said hand bag in the dicky of Sanjay Dutt's car, locked the dicky and the doors after closing the window glasses of the car and then I handed over the bunch of the keys of the said car to Sanjay Dutt as per his instructions. I then went inside the banglow for other work. I did not ask any question to Sanjay Dutt or anybody else in this behalf, since I am an ordinary servant in the said house."

The witness Mohmed Ali Shaikh Adam has identified co-accused Samir Ahmed Hingora, and Ibrahim Moosa Chauhan as persons who had come on 15.1.1993 at about 0700 hours in a white Maruti van alongwith one more persons to Sanjay Dutt's Banglow at Pali hill, Bandra.

31. Another witness Pandarinath Hanumant Shinde PC 3497/Bandra Division who was at the relevant time on duty at the
bunglow of the accused has stated as under:

"Either on 15th or 16th January, 1993 at about 07.30 hours while I was present at the gate leading to bunglow, one white Maruti van entered through the said gate and three person got down from the said vehicle. There after some time Shri Sanjay Dutt son of Shri. Sunil Dutt came out from the bunglow and met those persons. Then Shri Sanjay dutt instructed me to go and wait near the theatre gate. Accordingly I went to theatre gate. I would like to mention here that the person at the theatre cannot see the bunglow gate and vice versa. This is so because the compound wall of the banglow gate and the wall of the theatre gate make right angle with each other due to which the persons at the banglow gate cannot be viewed from theatre gate. When Shri Sanjay Dutt instructed me to shift to theatre gate my colleague Pn 14255 was relieved by me for allowing him to have his bath etc."

This witness has also identified co-accused Samir Hingora and Ibrahim Musa Chauhan as the persons who had come in white Maruti van. In addition to this material, there is sanction order passed by Shri. S. P. S. Yadav, Dy. Commissioner of Police, Head Quarters, Gr. Bombay, for prosecution of the accused under the arms Act. In LAC No. 21 of 1993, Prosecution has mentioned following as the wanted accused in LAC. 21 of 1993 namely Salim, Kayum and Anees Ibrahim Kaskar and at the time of filing of the charge sheet co-accused Sameer Hingora, Hanif Yusuf Kadawala and Ibrahiim Baba Musa Chauhan, have been also arrested in this case. If this material placed before the Court is read alongwith the confession of the accused Sanjay Dutt what one can gather is on or about 15th or 16th January, 1993 at about 0700 hours, the co-accused Samir Hingora and Ibrahim Musa Chauhan Baba Musa Chauhan alongwith one Salim visited the applicant in a Maruti van which was loaded with AK.56 rifles its ammunition and hand grenades and that the said Maruti van parked in the bunglow of the applicant accused and from which the applicant accused took 3 A. K. 56 rifles with its magazines and 250 cartridges which the accused collected and kept in his Fiat car MMU 4372 and the same night removed these rifles and ammunitions into his private hall which is on the second floor of his bunglow.

32. thus it can be seen that the applicant accused was in possession of 3 A.K. 56 rifles, its magazines ammunition and handgrenades unauthorisedly within the notified area i.e. Greater Bombay. It is also on record that a 9 mm pistol with 8 cartridges was also in possession of the accused and which according to the confession of the applicant accused, he has procured it in September, 1992 from one Kayum a member of Dawood Ibrahim gang.

