IMPORTANT POINT
A confession statement to police is not admissible under the general law connected with administration of criminal justice, which is made admissible under the TADA Act, and, therefore, the strict compliance of the procedure prescribed under Section 15 of the TADA Act read with Rule 15 of the TADA Rules is expected to be followed.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987 — Section 15 — TADA Rules — Rule 15 — Confession — Admissibility — Evidentiary value — Mode of recording — Guidelines laid down by Constitution Bench in Kartar Singh’s case (1994(3) SCC 569) — It is necessary for the Police Officer to certify that he has explained to the accused that the accused is not bound to make a confession and if he does so such confession may be used as evidence against him — Certificate which is required to be given by the Police Officer is not a mere formality — Where compliance of Rule 15(3)(b) of the TADA Rules has been done in a mechanical manner — Acquittal of accused sustainable when.
       Held : Under Section 15 of the TADA Act, notwithstanding anything contained in the Indian Evidence Act, a confession made by an accused before a police officer not lower in rank than a Superintendent of Police which is recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person. By Act No. 43 of 1993, such confessional statement was made admissible against the co-accused, abettor or conspirator for an offence committed under the TADA provisions or Rules made thereunder, provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. Sub-section (2) of Section 15 casts an obligation on the part of the police officer to explain to the person making the confession that he is not bound to make a confession and further to give a statutory warning that if he does so it may be used as evidence against him. Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (for short “the TADA Rules”) lays down the mode of recording the confession and Rule 15(3)(b) requires the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he is not bound to make the confession and that the confession, if made by him, may be used against him; and that he has recorded the confession only on being satisfied that it was voluntarily made. Rule 15(5) requires that every confession recorded under Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area and the Magistrate shall forthwith forward the recorded confession received by him to the Designated Court taking cognizance of the offence. (Para 44)
       From the aforementioned statements of law enunciated by this Court, it is apparent that considerable amount of confidence has been reposed on the senior police officials for recording the confessional statement. A confession statement to police is not admissible under the general law connected with administration of criminal justice, which is made admissible under the TADA Act, and, therefore, the strict compliance of the procedure prescribed under Section 15 of the TADA Act read with Rule 15 of the TADA Rules is expected to be followed. Any confession made in defiance of the safeguards provided therein, would not be relied upon by a court. The confession should be made voluntarily without there being any force or pressure put on, or allurement or inducement given to, a person who is voluntarily admitting his guilt. Under Section 25 of the Indian Evidence Act, a confession made to the police officer is not admissible in evidence to be considered by a court. Although there are certain exceptions in the preceding provisions, but the fact remains that as a rule a confession made to the police officer is not made admissible under the Evidence Act. The idea appears to be that any statement made to a police officer who is connected with the investigation and prosecution of a person, would not be taken as evidence. Under Section 15 of the TADA Act, if a confession made by the accused to a police officer not lower than the rank of Superintendent of Police is made admissible, it would still be a confession made to the police officer, and thus inbuilt safeguards have been provided under Section 15 of the TADA Act read with Rule 15 of the TADA Rules so as to lend credence to the confession made to the police officer, it being voluntarily and without any force or pressure and allurement or inducement. (Para 49)
       It is necessary for the police officer to certify that he has explained to the accused that the accused is not bound to make a confession and if he does so such confession may be used as evidence against him. It is further required to be recorded that he believes that the confession was voluntarily made. He has to record that the confessional statement has been taken in his presence and hearing and recorded by him. The confessional statement should be read over to the person making it and admitted by him to be correct and it should be certified that it contains a full and true account of the statement made by the accused. The certificate which is required to be given by the police officer is not a mere formality, but it is for the purposes of ascertaining that the police officer has recorded the confession keeping in mind and being fully aware of the fact that the confession recorded by him is a voluntary confession and with the information available to the accused that he is not bound to make such confession and if he does so it will be used as evidence against him. A duty is cast on the police officer who is to record the confession to bring at the relevant time these facts to the notice of the person whose confession is going to be recorded. (Para 50)
