2001 Supreme(SC) 38

2001(1) Supreme 78
Supreme Court of India
(From Designated Court at Ahmedabad)
M.B. Shah & S.N. Phukan, JJ.
Lal Singh etc. etc. —Appellants
versus
State of Gujarat & Anr. —Respondents
Criminal Appeal No. 219 of 1997
With
Criminal Appeal No. 244 of 1997
And
Criminal Appeal No. 294 of 1997
And
Criminal Appeal No. 407-409 of 1997
And
Criminal Appeal No. 1409-1411 of 1999
Decided on 9-1-2001
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar, R.B. Mehrotra, P.P. Malho­tra, Sr. Advocates, R.K. Talwar, D.M. Sinha, Yash Pal Dhingra, Sanjay Jain, R.P. Wadhwani, Anis Ahmed Khan, W.A. Noomani, Z.K. Faizan, B.U. Burqi, Anil Kumar Gupta-II, (Ms. K. Sarda Devi) Advocate (SCLSC), Romy Chacko, S.A. Matto, Mrs. Rekha Pandey, P. Parmeswaran, Yashank Adhya­ru, Ms. Anu Sawhney, Ms. Hemantika Wahi, Advocates.

Important points
1. For convicting the accused under Section 3(3) TADA Act, it is not necessary that someone should be convicted under Section 3(2) for commission of a terrorist act.
2. Section 15 TADA Act is an important departure from the ordinary law and must receive the interpretation which would achieve the object of that provision and not frustrate or truncate it.
3. A confession recorded under Section 15 of the TADA Act is a sub­stantive piece of evidence and can be used against a co-accused also.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sec­tion 3(3)—Indian Penal Code, 1860—Section 120-B—Criminal conspiracy for subversive and terrorist activities in India—Prosecution of twenty one accused on charge that they alongwith 13 named absconding accused and some unknown sikh militants hatched criminal conspiracy in India and abroad for subversive and terrorist activities in India and for facilitating creation of Khalistan and Liberation of Jammu and Kashmir—Acquittal of 16 accused—Conviction of 5 appellants—Appeal—Convictions confirmed—Sentence of life imprison­ment as against A1 and A2 sustained—A3, A4 and A20 directed to suffer RI for 10 years with fine of Rs. 10,000/- each, for offence under Section 3(3) TADA—Their conviction and sentence under Section 120B and 120B(1) of IPC imposed by Designated Court maintained. (Paras 92 and 93)

       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sections 3(2), 3(3)—Terrorist acts—Convictions under Section 3(3)—Legality of—Whether before convicting accused under Section 3(3) there should be conviction of someone under Section 3(2) of TADA Act for terrorist act?—Held, No.

       Held : The aforesaid section provides for various acts which would be considered as terrorist acts and punishment thereof. It also provides for punishment of acts which are not terrorist acts. Section 3(1) enumerates various activities which are considered to be terrorist acts and sub-section (2) provides for punishment of such acts. Sub-section (3) contemplates acts which are not terrorist acts by themselves, but activities prior or subsequent to the terrorist act. Under this section, a person can be convicted if it is proved that he —(a) conspired, (b) advocated, (c) abetted, (d) advised, (e) incited, or (f) knowingly facilitated—the commission of a terrorist act or any act preparatory to a terrorist act. Any of these acts by itself constitutes an offence. Therefore, for conviction under sub-section (3), it is not necessary that there should be a conviction under sub-section (2) for a terrorist act. The aforesaid activities are not only abetment of terrorist act, but include other acts which are not covered by the concept of abetment as provided under Indian Penal Code, namely, “advocates”, “advises” and “any act preparatory to a terrorist act”. (Para 19)

       Hence, in our view, for convicting the accused under Section 3(3), it is not necessary that someone should be convicted under Section 3(2) for commission of a terrorist act. (Para 20)

       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 15—Confessional statement recorded by Investigating Officer—Admissibility—Statements were recorded by investigating officers or officers supervising investigation—Accused were not produced before the Judicial Magistrate immediately after recording confessional statements—Guidelines laid down in case of Kartar Singh are not followed—Whether confessional statements are inadmissible in evidence?—Held, No—Custodial interrogation in such cases is permissi­ble under law to meet grave situation arising out of terrorism un­leashed by terrorist activities—Confessional statements were recorded prior to date of decision in Kartar Singh case, i.e. before 11.3.1994—Guidelines neither incorporated in the Act or Rules—No requirement that as said guidelines not followed confessional state­ments even if admissible in evidence, should not be relied upon.