33. The next thing the court will have to examine is whether firearms and ammunition which were in possession of the applicant accused Sanjay Dutt has any nexus with the terrorists to show that Dawood Ibrahim Kaskar, Mohmed Dasa and Tigar Memon and their associates have conspired to smuggle huge quantity of sophisticated arms, ammunition and explosives like AK-56, rifles, its ammunition, 30 caliber, its ammunition, pistols and ammunition, explosives like Hand grenades and RDX into the country to commit terrorists' acts. Smuggling and landing of arms, ammunition and explosives took place on 9.1.93 at Dighi as detected in the course of investigation of this case. Part of such consignments of AK 56 rifles and its ammunition and hand grenades is found with Salim (absconding and declared as proclaimed offender) and Baba Musa Chauhan (co-accused) which they had brought concealed in a specially created cavity of a Maruti van and this wanted accused Salim appears to have been assigned with the task of distribution of these firearms, ammunition and explosives (hand grenades), its safe keeping and transit obviously with an intention to aid terrorists' acts. In the confession of the applicant accused himself, he has admitted that one Salim and Baba Musa Chauhan were the persons from whom he procured 3 A.K. 56 rifles and its ammunition. On the arrest of the co-accused Ibrahim Moosa Chauhan, Baba Chauhan, police were able to discover pursuance to the information given by the said accused one A.K. 56 rifle, 635 ammunition of AK 56 rifle, 10 magazines of A.K.56 rifle and 25 hand grenades. Thus it can be seen that the source form which applicant accused Sanjay Dutt procured 3 A. K. 56 rifles and its ammunition was from persons who are part and parcel of the conspiracy to commit terrorists acts, through out the country and one of its kind was serial bomb blast which shook the city of Bombay on 12.3.1993. There is enough material to show that wanted accused Salim, Baba Moosa Chauhan, Hanif Kadawala, Samir Hingora including the applicant accused Sanjay Dutt are close Associates of Dawood Ibrahim Kaskar and Anees Ibrahim Kaskar who are the main conspirators and were all acting under the instructions of Anees Ibrahim .In addition to this, confessional statement of co-accused Hanif Kadawala, Samir Hingora, Baba Moosa Chauhan, Mansoor Ahmed lend assurance to the prosecution case that the applicant accused not only procured AK 56 rifles and its ammunition from the terrorists but also rendered active assistance to them allowing them to store the consignment of AK-56 rifles, its ammunition and hand grenades at his residence. The conduct of the accused and the attending circumstances as revealed from the confessional statements of these co-accused, clearly go to show that the applicant accused Sanjay Dutt was fully aware that a huge quantity of arms, ammunition and explosives like AK-56 rifles, its ammunition and hand grenades have been smuggled into the country by Dawood Ibrahim and his associates for the purpose of committing terrorists' acts and considering the nature of sophisticated arms, ammunition and explosives which fall in the category of lethal weapons and can be used for committing mass violence, there can be no hesitation to attribute knowledge to the accused that these sophisticated firearms, ammunition and explosives have been brought into the country to commit terrorists' acts, may be in the back grounds of riots which followed the demolition of Babri Masjid and the applicant accused Sanjay Dutt entered into the said conspiracy by keeping for himself 3 A.K.56 rifles, its ammunition and hand grenades and rendered active assistance to them by storing part of the consignment at his residence till the same came to be removed by Salim and Mansoor Ahmed who were accompanied by Hanif Kadawala.

34. Prosecution has placed before the Court additional report consisting of documents from M.T.N.L. which goes to show that there has been telephone calls to Dubai from the residence of the applicant accused on 16.1.1993, 25.1.1993 and 30.1.1993 and the number called was 4448585 at Dubai which is the telephone of the wanted accused Anees Ibrahim Kaskar at Dubai. This is a strong circumstance which can be taken into consideration against the applicant accused particularly when considered with the delivery of AK 56 rifles and its ammunition and hand grenades at the residence of the applicant accused Sanjay Dutt and rather in the confession of the co-accused Samir Ahmed Hingora, it has come that when they had gone to the residence of the applicant accused Sanjay Dutt, they found the applicant accused in communication with the wanted accused Anees Ibrahim Kaskar on telephone and probably this explains the conduct of the applicant accused in welcoming Saleem by hugging him and Baba Moosa Chauhan and Samir Ahmed Hingora.

