SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S.Chauhan,JJ.
Sanjay Dutt (A-117) — Appellant(s)
versus
The State of Maharashtra,through CBI (STF), Bombay — Respondent(s)
with
Yusuf Mohsin Nulwalla (A-118) — Appellant(s)
versus
The State of Maharashtra,through CBI (STF), Bombay —Respondent(s)
and
Kersi Bapuji Adajania (A-124) — Appellant(s)
versus
The State of Maharashtra,through CBI (STF), Bombay — Respondent(s)
Criminal Appeal No. 1060 of 2007
with
Criminal Appeal No. 1102 of 2007
and
Criminal Appeal No. 1687 of 2007
with
Criminal Appeal No. 596 of 2011
with
Criminal Appeal No. 1104 of 2007
and
Criminal Appeal No. 1026 of 2012
with
Criminal Appeal No. 1001 of 2007
and
Criminal Appeal No. 392 of 2011
Decided on : 21-3-2013

VERY IMPORTANT POINT
It is settled legal position that a confessional statement recorded by a police officer is in fact, substantive evidence, and that the same can be relied upon in the trial of such person or of a co-accused, an abettor or a conspirator, so long as the requirements of Section 15 and of the TADA rules are complied with.
IMPORTANT POINTS
1. It is settled law that a voluntary and free confession, even if later retracted, can be relied upon.
2. It is well settled that confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA.
3. It is settled law that the recoveries made must be found to have been made as a consequence to the statement made by the accused in custody. In other words, if the nexus in between is not established, the said statement made would be inadmissible in evidence.

Headnote:Arms Act, 1959- Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) -Bombay Bomb Blast Case- Bomb explosions took place On 12.03.1993 at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores.- Conviction of appellant Sanjay Dutt under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 for agreeing to keep in his possession and acquiring 3 AK-56 rifles and its ammunition, one 9mm pistol and its cartridges and handgrenades, unauthorisedly, which were part of consignments smuggled into country by Dawood Ibrahim Kaskar and his associates knowingly and intentionally that these were smuggled into the country for the purpose of committing terrorists acts- Appeals against final judgment and order of conviction and sentence by the Designated Court under TADA for the Bombay Bomb Blast Case-Plea of counsel of appellant that reliance on the confessional statement made by A-117 was Impermissible and that contention that judgments of Apex Court have held that the prosecution can rely on the confession of an accused made before a police officer in every case where the accused is charged of a TADA offence, as long as the trial is joint, had been misconceived- Contention of appellant that if the language of the provisions led to a situation that a confession to the police becomes admissible irrespective of the fate of the TADA charge, then it would lead to invidious discrimination between the accused, who were charged but acquitted under TADA along with other offences and those who were accused only of non-TADA offences-Held Confessional statement of A-117 was duly recorded under Section 15 of TADA by PW-193- Appellant (A-117) not only implicated himself in said statement but also amongst others the appellant (A-118)-Said confession had been duly recorded by PW-193 who had proved compliance with the provisions of law while recording the confession-Said confession was a substantive piece of evidence –It is well settled that confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA- Said confessional statement established unauthorized possession of weapons in the notified area of Bombay- Confession of appellant (A-117) was substantiated and corroborated with confession of other co-accused, (A-53), (A-41), (A-89), (A-40), (A-118) and (A-124) - Confessional statements of co-accused clearly established the case against appellant-Sanjay Dutt and also corroborated with each other in material particulars (Paras 20,21,22)

        Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 15 -Confessional statement recorded under Section 15 of TADA -Admissibility-It is clear that a confessional statement duly recorded by a Police Officer is a substantive piece of evidence and the same can be relied upon in the trial of such person or of the co-accused, abettor or conspirator if the requirements of Section 15 of TADA, and the rules framed thereunder are complied with- The police officer, before recording confession, has to observe the requirement of Section 15(2) of TADA- A voluntary and truthful confessional statement recorded under Section 15 of TADA requires no Corroboration- However, as a matter of prudence, the court may look for some corroboration if confession is to be used against co-accused- It is made clear that whether such confession requires corroboration or not is a matter for the court to consider such confession on the facts and circumstances of each case- If the confession made by an accused is voluntary and true, it is admissible against co-accused as a substantive piece of evidence and minor and curable irregularities in recording of confession, such as omission in obtaining the certificate of the competent officer with respect to the confession do not affect the admissibility of said evidence(Para 37)

        Retracted Confessions-Admissibility of- Bombay Bomb Blast Case- Confessional statement of the appellant -Sanjay Dutt (A-117) recorded under Section 15 of TADA -Contention that since confession of appellant -Sanjay Dutt (A-117) had been retracted, hence, it was not trustworthy and it would not be safe to place reliance upon it-Held It is settled law that a voluntary and free confession, even if later retracted, can be relied upon-Even otherwise retraction statement was not made by appellant at the first available opportunity- After recording of his confession, within 10 days, accused was released on bail by High Court, and accused remained free for a considerable period of time- In fact, retractions were made many months after recording of confession –Hence held confession in the instant case was truthful and voluntary and had been recorded after strictly following the law and prescribed procedure, the subsequent retraction and denial of such confessional statements in the statement of the accused under Section 313 was only as a result of an afterthought (Paras 38,39,42)

        Bombay Bomb Blast Case- Conviction of appellant Sanjay Dutt under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 - Appeals against final judgment and order of conviction and sentence by the Designated Court under TADA for the Bombay Bomb Blast Case- Confessional statement of the appellant -Sanjay Dutt (A-117) recorded under Section 15 of TADA –Contention that there was no sufficient corroboration of confessional statements made by accused-Held corroboration could be found in the case at hand, both in the nature of substantive evidence in the form of the confessions of co-accused, as well as in the oral testimony of witnesses, including the eye witnesses to the incident who identified the appellant-Sanjay Dutt (A-117), as well as the co-accused persons, viz., A-41 and A-53-- Apart from the evidence contemporaneous to the arrest of said three accused and the recovery made from A-124 and subsequent recovery at the instance of A-124 from A-120, were also held relevant -Sequence of events after arrest of Sanjay Dutt till recovery of pistol from A-120, formed part of an unbroken chain inseparably connected to each other- No foul play could be assumed in view of the fact that events happened in quick succession one after the other, lending credibility and truthfulness to the whole episode- The role and the part played by A-118 and A-124 was also clear from evidence relied upon by the prosecution in respect of A-117, which corroborated with each other in material particulars and was thus a substantive piece of evidence- Apart from said evidence, involvement and role of appellant in the conspiracy was disclosed by deposition of various prosecution witnesses –Hence held that there was sufficient corroboration of confessional statements made by accused (Paras 56 to 59)

        Probation of Offenders Act- Section 4 - Additional affidavit filed by appellant seeking benefit of section 4 – Appellant contended that he had no previous involvement or conviction prior to one in 1992 which ended in acquittal- Hence according to him, he was not a previous offender or a convict- In the event, this Court releases the appellant on Probation under the provisions of the Probation of Offenders Act, neither any injustice would occasion to anyone as the offence in which he was convicted, was not even a social offence nor any prejudice be caused to the prosecution- He asserted that he was not a habitual offender, and was not likely to commit any offence in future- The TADA Court did not get any opportunity to complain about the conduct of appellant in 19 years- He further submitted that he had also suffered the agony of long trial of 13 ½ (thirteen and a half) years- The stress and trauma of the same, besides the fact that he had carried the tag of an alleged terrorist for 13 ½ (thirteen and a half) years though unwarranted, and had been deprived of the company of his daughter, was a punishment in itself- He also stated that he had suffered mentally, physically and emotionally in the last several years- He also informed this Court that he got married again in the year 2008 and was blessed with two children aged 1 and ½ years and they needed their father’s presence in their life-Held that circumstances and the nature of the offence as analysed were so serious that they did not warrant A-117 benefit of the provisions of the Probation of Offenders Act- However, taking note of various aspects, sentence reduced to minimum period, viz., 6 years to 5 years- Appeal disposed of (Para 86)