       Held : The confessional statement recorded by the Investigating Officer is not admissible in evidence because of specific bar under Sections 25 and 26 of the Evidence Act. When that bar is lifted by the Legislature, it would be difficult to hold that such confessional statement is inadmissible. (Para 21)

       It is entirely for the Court trying the offence to decide the question of admissibility and reliability of confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question, should satisfy itself that there was no trap, no track and no importune seeking of evidence during the custodial interrogation and all the conditions required are fulfilled. (Para 22)

       Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11th March, 1994. Further, despite the suggestion made by this Court in Kartar Singh’s case, the said guidelines are neither incorporated in the Act or the Rules by the Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh’s case (supra) that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. (Para 23)

       In the present case, undisputedly when the accused were produced before the Magistrate they did not make a complaint that the confessional statements were recorded under coercion. Further, Rule 15 of the TADA Rules is complied with the each accused making the confession was explained that he was not bound to make it and in case he makes it, it could be used against him as evidence. Further, the officer had also verified that accused was making the confessional statement voluntarily and certificate to that effect is also attached to the said confessional statement. For its reliability and truthfulness, prosecution has produced on record other corroborative evidence. (Para 24)

       (iv) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 15—Confessional statement—Substantive piece of evi­dence—It can be used against a co-accused also. (Para 23)

       (v) Indian Penal Code, 1860—Section 120B—Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 3(3)—Criminal conspiracy for subversive and terrorist activities in India—A foreign national found staying in the country without valid passport and visa—His movements from one place to another with A1 established—Recovery of large quantities of arms and ammunitions etc. from premises occupied by A1—It would be prudent and reasonable to draw inference of criminal conspiracy. (Para 83)

       (vi) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sec­tion 3(3), 5—Indian Penal Code, 1860—Section 120B—Criminal conspir­acy for subversive and terrorist acts—A1 moved from one place to another in India in different fake names—Police found large quanti­ties of arms, ammunitions and explosive substances from premises occupied by A1—Confessional statement held reliable—Conviction of A1 for offences under Section 3(3), 5(1) TADA Act and under Section 120B IPC and Section 25(1)(a) Arms Act, sustained. [Para 91(1)]

       (vii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 3(3)—Indian Penal Code, 1860—Section 120B—Criminal conspiracy for subversive and terrorist acts in India—A2, a Pakistani national—He moved from one place to another in India without passport and visa—He stayed with A1 at different places in different names—His confessional statement that he was ISI agent involved in terrorist activities and hatched criminal conspiracy with A1, relied upon—His conviction under Section 3(3) TADA and Section 120B IPC upheld. [Paras 91(2)]

       (viii) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 3(3)—Indian Penal Code, 1860—Section 120-B—Criminal conspiracy for subversive and terrorist acts in India—Confessional statements of A3, A4, A20—Association with A1—Convictions confirmed. (Para 91)

       (ix) Evidence Act, 1872—Section 3—Benefit of doubt—Concept of—It is vague—Before granting benefit of doubt to accused, doubt should be reasonable one which occurs to a prudent man and not to a weak or unduly vacillating or confused mind—Terrorist activities—Recovery of arms and ammunitions at the instance or disclosure by accused—Accused to explain its possession or discovery or recovery—Presumption of innocence would not exist.

       It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of concep­tions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. In such type of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that pre­sumption of innocence would not thereafter exist and it would be for the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to “separate the chaff from grain”. In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If it is established on record that A20 was found in company of A1 and A2 at Aligarh and that at Bombay also he had introduced himself as friend of A1 and A3 to PW87, who is his childhood friend, then it would be reasonable to infer that he was co-conspirator and assisting A1 and A2, as stated in his confessional statement. (Para 87)

       (x) Terrorist and Disruptive Activities (Prevention) Act, 1987—TADA Rules—Rule 14—Procedure of issuing warrant—Large quantity of arms and explosive substances were stored in premises—Police officer was entitled to exercise power under Section 165 Cr.P.C. (Para 88)

       (xi) Criminal Trial—Muddamal arti­cles—Recovery of a large quantity of arms and explosive substances —Deposit of articles at police headquarters because of its large quantity—Whether recovery vitiated—Held, No.

       Held : It is the say of the witness that muddamal arms and ammunitions were deposited at the police head quarter because of its large quantity. It is quite possible that there may not be sufficient space at the police station where FIR was registered. In any case, for the purpose of safety if the muddamal articles are deposited at the police headquarters, it cannot be said that the recovery is in any way vitiated. (Para 89)

       (xii) Terrorist and Disruptive Activities (Prevention) Act, 1987—TADA Rules—Rule 15—Procedure for recording of confessional statement—Requirements of law. (Para 90)