35. It is a settled law that since conspiracy is often hatched up in utmost secrecy, it is mostly impossible to prove conspiracy by direct evidence, it has oftener than not to be inferred from the acts, statements and conduct of the parties to the conspiracy. In the present case the conduct of the applicant accused in procuring lethal weapons like AK 56 rifles, its ammunition and hand grenades in the background of his association with Dawood Ibrahim, Anees Ibrahim and members of their gang like Kayum, Salim, Baba Moosa Chauhan, Hanif kadawala and Sameer Hingora who are all part of the conspiracy and the attendant circumstances both before and after the serial bomb blast make out a prima facie case against the applicant accused under section 3 (3) 5 and 6 of the TADA (P) Act, 1987. It is in this background that the confession of the co-accused involved in the case gains credence and in answer to the authorities cited by Mr. Shanti Bhushan, the case of Baburao Bajirao Patil Vs. the State of Maharashtra reported in 1971 (3) Supreme Court Cases 432 can be relied upon in which their Lordships have held:

"In a case of conspiracy in which only circumstantial evidence is forthcoming, when the broad features are proved by trustworthy evidence connecting all the links of a complete chain then on isolated events the confessional statements of the co-accused lending assurance to the conclusions of the Court can be considered as relevant material and the principles laid down in the case of Hari Charan Kurmi and Jogia Hajam vs. State of Bihar (1964) 5 SCR 623: AIR 1964 SC118, (1964) 2 SUJ 454:1964 SCD 956 would not vitiate the proceedings."

It can be seen that the Hon'ble Supreme Court has taken into consideration Haricharan Singh Kumri's case (cited supra) also.

36. Mr. Shanti Bhushan in his arguments has pointed out to this Court annexures Exs. E and F to the application for bail. Ex. E relates of the activities to the Petitioner a film actor while on ball and annexure Ex. F highlights social and welfare activities of the Petitioner. These are irrelevant for the purpose of considering whether the applicant accused can be released on bail or not.

37. Mr. Shanti Bhushan has further contended that while on bail, the applicant accused has not mis-used his liberty in any manner whatsoever and taking this into consideration, the Court should not cancel the bail. From these submissions of Ms. Shanti Bhushan, it appears that the Learned Sr. advocate is under a mis-conception that this Court is hearing an application for cancellation of bail which is obviously not the case. A reference to the final Judgement dated 23.9.93 in Criminal writ Petition No. 574 of 1993 filed by the applicant accused before the hon'ble High Court will make things clear and indicate on what precise the bail application is filed by the accused before this Court. Paragraph 5 of the said Judgement reads as under:

Although we are not inclined to entertain the petitions under Article 226 of the Constitution at the behest of the accused, taking into consideration the peculiar facts and circumstances of the case, we are also not inclined to disturb the order passed by the vacation Court releasing the accused on bail. The order was passed releasing the accused on bail on May 5,1993 and more than four months nave lapsed. As per the submissions made, by Shri. Lambay, the charge sheet is to be filed within a period of there weeks from today and in these circumstances, it would be appropriate to direct that the accused should continue on bail till the charge sheet is filed." Shri Jethmalani submitted that the accused need not be directed to surrender as soon as the charge sheet is filed before the Designated Court and the accused should be permitted to file an application for release on bail after the filing of the charge sheet as well as an application claiming that the provisions of TADA Act are not applicable. In the peculiar facts and circumstances of the case, we are inclined to grant request of Shri Jethmalani. Inspite of filing of the charge sheet by the police authorities before the Designated Court, the accused need not surrender till the disposal of the bail application which should be filed on behalf of the accused. We wish to make it extremely clear that the order passed in the present case should not be treated as a precedent and we are constrained to pass this order only because the accused released on bail by an interim order passed in this petition. It is open for the Designated Court to consider whether the applications if any for grant of bail and for quashing the Proceedings under TADA Act should be heard and disposed of together. We wish to make it clear that any observation made by this Court while passing the interim order or in this judgement should not be considered as expression on the merits of the case and none of the observations would be binding on the Designated Court while hearing the applications filed by the accused or made by the prosecution. The Designated Court will consider and dispose of the applications on merits."

Their Lordships while rejecting the writ Petition of the Applicant Accused have made it very clear that any observation made by the Hon'ble High Court while passing interim order or on this Judgement should not be considered as expression on the merits of the case and none of the observations would be binding on the Designated Court while hearing the application filed by the accused or made by the prosecution and that Designated Court will consider and dispose of applications on merits. Thus it can be seen that it is for the first time that a bail application of an accused is taken up for consideration on merit by any Court.

