Judge Kode took over as the special TADA court judge in 1996 and was instrumental in dishing out the 1993 Mumbai serial blasts judgement including the conviction of Sanjay Dutt. He was elevated and retired as the Bombay High Court Justice. Justice Kode spoke to HT on Sanjay Dutt’s release from jail and his conduct in prison.
On Sanjay Dutt’s conduct
A day before the final verdict, during the court hours, Sanjay came and asked for clarity. He asked whether he was a terrorist or not. He said he wanted it to be clarified because there were people who were maligning his name by referring to him as a terrorist. I had found that he was neither involved in the conspiracy or for any offence under the Terrorist and Disruptive Activities (Prevention) Act (TADA). I told him, ‘I have found that you are not a terrorist but found you guilty only under the Arms Act.’
Since the time I took charge of the case in 1996, Sanjay never misbehaved before the court nor did he portray he was a celebrity. He behaved like any other commoner, or a common accused, and was calm and quiet before the court and never indulged in any unwanted activity.
He was humble before the court, and never protested before the court, which is what every accused should be like. But some of the accused were not, and, in fact, have been rude as well.
As I recollect, he had asked for some exemption but I had told everyone this is a criminal trial and there would be no exemptions. On one occasion he had told the court that his work would suffer, to which I told him that I would see his conduct, and that he could work in night shifts. He accordingly worked in night shifts.
When I found his request was genuine because he had already entered into a contract with somebody, he was given concession. But he was told to be present when evidence directly against him was being presented in the court. On a few occasions he was permitted to go abroad, but at no time was a blanket order given. Each occasion was treated differently and on merit.
The case against Sanjay Dutt
The predominant thing in Sanjay Dutt’s case was that he had acquired the weapon much before January 20, 1993. January 20 was a crucial date because it was the day when the first meeting to conspire to conduct bomb blasts had occurred between Dawood Phanse and Dawood Ibrahim in Dubai.
So Sanjay procuring a weapon prior to that could not be considered as part of the conspiracy, or to the bomb blasts. Also, there was no evidence placed before the court to link the weapons to the serial bomb blasts. Sanjay had received weapons from a lot which landed at Dighi village in Raigad coast on January 6. Part of the consignment was sent to Bombay, while the bulk was sent to Gujarat.
The evidence against Sanjay did not transect beyond the fact that somebody had been to his house, and somethings were handed to him. And ultimately some persons had taken an AK-56 gun and pistol from his house and destroyed it.
To link Sanjay with conspiracy of the bomb blasts, there should have been some evidence. But the evidence was wanting. There was no evidence that he used those arms anywhere. There was no further evidence that he was involved in the operation or conspiracy or either of acquiring training, going to Dubai or attending meetings in Big Splash hotel, Taj Mahal hotel etc. Neither was he involved in the surveillance or planting of the bombs or has gone to Memon’s house.
Beyond this he gave confession and the law of confession is settled to the effect that confession cannot be bisected. We believe the confession to be true and voluntary, and the whole has to be accepted. Sanjay gave his confession in which he said he was worried about the safety of his family, and during discussion with his friends they advised him to acquire an AK-56 rifle.
He had said that because his father was a political figure there were threats to his family, and that he was scared because of which he agreed to his friend’s suggestion to get the assault rifle. He had taken only AK-56 rifle while the rest of the weapons and ammunition was given back to the persons who got it for him. His contention deserved to be accepted. He had proved that he had acquired it for a purpose other than commission of terrorist activity, so he could not have been convicted under TADA. It was a foolish thing on his part because he could not have used that weapon. Because the moment he had used the weapon he would have been detected.
But since his confession was accepted his possession of contraband arms and ammunition was proved, now there could not have been any license for that as it was a prohibited weapon. He was charged under Arms act, and not TADA as it was not for terror activity.