2005 Supreme(SC) 985

2005(5) Supreme 414
Supreme Court of India
(From Delhi High Court)
P. Venkatarama Reddi & P.P. Naolekar, JJ.
State (N.C.T. of Delhi) —Appellant
versus
Navjot Sandhu @ Afsan Guru —Respondent
Criminal Appeal Nos. 373-375 of 2004
With
Criminal Appeal Nos. 376-378, 379-380 and 381 of 2004
All Decided on 4-8-2005
Counsel for the Parties :
For the Appearing Parties : Gopal Subramanium, Shanti Bhushan, Shushil Kumar, Ram Jethmalani, Sr. Advocates, Mukul Gupta, Mrs. Mukta Gupta, Siddharth Agarwal, Raj Shekhar Rao, Satyakam, Dayan Krishnan, Ankur Jain, Ashish Jain, Ms. Nitya Ramakrishnan, Salar N. Khan, Sanjay K. Pathak, Ms. Mini Kaushik, Ms. Anitha Shenoy, Ms. Kamini Jaiswal, Arvind Nigam, Ms. Lata Krishnamurti, Ms. Nandita Haksar, Ms. P.R. Mala, R. Anand Padmanabhan, A. Dasharatha, S. Balaji Srinivasan, Pramod Dayal, Naveen R. Nath, Mrs. Lalit Mohini Bhat, Ms. Hetu Arora, Ms. Shomila Bakshi, Ms. Inklee Barooah, Saqib, Adolf Mathew, Ms. Amritha Sarayoo, Vinay Arora, Advocates.

Very Important Points
1. The very idea of attacking and overpowering the Parliament House complex, a sovereign democratic institution by using power­ful arms and explosives and imperiling the safety of a multitude of peoples’ representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity, a classic ­example of rarest of rare cases deserving death sentence.2. Mohd. Afzal, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct, deser­ving the death sentence.3. The statement forming part of the confessional statement made to the police officer u/s 32(1) of POTA cannot be pressed into service by the prosecution against the other co-accused.

Headnote:Indian Penal Code, 1860—Sections 121, 121A, 122, 123, 120B rw/s 302, 307/120B—POTA—Section 3(2), 3(3), 3(4) and 3(5)—Explosive Substances Act—Sections 3 and 4—Conspiracy to commit terrorist act—Attack on Parliament House—Five persons entered the Parlia­ment House complex in a white ambassador car with VIP red light, heavily armed with automatic assault rifles, pistols, hand and rifle grenades, electronic detonators, spare ammunition, explo­sives made with enormous quantity of ammonium nitrate—These terrorists unable to get free and easy access to the Parliament House building as Vice President’s carcade was blocking the circular road outside the Parliament—Attack was failed due to immediate reaction of security personnel present at the spot—Fierce gun battle—Five assailants were killed—Nine per­sons including eight security personnel lost their lives in the attack—Recovery of six fake identity cards and two paper slips containing five mobile phone numbers—Persons who were conversing with deceased terrorists were traced as A1, Mohd. Afzal, A2 Shaukat and A3 SAR Gilani—Interception of telephone call re­vealed female voice of A4, wife of A2—A4 on interrogation dis­closed that deceased terrorists gave Rs. 10 lac and laptop compu­ter to A2 and asked him to go to Srinagar in a truck alongwith A1—Srinagar Police was successful in apprehending A1 and A2 while they were in the truck belonging to A4—They made disclo­sure statements in relation to their role in the conspiracy—They led the police to various hideouts where 5 terrorists stayed—Recovery of explosives—Designated Special Court convict­ed three accused, Mohd. Afzal, Shaukat and Gilani for offences under Sections 121A, 122, Section 120B rw/s 302 IPC and Section 307/120B IPC and also u/s 3 POTA—A4 was convicted u/s 123 IPC only—Death sentences were imposed on three accused—Appeal—High Court confirmed death sentence on A1 and A2—SAR Gilani (A3) and A4 were acquitted of all the charges—Supreme Court confirms death sentence of A1, Mohd. Afzal—A2 is convicted u/s 123 IPC with sentence of 10 years and to pay a fine of Rs. 25,000/—Appeals filed by State against acquittal of A3 and A4 are dismissed.