38. In case of any person arrested on charges of having committed offences under TADA (P) Act, 1987, unless the Designated Court arrive at a finding that the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence, be cannot he released on bail. It can be therefore seen that in absence of such a finding by the Designated Court, any person accused of an offence punishable under TADA (P) Act, 1987 or any Rule made thereunder, cannot be released on bail and so submissions of Mr. Shanti Bhushan that the applicant accused has not mis-used bail granted to him by the Hon'ble High Court cannot be a ground to seek bail under TADA (P) Act, 1987 but for the orders passed by the Hon'ble High Court on 5.5.1993 releasing the applicant accused on interim bail, the accused would have continued to be in custody unless he could be released on bail by the Designated Court.

39. Mr. Shanti Bhushan has cited two orders of this Court granting bail to one Sultane Rome and Mansoor Md Ahmed Quereshi and has pointed out to this Court that the reasons on which these two accused have been granted bail by this Court would also apply to the applicant accused Sanjay Dutt. By this, what Mr. Shanti Bhushan has canvassed is right to equal treatment in similar circumstances which is enshrined in Article 14 of the Constitution of India. It may be made clear that the accused Sultan Room and Mohmed Quereshi do not fall in the same category as the applicant accused Sanjay Dutt. These two accused are alleged to have gone to Dubai for taking training in the use of firearms and ammunition and for the reason stated in the orders while releasing them on bail, this Court has found that they could not be attributed with any knowledge sufficient enough to make them co-conspirators in the case.

40 As can be seen from the charge sheet during the course of investigation, following recoveries of arms, ammunition and
explosives were made y the police from the accused persons who came to be arrested:

41. This Court has repeatedly rejected the bail Application of the Accused Hanif Kadwala and Samir Ahmed Hingora. The Accused Hanif Yusuf Kadwala has preferred Criminal Appeal No. 350 of 1994 before the Hon'ble Supreme Court which came to be withdrawn and the Hon'ble Supreme Court passed the following order:

"Delay condoned.

After arguing for sometime, Learned Counsel Prays for withdrawal of this matter. The Appeal is dismissed as withdrawn."

This Court has also rejected the Bail Application preferred by Ibrahim Musa Chauhan Baba Chauhan Vide Bail Application No. 11 of 1994 by order dated 19th March, 1994. Thus it can be seen that these accused persons who were concerned with the transaction connected with Sanjay Dutt have been denied bail by this Court.

42. One of the accused arrested in this case by name Abdul Hamid Haji Mohmed Hamid Chuha who was concerned with the discovery of six Chinese AK-56 rifles and 12 magazines kept concealed in a gunny bag buried there and a half feet deep in the compound of Picnic Guest House behind New Juhu Grand Hotel, Bombay has been denied bail by this Court and the Hon'ble Supreme Court in Criminal Appeal No. 62 of 1994 decided on 21.2.1994 held as under:

" We do not propose to make any observation on the merits of the rival contentions except to say that, as we read the charge sheet, it is not correct to say that the only accusation therein against the respondent is merely of discovery of six Chinese AK-56 rifles and 12 empty Magazines made by him. We may also add that a Chinese AK -56 rifle is not to be equated with a country made pistol and the number of rifles alongwith the several magazines concealed in the manner alleged if proved, may also have significance together with the other circumstances alleged against the respondent relating to terrorist activities. This is however, a matter of appreciation of evidence at the trial and it cannot be said that the allegations made against the respondent in the charge sheet can constitute merely an offence punishable under the Arms Act and not under TADA Act. The view taken by the High Court on this aspect is contrary to law apart from being unjustified and impermissible in exercise of its jurisdiction under Article-226 of the Constitution."

In the case of the accused Abdul Hamid Chuha there is no allegation that he has used AK-56 rifles nor there is any confession of the accused himself or any other co-accused involving him further in the case. Where as compared to the accused Abdul Hamid Haji Mohmed @ Hamid Chuha the applicant accused Sanjay Dutt is more deeply involved and therefore there is no reason why the Court should make an exception in the case of the applicant accused Sanjay Dutt.