       From the aforesaid certificate, it does appear that compliance of Rule 15(3) (b) of the TADA Rules has been done in a mechanical manner. It does only certify that it is the satisfaction of the recording officer that the facts that the accused is not bound to make the confession and if he does so it shall be used as evidence against him, were known to the accused. However, there is no certification that the statement was recorded in the presence and hearing of the police officer; nor the statement has been admitted to be correct by the accused; and that the statement contained a full and true account of what was stated by the accused. (Para 51)
       We have also noticed the fact that in spite of the directions issued by this Court in Kartar Singh (supra), the accused whose statement was recorded under Section 15 of the TADA Act on 5.5.1995 and 8.5.1995 was not produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the statement is required to be sent under Rule 15(5) along with original statement of confession. Instead, the accused was sent back to the police custody after recording of his confessional statement. (Para 52)
       Compliance of the guidelines issued in Kartar Singh (supra) was not mandatory as they were not incorporated in the Act or in the Rules, nevertheless, if proved to be followed they would have added a ring of credibility to the prosecution story, particularly when he was arrested on 28.4.1995 and there was ample opportunity to do so. (Para 52)
       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 5, 15, 19 — TADA Rules — Rule 15 — Appeal against acquittal — Twelve persons, as A1–A12, were charged and prosecuted for offences u/Ss 120-B, 143, 147 to 149, 302, 307, 392, 397, 379, 468 IPC and u/Ss 3, 5, 6 of TADA Act — All accused persons were members of a criminal gang led by Chota Shakeel who was residing in Dubai and controlling activities of gang members — Criminal conspiracy to eliminate one ‘RN’ who was member of Mumbai Municipal Council — Gruesome murder of ‘RN’ along with the police constable, body guard of deceased — Recovery of firearms from possession of respondent 5 — Confessional statement allegedly made by accused ‘M’ found not voluntary — Designated Court acquitted accused holding that there was insufficient evidence against the 11 accused persons for the offences they were charged with — Whether order of acquittal recorded by the Designated Court in respect of all accused persons except respondent 5 is sustainable — (Yes) — Respondent 5 is held guilty for the offence u/s 5 of the TADA Act.
       Held : The Designated Court on overall consideration of the evidence brought on record in regard to the confessional statement recorded of the accused Mushraf has not found it voluntary. We have been taken through the reasoning given by the Designated Court. On considering the evidence independently and legal provisions, we are of the view that the Designated Court has not committed any error in rejecting the confessional statement of accused Mushraf. We do not find that the acquittal of Mushraf is contrary to the established principles of law or that the evidence which has come on record proves the case against Mushraf beyond reasonable doubt for his involvement in the commission of crime. (Para 53)
       (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987 — Section 5 — Arms Rules 1962 — Columns 2 and 3 of Category 1, Category III (a) of Schedule 1 — Possession of arms and ammunition in notified area — Evidence of recovery of .38 revolver and live cartridges — Conviction u/s 5 of TADA Act.
       Held : It is not necessary at all for the prosecution to prove the ownership of block no. 402, Girnar Building from where the firearm and the live cartridges were recovered. It is sufficient for the prosecution to prove that the accused Gurnamsingh and his close relations were occupants of block no. 402 so as to exclude the possibility of other persons concealing and keeping firearms in the premises of the flat. According to us, the prosecution has proved the seizure of the revolver and the live cartridges from the accused Gurnamsingh. (Para 36)
       Under Section 5 of the TADA Act, any person found in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962 in the notified area, then notwithstanding anything contained in any other law, would be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. As per the Arms Rules, 1962, Schedule I Category III(a), “revolver and pistols” are prohibited arms in the notified area. It is not in dispute that Mumbai is a notified area. The accused Gurnamsingh having been found in possession of .38 revolver, is guilty of offence under Section 5 of the TADA Act. (Para 37)
       (iv) CRIMINAL TRIAL — Appreciation of evidence of witnesses — Approach must be whether evidence of witness read as a whole appears to have a ring of truth — Minor discrepancies on trivial matter not touching core of matter in issue would not ordinarily permit rejection of evidence as a whole.
       Held : While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. (Para 33)

