PETITIONER: S.N.THAPA Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT05/04/1994 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) AHMADI, A.M. (J) CITATION: 1994 SCC (4) 38 JT 1994 (3) 191 1994 SCALE (2)473 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
R.M. SAHAI, J.- This appeal is directed against the order
dated 18-9-1993 passed by the Designated Court, Pune
dismissing the bail application filed by the appellant under
Section 20(8) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as ‘TADA’).
2. The appellant is an Additional Collector of Customs.
He is an accused against whom a case was registered under
various sections of Indian Penal Code including Sections 3,
4 and 5 of TADA. The case relates to what has come to be
known as Bombay Bomb Blast case. It is undisputed that
between the last week of January and first fortnight of
February 1993 huge quantity of arms, ammunition and
explosives were smuggled in the country. According to
prosecution the large-scale smuggling of highly
sophisticated and lethal weapons would not have been
possible but for the connivance of the officials of the
Customs Department. The Designated Court after considering
the material on record and after a detailed discussion
recorded a finding that there was no direct evidence to
implicate the appellant in the conspiracy. Yet it rejected
the bail application as according to it there was material
to draw an inference that the appellant rendered assistance
to the smugglers in importing the huge quantity of
explosives, arms and ammunition and in transporting it to
Bombay where the bomb explosions took place causing deaths
of hundreds of persons and struck terror in the people.
3. The learned counsel for appellant assailed the finding
recorded by the Designated Court and placed reliance on
various material to demonstrate that no offence under any of
the sections of the TADA was made out against the appellant.
The learned counsel urged that the various circumstances
which have been relied by the Designated Court were either
irrelevant or were of no consequence and they, taken either
individually or collectively, could not establish any of the
offences under Sections 3, 4 and 5. The learned counsel
urged that the inference drawn by the Designated Court that
the appellant rendered assistance to the smugglers in
landing huge quantity of explosives was based on no material
on record. The appeal was opposed by the State and it was
urged that the charge-sheet has been submitted and the trial
was going to commence in April 1994. The learned counsel
submitted that in case such accused were released on bail it
would create a very demoralising
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effect on the prosecution and shake the social confidence.
On merits the learned counsel argued that the Designated
Court did not commit any error in dismissing the
application.
4. The tragedy that took place in March 1993 was one of
the ghastliest in the history of this country. Further a
crime of such magnitude was possible due to illegal
smuggling of huge quantity of arms and explosives. That
such smuggling was possible due to connivance of the
officers of the Customs Department is prima facie
established. Yet it cannot be the sole ground to keep every
officer of the Customs Department behind the bars unless
there was some material to justify it. From the
confessional statements of the officers of Customs
Department it appears that for these smuggling activities
huge amount of money was paid which used to be shared
proportionately by the officers in the department. Yet the
question is if there is any evidence or any material on
record to establish that the appellant was associated or was
responsible for smuggling of the arms. The case of the
prosecution was that the appellant helped the smugglers in
landing of the arms, ammunition and explosives on the sea
coast and in transporting the same to Bombay where later a
series of bomb blasts took place. Even in the charge-sheet
which has now been submitted and a copy of which has been
filed it is stated that the investigation disclosed that the
appellant colluded with other conspirators in illegal act of
intentionally facilitating the landing and transportation of
the contrabands comprising AK-56 rifles, ammunition, 9 mm
pistol and detonators hand grenades, explosives etc. It is
also alleged that the appellant despite information from his
superior officers did not maintain a strict vigil and
knowingly and intentionally misdirected customs surveillance
staff in different directions with a view to facilitating
safe landing of the contraband. In this manner by
defaulting in the normal performance of his duties it is
alleged that he knowingly and intentionally facilitated
others in achieving the objective of criminal conspiracy.
5. No material could be pointed out by the learned counsel
for the State which could establish that the appellant was
responsible in the importation and transportation of the
contraband to Bombay. The basic allegation against the
appellant is that he by colluding with the conspirators
permitted the arms and explosives to be smuggled in the
country. That the goods were smuggled in large scale cannot
be disputed. But the question is whether there is any
material which could establish even strong suspicion against
the appellant that he was aware of the nature of conspiracy.
6. The first circumstance relied on by the Designated
Court to draw the inference against the appellant was a
confessional statement made by an Inspector of Customs Shri
P. Natarajan that he had learnt that the appellant was aware
of every landing and that at every time of landing the
appellant used to get substantial amount. He further stated
that he learnt that a meeting had taken place between the
smugglers and the appellant in a hotel. The other
circumstance relied was the statement made by one of the
Assistant Collectors of Customs that in the month of January
the appellant had
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circulated an order to the effect that unless and until an
alert was sounded patrolling and checking of the vehicles
should not be undertaken. Another circumstance relied on
against the appellant was that when on one occasion he was
informed that smuggled goods may land he stationed the
checking party in such a manner that he kept one route
deliberately open for the smugglers to escape. Each of the
circumstances, according to learned counsel for appellant,
was irrelevant and in any case did not establish any
connection between the appellant and the crime in question.
The learned counsel urged that the confessional statement of
the Customs Inspector could not be read in evidence as it
was only based on hearsay. Besides he was a person against
whom the appellant had taken steps and got him suspended and
transferred. The learned counsel submitted that if the
confessional statement is ignored then the other
circumstances which have been relied on are not only too
remote to create any suspicion, what to say of strong
suspicion, but were irrelevant and liable to be ignored. We
do not propose to make any comment on the evidence on which
reliance has been placed by the Designated Court. But in
the facts and circumstances of the case and on the material,
as at present, it appears there was no legal evidence to
prima facie establish that the appellant had assisted either
in the smuggling of the goods or of its transportation to
Bombay.
7. However, since the charge-sheet has been submitted, we
would like the Designated Court to reconsider the matter
with a view to finding out if there is any evidence
collected in the course of investigation which would show
the involvement of the appellant with the crime in question.
8. In the result, this appeal is allowed, the order of the
Designated Court is set aside and the appellant is directed
to be released on interim bail, subject to furnishing of a
personal bond of Rs 1,00,000 before the Designated Court and
two sureties of Rs 50,000 each to the satisfaction of the
Designated Court. The matter is remitted to the Designated
Court for reconsideration of the bail application in the
light of fresh material that might have been collected
against the appellant during investigation.
9. Till the grant of final bail the appellant shall not
leave Bombay. The passport etc., if any, shall stand
impounded and the appellant shall not be permitted to leave
the country. It shall be open to the Designated Court if it
comes to conclusion that the appellant is entitled to be
released on bail to impose such conditions as it considers
necessary. If the Designated Court refuses bail and rejects
the application the appellant will surrender to his bail.
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