       Held : This unprecedented event bewil­dered the entire nation and sent shock waves across the globe. In the gun battle that lasted for 30 minutes or so, these five terrorists who tried to gain entry into the Parliament when it was in session, were killed. Nine persons including eight securi­ty personnel and one gardener succumbed to the bullets of the terrorists and 16 persons including 13 security men received injuries. The five terrorists were ultimately killed and their abortive attempt to lay a seize of the Parliament House thus came to an end, triggering off extensive and effective investigations spread over a short span on 17 days which revealed the possible involvement of the four accused persons who are either appellants or respondents herein and some other proclaimed offenders said to be the leaders of the banned militant organization known as “Jaish-E-Mohammed”. After the conclusion of investigation, the investigating agency filed the report under Section 173 Cr.P.C. against the four accused persons on 14.5.2002. Charges were framed under various sections of Indian Penal Code (for short `IPC’), the Prevention of Terrorism Act, 2002 (hereinafter re­ferred to as `POTA’) and the Explosive Substances Act by the designated Court. The designated Special Court presided over by Shri S.N. Dhingra tried the accused on the charges and the trial concluded within a record period of about six months. 80 witness­es were examined for the prosecution and 10 witnesses were exam­ined on behalf of the accused S.A.R. Gilani. Pelthora of docu­ments (about 330 in number) were exhibited. The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani were convicted for the offences under Sections 121, 121A, 122, Section 120B read with Sections 302 & 307 read with Section 120-B IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of POTA and Sections 3 & 4 of Explosive Substances Act. The accused 1 & 2 were also convicted under Section 3(4) of POTA. Accused No. 4 namely Navjot Sandhu @ Afsan Guru was acquitted of all the charg­es except the one under Section 123 IPC for which she was con­victed and sentenced to undergo R.I. for five years and to pay fine. Death sentences were imposed on the other three accused for the offence under Section 302 read with Section 120-B IPC (it would be more appropriate to say— Section 120-B read with Sec­tion 302 IPC) and Section 3(2) of POTA. They were also sentenced to life imprisonment on as many as eight counts under the provi­sions of IPC, POTA and Explosive Substances Act in addition to varying amounts of fine. The amount of Rs. 10 lakhs, which was recovered from the possession of two of the accused, namely, Mohd. Afzal and Shaukat Hussain, was forfeited to the State under Section 6 of the POTA. (Para 1)

       The Division Bench of High Court, speaking through Pradeep Nandrajog, J. by a well considered judgment pronounced on 29.10.2003 dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru and confirmed the death sentence imposed on them. The High Court allowed the appeal of the State in regard to sentence under Section 121 IPC and awarded them death sentence under that Section also. The High Court allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and acquitted them of all charges. This judgment of the High Court has given rise to these seven appeals—two appeals preferred by Shaukat Hussain Guru and one appeal preferred by Mohd. Afzal and four appeals preferred by the State/Government of National Capital Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot Sand­hu. It may be mentioned that the accused Mohd. Afzal and Shaukat Hussain Guru are related, being cousins. The 4th accused Navjot Sandhu @ Afsan Guru is the wife of Shaukat Hussain. The third accused S.A.R. Gilani is a teacher in Arabic in Delhi University. It is he who officiated the marriage ceremony of Shaukat Hussain Guru and Navjot Sandhu who at the time of marriage converted herself to Islam. (Para 2)

       We dismiss the appeal filed by Mohd. Afzal and the death sentence imposed upon him is hereby confirmed. The appeal of Shaukat is allowed partly. He stands convicted under Section 123 IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs. 25,000/- and in default of payment of fine he shall suffer RI for a further period of one year. His conviction on other charges is hereby set aside. The appeals filed by the State against the acquittal of S.A.R. Gilani and Afsan Guru are hereby dismissed. (Para 22)