JUDGMENT

P.P. Naolekar, J. — 1. The State of Maharashtra has preferred this appeal under the provisions of Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA Act”) challenging the judgment and order dated 5.10.1995 passed by the Additional Judge, Designated Court for Greater Bombay in TADA Special Case No.10 of 1995.

2. Twelve persons, as accused nos. 1-12, were charged and prosecuted for the offences punishable under Sections 120-B, 143, 147, 148, 149, 302, 302 r/w 120-B, 302 r/w 149, 307 r/w 120-B, 307 r/w 149, 392, 392 r/w 120-B, 392 r/w 149, 397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468 r/w 120-B, 468 r/w 149, 471, 471 r/w 120-B, 471 r/w 149 of the Indian Penal Code, 1860 (for short “IPC”) and under Section 3 r/w 25, 7 r/w 27 (2 and 3) of the Arms Act, 1959 and under Sections 3(2) (i) (ii), 3(3), 3(5), 5 and 6 of the TADA Act by the Designated Court. During the trial before the Designated Court, accused no. 2, viz., Feroz Abdullah Sarguru alias Feroz Konkani escaped from the lawful authority of the police while the trial was still in process and as he was not arrested thereafter the Designated Court neither considered any evidence nor recorded any finding against the absconding accused. The Designated Court held that there was insufficient evidence against the 11 accused persons for the offences they were charged with and they were acquitted, except accused no. 3 Rizwan Mohammad and accused nos. 4-6/originally respondent nos. 3-5/respondent Nos. 1-3 (in the amended cause title) for the offences punishable under Section 5 of the TADA Act and sentenced them to rigorous imprisonment for five years with a fine of Rs. 2,000/- each, in default of which rigorous imprisonment for another six months was imposed. All these four accused persons were also found guilty for the offences punishable under Section 3 r/w Section 25 and Section 7 r/w Section 27 of the Arms Act. But, in view of the sentence awarded, separate sentence was not awarded under these Sections. The State has challenged the acquittal of 11 persons of the charges not found proved by the Designated Court. During the pendency of the proceedings before this Court, the appeal as regards accused Abdullah Rahman alias Hamza, Mohd. Harun and Azim Sardar Khan, who were originally respondent nos. 1, 9 and 10 before us, was dismissed for non-compliance of this Court’s order dated 23.8.2002, with respect to furnishing the correct and complete addresses of these respondents for issuance of bailable warrants. Similarly, the appeal as regards Rizwan Mohd., who was originally respondent no.2, was dismissed on 27.2.2004 for non-compliance of this Court’s Order dated 8.2.1999 regarding issuance of bailable warrants. Hence, we have before us respondent nos. 1, 2, 3, 4, 5, 6 and 7 who were originally respondent nos. 3, 4, 5, 6, 7, 8 and 11 whose names are : Siraj Ahmed Nisar Ahmed Khan, Mohamed Firoz Ayub Khan, Rafiq Latif Sheikh, Shafiq Latif Sheikh, Gurnamsingh alias Chotu, Salim Karim Dingaonkar, Mohamed Mushraf Hussain Shiekh.

Factual Matrix

3. The factual matrix as per the prosecution’s version and the evidence led by the prosecution in the relevant background to prove the alleged conspiracy and the commission of the offences the accused charged for, is as follows: That all the accused persons were members of the criminal gang led by Chota Shakeel who was residing in Dubai and was controlling the activities of the gang members from that place. In or around 1994, a decision was taken by Chota Shakeel to eliminate one Ramdas Nayak who was the member of Mumbai Municipal Council. Accordingly, he disclosed his plan and directed Sajid to make necessary arrangements to give effect to the plan. Sajid approached these 12 accused persons and explained to them the directions of their leader and assigned each one of them specific duties. It is alleged that Sajid approached Feroz Konkani (absconding accus

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Judicial Analysis

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2007 Supreme(SC) 659

Cases Referred (6)

Judicial Analysis