2007 Supreme(SC) 188

2007(3) Supreme 311
SUPREME COURT OF INDIA
(From Delhi High Court)
S.B. Sinha and Markandey Katju, JJ.
Harbans Singh—Appellant
versus
State (Govt. of N.C.T. of Delhi)—Respondent
Criminal Appeal No. 212 of 2007
(Arising out of Special Leave Petition (Criminal) No. 2930 of 2006)
Decided on 15-2-2007
Counsel for the Parties :
For the Appellant : Harjinder Singh, Sr. Advocate, Yogesh Saxena, Ms. Vandana Sharma, Ranjan Mukherjee, Ms. Seema Juneja and S.V. Deshpande, Advocates.
For the Respondent : Vikas Sharma, R.C. Kathia and D.S. Mahra, Advocates.

IMPORTANT POINT
Conviction of two accused for offence u/ss 3/20/22 of Prevention of Terrorism Act, 2002 is sustainable when the prosecution has sufficiently proved that the confession of the accused was genuine and there was due compliance with provisions of Section 32 of the Act.

Headnote:Prevention of Terrorism Act, 2002—Sections 3, 20, 22, 32 and 52—Confessional statements—Procedural safeguards for recording such confession—Due compliance with provisions of Section 32 of the Act—Two accused were strangers—Prosecution case that appellant identified co-accused with the colour of his dress of which he had made a note in a slip of paper—Appellant handed over a black polythene packet to co-accused—Both were immediately arrested—On interrogation co-accused admitted his contacts with LeT and delivery of Rs. 7 lakhs through Hawala payments—Polythene packet contained 14 packs of 100 notes of denomination of Rs. 500/- —Police also arrested one ‘BB’ who allegedly had handed over money to appellant for the purpose of delivering the same to co-accused—Purpose of handing over cash especially within the knowledge of the two accused—Applicability of Section 106, Evidence Act—Whether High Court was justified in convicted the two accused u/ss 3/20/22 of the Act—(Yes)—Evidence Act, 1872—Section 106.

       Held : The High Court has recorded a finding that the prosecution has sufficiently proved that the confession of the accused was genuine and it was made and confirmed by the Chief Metropolitan Magistrate as per the provisions of Section 32 of POTA. As seen from the record, the recovery of the money immediately after the transaction in question has been sufficiently proved. Admittedly, the two appellants, namely, Harbans Singh and Mohd. Ayub Mir, were strangers to each other till the time the money was being handed over. Harbans Singh identified Mohd. Ayub Mir with the colour of his dress of which he had made a note in a slip of paper. The number of the 10 rupees note was another such factor in identifying each other. Neither of the two claimed to have had any kind of transaction with each other at any earlier point of time. They were neither partners in business nor had any occasion to deal with each other. In this situation, the purpose of handing over the cash is especially within the knowledge of the two accused/appellants, Harbans Singh and Mohd. Ayub Mir. Section 106 of the Evidence Act casts upon them a responsibility of advancing an explanation for the same. The applicability of Section 106 of the Evidence Act in the criminal law has been recognized by the Supreme Court in several judgments.(Para 11)

       In their statements under Section 313 Cr.P.C. they denied having made any such confession. Instead of coming out with some explanation of their own about the purpose of handing over the money they denied that there was ever any transaction of giving and taking the sum of Rs.7 lakhs. They even denied that they were arrested by the police on the spot and the sum of Rs.7 lakhs was recovered from them. Harbans Singh who said that he was actually arrested from the office of one Pawan has not cared to prove this allegation by production of evidence.(Para 12)

       It can be seen that the entire case of the prosecution has been proved by the prosecution witnesses except the purpose of the transaction. In the absence of any explanation from the accused in this regard, an adverse inference is in our opinion attracted. They have failed to discharge their onus. It is only for this missing link that the confessional statements were used.(Para 13)

       During the trial, the DCP Ujjwal Misra who recorded the confession was thoroughly examined and cross-examined. No question was put to him suggesting that the warning was given in English, which the accused could not understand. In fact, Shri Ujjwal Misra, DCP stated in his evidence that he explained to each accused that he was not required to confess and that if he did, the confession could be used against them. In our opinion Sections 32 and 52 of POTA were complied with in the present case.(Para 15)