       As rightly observed by the High Court it shows that “Shaukat and Afsan were talking between the lines. Afsan was scared.” An inference can be drawn that she was concerned about the safety of Shaukat and that she was aware that Shaukat and Afzal did something that attracted police surveillance. But from this circumstance alone, no inference can be drawn with a reasonable degree of certainty that she was having knowledge of the plan to attack the Parliament before it happened. The scanty evidence on record does not justify her conviction either on the charges framed against her or under Section 123 IPC for which she was held guilty by the trial Court. The High Court’s view is unexceptionable. (Para 21)

       There is nothing to show that the information furnished by Gilani led to the discovery of facts such as identification of the deceased terrorists, recovery of chemicals, police uniforms etc., at the hideouts. That was all done on the basis of informations furnished by other accused. There is no inextricable link between the alleged informations furnished by Gilani and the facts discovered. None of the investigating officers deposed to the effect that on the basis of information furnished by Gilani, any incriminating articles were recovered or hideouts were discovered. On the other hand, the evidence discloses the supervening informations which led the I.Os. to discover the things. (Para 20)

       The last circumstance which needs to be discussed is about the telephonic conversation between Gilani and his brother Shah Faizal on the 14th December 2001 at 12.22 hours. His brother Shah Faizal examined as D.W.-6, spoke from Baramullah/Srinagar, which was intercepted and recorded on tape, Ex.P.W. 66/1, which conversation was admitted. The dispute is only about the interpretation of certain words used in that phone conversation. The conversation was in Kashmiri language, which was translated into Hindi by P.W.-71, a young man whose educational qualification was only V standard. As it was an ordinary colloquial conversation, there is no difficulty in the speech being translated by a less educated person. As against this translation, the defense version of translation was given by D.Ws.-1 & 2. (Para 20)

       At the same time, in view of the discrepant versions, on an overall consideration, we are not inclined to disturb the finding of the High Court. However, we would like to advert to one disturbing feature. Gilani rejoiced and laughed heartily when the Delhi event was raised in the conversation. It raises a serious suspicion that he was approving of the happenings in Delhi. Moreover, he came forward with a false version that the remark was made in the context of domestic quarrel. We can only say that his conduct, which is not only evident from this fact, but also the untruthful pleas raised by him about his contacts with Shaukat and Afzal, give rise to serious suspicion at least about his knowledge of the incident and his tacit approval of it. At the same time, suspicion however strong cannot take the place of legal proof. Though his conduct was not above board, the Court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt. (Para 20)

       (ii) Prevention of Terrorism Act, 2002—Sections 2(h) and 50—Constitution of India—Articles 239 and 239AA—Crimnal Proce­dure Code, 1973—Section 196—Sanction of Central Government or State Government—Lt. Governor of Delhi is competent authority to grant sanction u/s 50 of POTA by virtue of legislative fiction created by Section 2(h) read with Article 239 of the Constitu­tion. (Para 5)

       (iii) Prevention of Terrorism Act, 2002—Sections 3, 4, 5, 45, 50 and 52—Indian Penal Code, 1860—Section 120B rw/s 302—Conspira­cy to commit terrorist attack of Parliament House—Prosecution of appellants on basis of evidence collected through interception of telephone—Whether addition of offences under Sections 3, 4 and 5 of POTA was justified—(Yes). (Para 6)

       (iv) Evidence Act, 1872—Sections 17, 23, 24 to 30—Confessions—Law regarding—Confessions are considered highly reliable—Evidentiary value of confessions which are retracted.

       Held : It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Section 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any induce­ment, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The ex­pression ‘appears’ connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer. Confessions leading to discovery of fact which is dealt with under Section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by Section 30. Briefly and broadly, this is the scheme of the law of evidence vis-a-vis confessions. (Para 8)

       Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. “Deliberate and voluntary confessions of guilt, if clearly prove are among the most effec­tual proofs in law”. (vide Taylor’s Treatise on the Law of Evi­dence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confes­sion. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from considera­tion. So also the ­authority recording the confession - be it a Magistrate or some other statutory func­tionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the ac­cused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer. Section 164 of Cr.P.C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police. (Para 8)

       The crucial expression used in Section 30 is “the Court may take into consi­deration such confession”. These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. (Para 8)

       (v) Prevention of Terrorism Act, 2002—Sections 32, 50 and 52—Confessions under POTA—Reception of confessional statements made to the police—Safeguards to the accused—Confession of co-accused—Admissi­bility—Nature of corroboration required —Whether Section 32(1) of POTA takes within its sweep confession of co-accused.­