        Probation of Offenders Act- Section 4 -Scope and ambit of-Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or above the age of 21 years- This section is intended to attempt possible reformation of an offender instead of inflicting upon him the normal punishment of his crime- It is settled law that while extending benefit of the said provision,this Court has to exercise its discretion having regard to the circumstances in which the crime was committed, viz., the age, character and antecedents of the offender- It is also settled law that such exercise of discretion needs a sense of responsibility- The section itself is clear that before applying the same, this Court should carefully take into consideration the attendant circumstances (Para 85)

        Bombay Bomb Blast Case- Bomb explosions took place On 12.03.1993 at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores.- Appeals against final judgment and order of conviction and sentence by the Designated Court under TADA for the Bombay Bomb Blast Case-In respect of A-118, conviction and sentence awarded to him by Designated Court confirmed- Insofar as A-124 was concerned, the Designated Court had convicted him under Sections 3 and 7 read with Sections 25(1-A)(1-B)(a) of the Arms Act, 1959, as well as under Section 201 of IPC and sentenced him to undergo RI for 2 years on both the counts separately- A perusal of all the materials relating to A-124 showed that the Designated Court itself convicted and sentenced him under Section 25(1-B)(a) of the Arms Act along with Section 201 of IPC. - While clarifying the same, held that there was no substantive evidence for convicting him under Section 25(1-A) of the Arms Act, though the Designated Court had referred to the same while awarding sentence to him- Also, considering his age, i.e. 82 years as on date and taking note of the fact that the minimum sentence for the offence under Section 25(1-B)(a) being one year, while confirming his conviction, sentence awarded to A-124 under Section 25(1-B)(a) as well as under Section 201 IPC reduced to 1 year (Paras 87,88)

        Bombay Bomb Blast Case- Bomb explosions took place On 12.03.1993 at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores.- Acquittal of (A-120) by the Designated Court under TADA for the Bombay Bomb Blast Case-Appeal against acquittal-No dispute that A-120 had not made any confession and his co-accused A-125 relied on by the prosecution had also not made any confession and even the confessional statements of other co-accused failed to disclose any involvement of A-120 in any manner- The only allegation against (A-120) was that of seizure of a box containing a pistol from his house- The Designated Court, after considering the evidence of panch witness (PW-211) regarding the statement made by A-125 and after finding that there was lot of variation in their statements and bereft of materials about the role of A-120 and further finding that different stories had been projected by the prosecution, refused to accept the same- After analyzing the entire statement of A-125, the trial Court came to a conclusion that the same are insufficient to connect A-120 as being the person who had received the same pistol and rounds-Mere recoveries of a .9mm pistol and the rounds from the bungalow of A-120 held not sufficient to connect him with said articles- It is settled law that the recoveries made must be found to have been made as a consequence to the statement made by the accused in custody- In other words, if the nexus in between is not established, the said statement made would be inadmissible in evidence-No interference called for with order of acquittal passed by Designated Court-Appeal filed by CBI dismissed (Paras 94 to 96)