43. This Court had granted bail to one Noor Mohmed Haji Mohmed Khan as the allegations against Noor Mohd were that in his absence his business partner Md. Jindran had Permitted Yeda Yakoob (one of the wanted accused) to store RDX explosives in his godown at Kashmira - when Noor Mohmed Haji Mohmed came to know of this after the serial bomb blast in and he made a desperate attempt to dispose off RDX stored in his godown. The Hon'ble Supreme Court in Criminal Appeal No. 351 of 1994 filed by the State of Maharashtra not only cancelled the bail granted by this Court but also passed stricture as can be seen from the order which reads as under:

"After going through the records, we find the approach of the Learned Special Judge in granting ball on the facts and circumstances of this case (emphasis supplied)

44. Now I will take up the submissions of Mr. Natrajan that the provisions of sub-section 8 of section 20 of the TADA (P) Act, 1987 would not be applicable to the case of the applicant accused Sanjay Dutt as the accused is on bail. This argument of Mr. Natrajan, Ld. Spl. PP with due respect is fallacious. The learned Special Public Prosecutor either has not read the order dated 23rd September, 1993 passed by the Hon'ble High Court in Criminal Writ Petition No. 574 of 1993 or failed to understand its implication. There was a clear direction from the Hon'ble High Court for the accused Sanjay Dutt to surrender before the Designated Court on filing of the charge sheet. It is at the request of Mr. Jethmalani and taking into consideration the peculiar circumstances as observed by the Hon'ble High Court interim bail granted to the applicant accused Sanjay Dutt was allowed to continue till his bail application is decided by this Court.

45. The very fact that the applicant accused was directed to move an application for bail and or discharge before the Designated Court shows that the accused was not granted bail on merits and will be deemed to be in custody, as but for the interim bail granted to the accused Sanjay Dutt by the Hon'ble High Court, the accused applicant would have been in judicial custody, secondly, no person accused of offences under TADA (P) Act, 1987 can approach the Designated Court for bail unless he is in custody as the provisions of Section 438 Cr. P.C. which enables a person to seek bail in anticipation of his arrest for a cognizable and non bailable offence is made non applicable by virtue of sub-section 7 of section 20 of TADA (P) Act, 1987 which reads as under:

" (7) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act or any rule made thereunder."

46. I am supported in taking this view by the Judgement of the Supreme Court in the case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote reported in AIR 1980 S.C. 785 in which similar point was raised and His Lordship Mr. Justice Krishna Iyer held as under:

"5. Let us now get the grips with the two legal submissions made by the Petitioner. The First jurisdictional hurdle in the grant of bail, argues the petitioner is that the accused must fulfill the two conditions specified in section 438 cr. P.C. before they can seek justice. That provision reads : 439 (1) A High Court or Court of Session may direct:

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that subsection :

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

6. Here the respondents were accused of offences but were not in custody argues the petitioner. So no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the Court below. We agree that in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Session Judge. Judicial jurisdiction arises only when person are already in custody and seek the process of the Court to be enlarged. We agree that no person accused of an offence can move the Court for bail under S. 439 Cr. P.C. unless he is in custody.

7. When is a person in custody within the meaning of section 439 Cr. P.C. when he is in duress either because he is held by the investigating agency or other police or other allied authority or is under the control of the Court having been remanded by the judicial order or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of section 439. This word is of elastic Semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide and seek niceties sometimes heard in the Court that the police have taken a man into informal custody but arrested him have detained him for interrogation but not taken him to formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail arose.

8. Custody in the context of S. 439, (we are not, be it noted, dealing with anticipatory bail under S. 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the Court.

9. He can be in custody not merely when the police arrests him produces him before a Magistrate and gets a remand to judicial or other custody when he surrenders before the Court and submits to its directions. In the present case the police officers applied for bail before a Magistrate who refused bail and still the accused before surrendering before the Magistrate obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of S. 439 Cr. P.C. we might have taken a serious view of such a course indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender Court acquired Jurisdiction to consider the bail application it could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the Court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We. may frankly state that had we been left to ourselves we might not have granted bail but sitting under Art, 136, do not feel that we should interfere with a discretion exercised by the two courts below.