       Held : By this provision, the ban against the reception of confessional statements made to the police is lifted. That is why the non-obstante clause. This sub-section is ­almost identical to Section 15(1) of TADA excepting that the words “or co-accused, abettor or conspirator occurring after the expression “in the trial of such person” were omitted. The other four sub-sections (2) to (5) of Section 32 are meant to provide certain safeguards to the accused in order to ensure that the confession is not extracted by threat or inducement. Sub-section (2) says that the police officer, before recording a confession should explain in writing to the person concerned that he is not bound to make a confession and that the confession if made by him can be used against him. The right of the person to remain silent before the police officer called upon to record the confession is recognized by the proviso to sub-section (2). Sub-section (3) enjoins that the confession shall be recorded in a threat-free atmosphere. Moreover, it should be recorded in the same language as that used by the maker of the confession. The most important safeguard provided in sub-section (3) & (5) is that the person from whom the confession was recorded is required to be produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48 hours, together with the original statement of confession in whatever manner it was recorded. The CMM or the CJM shall then record the statement made by the person so produced. If there is any complaint of torture, the police shall be directed to produce the person for medical examination and thereafter he shall be sent to the judicial custody. (Para 8)

       While we agree with the proposition that the nature of corrobora­tion required both in regard to the use of confession against the maker and the co-accused is general in ­nature, our remarks made earlier in relation to the confession against the maker would equally apply to proposition No. (iii) in so far as it permits the Court in an appropriate case to base the conviction on the confession of the co-accused without even general corroboration. We would only add that we do not visualize any such appropriate case for the simple reason that the assurance of the truth of confession is inextricably mixed up with the process of seeking corroboration from the rest of the prosecution evidence. We have expressed our dissent to this limited extent. In the normal course, a reference to the larger Bench on this issue would be proper. But there is no need in this case to apply or not to apply the legal position clarified in proposition No. (iii) for the simple reason that the trial court as well as the High Court did look for corroboration from the circumstantial evidence relating to various facts narrated in the confessional statement. Perhaps, the view expressed by us would only pave the way for a fresh look by a larger Bench, should the occasion arise in fu­ture. (Para 9)

       Section 32(1) of POTA which makes the confession made to a high ranking police officer admissible in the trial does not say anything explicitly about the use of confession made by co-accused. The words in the concluding portion of Section 32(1) are: “shall be admissible in the trial of such person for an offence under this Act or rules made thereunder.” (Para 10)

       We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confessions of the 1st and 2nd accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Indian Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here. (Para 10)

       As the law now stands, the confession recorded by the police officer under Section 32(1) of POTA is admissible in evidence. The voluntariness and reliability of confession can of course be tested by the court. The admission of such confession would also be subject to the observance of the other provisions of Section 32 of POTA which are in the nature of procedural safeguards aimed at ensuring that the confessions are made by the accused in an atmosphere free from threat and inducement. (Para 10)

       (vi) Evidence Act, 1872—Sections 10 and 30—POTA—Section 32—Confession of accused which cannot be proved against a co-accused either u/s 32(1) of POTA or u/s 30 Evidence Act—Whether would be relevant evidence against the co-accused in the conspir­acy by reason of Section 10 of the Evidence Act—(No).

       Held : The law is thus well settled that the statements made by the conspirators ­after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, because by that time the conspiracy would have ended. If so, the statement forming part of the confessional statement made to the police officer under Section 32(1) of POTA cannot be pressed into service by the prosecution against the other co-accused. Thus, the endeavour to bring the confessional statement of co-accused into the gamut of evidence through the route of Section 10 is frustrated by a series of decisions, starting from Mirza Akbar’s case (1940). (Para 11)

       (vii) Evidence Act, 1872—Section 27—Discovery evidence—Admis­sibility —Scope of Section 27—Only that piece of information, which is distinctly supported by confirmation, is rendered rele­vant and admissible u/s 27 of the Act.