        Bombay Bomb Blast Case- Bomb explosions took place On 12.03.1993 at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores.- A common charge of conspiracy was framed against all the co-conspirators whose object was to commit terrorist acts in India and to achieve the objectives of the conspiracy, all co-conspirators agreed to smuggle fire-arms, ammunition, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst themselves for the purpose of committing terrorist acts and that on 12.03.1993 all coconspirators were successful in causing bomb explosions at various places in Bombay- - Conviction of A-53 by Designated Court -Appeal against conviction- Evidence on record that appellant was closely associated with Tiger Memon and Anees Ibrahim Kaskar (AA)-Further, inspite of the unwillingness shown by his partner - (A-40), the appellant helped the co-accused searched for garages where the weapons were to be off-loaded and concealed whereafter they were to be distributed to A-117 and other persons- In addition to the same, appellant was also associated with co-accused even after the blasts which fact was clearly discernible from the confession of A-96 wherein she stated that after coming back to her house, her father informed her that owner of Magnum Videos (A-53) had come and gave Rs. 50,000/- for help-Taking note of the fact that CBI was not able to establish the charge relating to major conspiracy and also that out of the period of 9 years, A-53 had served nearly six and a half years of sentence and in the light of the ailments and taking note of the fact that the minimum sentence prescribed is 5 years, while confirming the conviction, sentence reduced to the period already undergone (Paras 106 to 112)

       Facts of the Case :

        Bomb explosions took place On 12.03.1993 at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores. Appellant Sanjay Dutt was convicted herein in the instant case under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 for agreeing to keep in his possession and acquiring 3 AK-56 rifles and its ammunition, one 9mm pistol and its cartridges and handgrenades, unauthorisedly, which were part of consignments smuggled into country by Dawood Ibrahim Kaskar and his associates knowingly and intentionally that these were smuggled into the country for the purpose of committing terrorists acts.

        B. Present Appeals have been filed against final judgment and order of conviction and sentence by the Designated Court under TADA for the Bombay Bomb Blast Case. Contention of appellant that if the language of the provisions led to a situation that a confession to the police becomes admissible irrespective of the fate of the TADA charge, then it would lead to invidious discrimination between the accused, who were charged but acquitted under TADA along with other offences and those who were accused only of non-TADA offences.

       Findings of the Court :

        A.Confessional statement of A-117 was duly recorded under Section 15 of TADA by PW-193. Appellant (A-117) not only implicated himself in said statement but also amongst others the appellant (A-118).Said confession had been duly recorded by PW-193 who had proved compliance with the provisions of law while recording the confession. Said confession was a substantive piece of evidence .It is well settled that confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA. Said confessional statement established unauthorized possession of weapons in the notified area of Bombay. Confession of appellant (A-117) was substantiated and corroborated with confession of other co-accused, (A-53), (A-41), (A-89), (A-40), (A-118) and (A-124) . Confessional statements of co-accused clearly established the case against appellant-Sanjay Dutt and also corroborated with each other in material particulars.

        B.Held corroboration could be found in the case at hand, both in the nature of substantive evidence in the form of the confessions of co-accused, as well as in the oral testimony of witnesses, including the eye witnesses to the incident who identified the appellant Sanjay Dutt (A-117), as well as the co-accused persons, viz., A-41 and A-53. Apart from the evidence contemporaneous to the arrest of said three accused and the recovery made from A-124 and subsequent recovery at the instance of A-124 from A-120, were also held relevant .Sequence of events after arrest of Sanjay Dutt till recovery of pistol from A-120, formed part of an unbroken chain inseparably connected to each other. No foul play could be assumed in view of the fact that events happened in quick succession one after the other, lending credibility and truthfulness to the whole episode. The role and the part played by A-118 and A-124 was also clear from evidence relied upon by the prosecution in respect of A-117, which corroborated with each other in material particulars and was thus a substantive piece of evidence. Apart from said evidence, involvement and role of appellant in the conspiracy was disclosed by deposition of various prosecution witnesses .Hence held that there was sufficient corroboration of confessional statements made by accused.

        C. Even though Additional affidavit was filed by appellant seeking benefit of section 4 of Probation of Offenders Act the Court held that circumstances and the nature of the offence as analysed were so serious that they did not warrant A-117 benefit of the provisions of the Probation of Offenders Act. However, taking note of various aspects, sentence was reduced to minimum period, viz., 6 years to 5 years.