47. To conclude, on going through the record of the case and the documents submitted therein, the Court is satisfied that there are reasonable grounds for believing that the accused can be held guilty for offences under sections 3 (3), 5 and 6 of the TADA (P) Act, 1987 in consequence of which bail application will have to be rejected.

48. Before parting with this order Court cannot overlook and allow it to go un-noticed that the applicant accused in his application for bail on page 16 grounds (B) has stated that "prosecution of this petitioner is a blot on the administration of justice." This Court would like to remind the accused and his esteemed lawyers that even a cursory reading of the preamble of our Constitution is embedded in the" rule of law" and the majesty of law lies in the principle that no one is above the law. On the accused claiming that his prosecution is a blot on the administration of justice is to suggest that he is above the law and this is nothing but an attempt to ridicule the judiciary which is highly deplorable and deserves to be deprecated. Hence I proceed to pass the following order:

ORDER

Misc. Application No. 218 of 1994 in BBC No.1 of 1993 is rejected as not pressed.

Application for bail made by the applicant accused in Misc. Application No. 118 and Bail Application No. 31 of 1994 stand rejected.

Judge, Designated Court TADA (P) Act

4.7.1994 Greater Bombay.

A Translation of original Marathi letter sent to police commissioner, Thane, Shri Akashi

Dear Akashi,

I wish to draw your attention to the news item appearing in M.T. of July 7, 1994, on the front page captioned "Demonstrations by film artists in support of Sanjay Dutt" along with a photograph, so also to news about this appearing in all other newspapers.

Special TADA Court Judge Shri J.N. Patel dismissed Sanjay Dutt's bail petition and ordered his detention in judicial custody till the disposal of the Bomb Blast case and also stated clearly that the conspiracy to arrange bomb-blast and other terrorist activities was hatched by Dawood Ibrahim Kaskar, Anis Ibrahim Kaskar and other conspirators like Salim Baba Musa Chavan, Hanif Kadawala and Samir Hingora,Sanjay Dutt was a party to it. Three A-K-56 assault rifles and other arms and ammunition were not for self-defence, but were obtained from individual perpetrating terrorist activities. Designated Judge Shri J.N. Patel has stated clearly on the basis of evidence and documents presented before the court that Sanjay Dutt is prima facie an accused, under clauses 3(3)5&6 [of TADA Act 1987] and that his bail petition is rejected. The judge has made a very telling remark that 'No citizen is above law' while dismissing the arguments of Sanjay Dutt's advocates Hundreds of innocent citizens have been killed and property worth crores of rupees has been destroyed. The only way to create confidence in the minds of people that rule of law prevails here is to mete out proper punishment to all individuals and elements that perpetrated this deed, being traitors to the country. On this background yesterday's demonstration was insulting to patriotic and law-abiding citizens. Making a shameless show of sympathy with conspirators in a crime and making a public proclamation that 'we are supporting you', these individuals are either equally culpable with the accused or are foolish ignoramuses. These happenings make a good citizen hang his head in shame. As all these people demonstrated so openly in front of the jail and as many a police officer was present at the time, it is evident that permission was granted legally for holding those demonstrations. If such permission was, indeed, given, I, as a citizen, place on record my indignation and anguish that your conscience has become completely bankrupt. In order that order be maintained in this city, Rule 22 clause 37(3) of the Police Act (Bombay) 1951 has been promulgated for the last few years whereby in the Police Commissioner's jurisdiction, assembly of more than five persons holding meetings,taking out morchas and holding demonstrations, raising slogans and counter-slogans, have been prohibited. Was this order not in operation on July 6,1994 ? In this connection I wish to bring the following facts to your notice . We, numbering hardly 12 or 15, were to submit to you a letter concerning the growing police-criminal nexus and unabashed corruption in the police force,not endangering peace and were, as a token protest, to stand covering our faces with black cloth and hanging our heads in shame for 30 seconds. We had no placards in hands. But your officers showed exemplary promptness and sense of duty, under the abovementioned order, in arresting us. We were just recording our protest in a silent democratic way (Oct.7,1993). We were not going to exhibit any shamelessness in supporting criminal and traitorous elements. Whom is the police force backing today ? If a common citizen feels outraged at this convenient promptness and duty-consciousness on your part, is he committing any crime ? I wish, further, to bring to your notice that I had proposed to submit a letter in connection with Sanjay Dutt to the Superintendent of Thane Jail. The Jail authorities, without assigning any reasons, refused to accept the said letter.