       Held : There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police­ Officer chooses not to take the informant-accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence. (Para 13)

       (viii) Evidence Act, 1872—Sections 65B and 63—Call details of mobile phones—Proof and authenticity—Printouts taken from computers/servers by mechanical process—Whether can be led into evidence—(Yes)—There is no bar to adducing secondary evidence under Sections 63 and 65 of Evidence Act.

       Held : It is the contention of the learned counsel that in the absence of a certificate issued under sub-Section (2) of Section 65B of the Evidence Act with the particulars enumerated in clauses (a) to (e), the information contained in the electronic record cannot be adduced in evidence and in any case in the absence of examination of a competent witness acquainted with the functioning of the computers during the relevant time and the manner in which the printouts were taken, even secondary evidence under Section 63 is not admissible. (Para 15)

       According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65. (Para 15)

       (ix) Prevention of Terrorism Act, 2002—Sections 36 to 48—Interception of phone calls—Pre-requisite conditions for admitting the evidence.

       Held : The legality and admissibility of intercepted telephone calls arises in the context of telephone conversation between Shaukat and his wife Afsan Guru on 14th December at 20:09 hrs and the conversation between Gilani and his brother Shah Faizal on the same day at 12:22 hrs. Interception of communication is provided for by the provisions contained in Chapter V of the POTO/POTA which contains Sections 36 to 48. The proviso to Section 45 lays down the pre-requisite conditions for admitting the evidence collected against the accused through the interception of wire, electronic or oral communication. Chapter V governing the procedure for interception and admission of the intercepted communications pre-supposes that there is an investigation of a terrorists act under the POTA has been set in motion. (Para 16)

       (x) Prevention of Terrorism Act, 2002—Sections 32 and 52—Obligations cast on police officer by sub-sections (2) and (4) of Section 52—Effect of non-compliance—Does it have a bearing on voluntariness and admissibility of the confession recorded u/s 32(1)—Should these safeguards envisaged in Section 52(1) be telescoped into Section 32 of the Act—(No).

       Held : In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-Sections (2) to (4) of Section 52 will be one of the relevant factors that would weigh with the Court to act upon or discard the confession. To this extent they play a role vis-a-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-Sections (2) to (5) of Section 32. (Para 17)

       The more important violation of the procedural safeguards lies in the breach of sub-Section (2) read with sub-Section (4) of Section 52. It is an undisputed fact that the appellants were not apprised of the right to consult a legal practitioner either at the time they were initially arrested or after the POTA was brought into picture. We may recall that the POTA offences were added on 19th December and as a consequence thereof, investigation was taken up by PW80-an Asst. Commissioner of Police, who is competent to investigate the POTA offences. But, he failed to inform the persons under arrest of their right to consult a legal practitioner, nor did he afford any facility to them to contact the legal practitioner. The opportunity of meeting a legal practitioner during the course of interrogation within closed doors of ­police station will not arise unless a person in custody is informed of his right and a reasonable facility of establishing contact with a lawyer is offered to him. If the person in custody is not in a position to get the services of a legal practitioner by himself, such person is very well entitled to seek free legal aid ­either by applying to the Court through the police or the concerned Legal Services Authority, which is a statutory body. Not that the police should, in such an event, postpone investigation indefinitely till his request is processed, but what is expected of the ­police officer is to promptly take note of such request and initiate immediate steps to place it before the Magistrate or Legal Services Authority so that at least at some stage of interrogation, the person in custody would be able to establish contact with a legal practitioner. But, in the instant case, the idea of apprising the persons arrested of their rights under sub-Section (2) and entertaining a lawyer into the precincts of the police station did not at all figure in the mind of the investigating officer. (Para 18)

       The breach of the obligation of another provision, namely, sub-Section (3) of Section 52 which is modelled on D.K. Basu’s guidelines has compounded to the difficulty in acting on the confession, Section 52(3) enjoins that the information of arrest shall be immediately communicated by the Police Officer to a family member or in his absence, to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the Police Officer under the signature of the person arrested. PW80–the I.O. under POTA merely stated that “near relatives of the accused were informed about their arrest as I learnt from the record”. He was not aware whether any record was prepared by the Police Officer arresting the ­accused as regards the information given to the relatives. (Para 18)