Is a citizen not competent to present a letter to a Govt. Officer under democratic dispensation ? Surprisingly, however, the Superintendent, Thane Jail, Shri Kilinge accepts the letter from individuals who hold demonstrations supporting an accused, Sanjay Dutt. What does this mean ? What, on earth, is the significance of not accepting a letter presented democratically in full defence to law and accepting one when presented by mobs holding demonstrations ? All conveniences and concessions are available, behind the shield of arguments and logic, to goondas and those wielding money-power, and police baton to law abiding citizens following democratic ways !! What a travesty of Justice !! Do not these actions on your part corroborate the popular perception that goondas are governing this country? Respected Akashi, may I bring to your notice that we are not senseless fools ! There are limits to our tolerance. It is not our weakness that we respect law and democracy. The weak-kneed cowardice shown by you at the time of demonstrations in support of an accused, Sanjay Dutt, stretches our tolerance beyond limits. Take timely notice of this disaffection and outburst of people and show respect to civility. Righteous indignation that will burst forth among people when they have lost confidence in you will benefit nobody. Why did you give permission to yesterday's demonstration? If permission was not given, why did you not arrest them? We demand replies to these queries. I end this letter condemning strongly again your postures adopted in the context of the said demonstration.

Thanking you,

Yours faithfully,

Sd/-

Dr. V.V. Bedekar

July 5,1994

To

Superintendent of Prison,

Thane

It has been learnt from all leading news papers of today (Tuesday July 5, 1994) that Sanjay Dutt, accused in the Bombay Blast case and a tada detenu, has been brought to Thane jail on the evening of July fourth. Special designated Tada judge J.N. Patel has rejected bail application saying that the material brought before him suggested that Shri Sanjay Dutt entered into a terrorist conspiracy and the judge remanded him to judicial custody till conclusion of the trial. The Bombay Bomb Blast, one of the most tragic and outrageous events in which hundred of innocent people lost their lives, besides destruction of public and private property. More lives of innocent Indian citizens were lost in these serial Bombay blasts event than the number of American soldiers who died in the Kuwait-Iraq war. We have many Tada detainees and it is needless to say that all of them are subject to the same treatment in jail, irrespective of his economic or social status in the society. Accused Sanjay Dutt was detained at Thane jail last year and the reports of respectable and reliable newspapers revealed a disgraceful hero -worship treatment given to him in the presence of higher police authorities. There are also incidences on record of unruly behavior and escapes of inmates within Thane jail and during their transportation from jail to respective courts in town. These incidences reflect on the integrity of your department. Public faith in police at large is at a very low ebb. The honourable judge has granted home food and such facilities as were given to other accused in the case. The honourable judge has also unambiguously pointed out that no person is above the law. We therefore request you, humbly, to adhere strictly to the court directives in this regard. We are also interested and expect a transparency in information of all those social, political individuals and elected members of all constituent bodies desirous of meeting Sanjay Dutt in jail.

I would like to conclude my letter with the observations of judge JN Patel exposing Sanjay Dutt's nexus with the main conspirators who masterminded the bomb blasts in Bombay.

"Thus it can be seen that the source from which the applicant accused Sanjay Dutt procured three AK-56 rifles and its ammunition was from persons who are part and parcel of the conspiracy to commit Terrorist Acts, throughout the country and one of its kind was the serial bomb blast which shook the city of Bombay on March 12,1993. There is enough material to show that wanted accused Salim, Baba Moosa Chauhan, Hanif Kadawala, Samir Hingora including the applicant accused Sanjay Dutt are close associates of Dawood Ibrahim Kaskar and Anees Ibrahim Kaskar who are the main conspirators".

Thanking you,

Yours faithfully,

Dr. V.V. Bedekar

1) D.I.G. of Prison

2) Commissioner of Police, Thane