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CASE NO.: Appeal (crl.)  757 of 2007

PETITIONER: Afzalkhan @ Babu Murtuzakhan Pathan

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 17/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 757 OF 2007 [Arising out of S.L.P.(Crl.) No. 754 of 2007] WITH CRIMINAL APPEAL NO.     758                 OF 2007 [Arising out of S.L.P.(Crl.) No. 6509 of 2006]

S.B. Sinha, J.

1.      Leave granted.          2.      These appeals arise out of the judgments and orders dated 8.9.2006 as  also the judgment and order dated 10.8.2006 passed by the High Court of  Gujarat at Ahmedabad in Criminal Appeal No. 334 of 2005 and Criminal  Appeal No.  751 of 2006 respectively whereby and whereunder the bail  petitions filed by both the appellants were dismissed.  A First Information  Report was lodged on or about 4.4.2003 for commission of an alleged  offence under Section 120(B), 121, 121(A), 122 and 123 of the Indian Penal  Code, 1860 and Section 25(1)(b), 25(1)(c), 27 and 29 of the Arms Act in the  D.C.B. Police Station, Ahmedabad.   The names of the appellants, however,  did not figure in the said First Information Report.  The first informant was  one Tarun Kumar Amrutlai Barot, Police Inspector, Ahmedabad Crime  Branch.   An information was received that after the Godhra massacre some  youths from Ahmedabad City had gone to Pakistan for obtaining training for  carrying out terrorist activities with a view to take revenge of loss of lives  and properties caused to the Muslim community in communal riots which  had taken place therein and they have returned back to India after training.   An investigation was carried out.   On the allegations that he was a party to  the conspiracy, Appellant Afzal Khan was arrested on 15.4.2003.   We may  notice that a First Information Report almost on the same terms was  registered in Hyderabad on or about 19.4.2003 wherein also allegations had  been made that a group of boys had gone to Pakistan for terrorist training.   Appellant Saiyed Ejaz Ahmed @ Chota Ejaz who is a resident of Hyderabad  was arrested in connection with the said case on 3.12.2003.   During  investigation of the Ahmedabad case also, Appellant Saiyed Ijaz Ahmed was  arrested by the Gujarat Police on 14.12.2003.   

3.      A chargesheet against the first appellant was filed on 10.9.2003 and a  chargesheet  against the second appellant was filed on 21.1.2004.

4.      In both the cases, confessional statements of various persons accused  of commission of the said offence were recorded.  Pursuant to such  confessional statements of the appellant as also those of the co-accused, a  huge quantity of arm was recovered from the first appellant.  The principal  allegations against the second appellant are that he had gone to Pakistan for  training.  

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5.      It is also not in dispute that the first appellant had moved the learned  Special Judge as also the High Court for grant of bail which had been  rejected.  It now appears that charges have also been framed on 1.12.2005.   6.      Ms. Kamini Jaiswal, learned counsel appearing for the first appellant  and Ms. Lata Krishnamurthy, learned counsel appearing for the second  appellant would inter alia submit that the appellants should have been  enlarged on bail as :- (i)     No overt act has been attributed against them. (ii)    Confessions have been obtained subsequent to their arrest. (iii)   Recovery of any weapon by itself would not lead to any conviction  under TADA.   (iv) Confessions of Mohammed Riyaz @ Goru,  Mohammed Parvez Abdul  Kayyum Shaikh and Mohammed Yunus were recorded on 24.4.2003  in similar language and hence do not inspire confidence. (v)     Purported Confessions of two more accused had been recorded in the  year 2005 alleging that the first appellant had rendered monetary help  to the group was also recorded in similar language.    (vi)    In view of the decisions of this Court in Shaheen Welfare Association  v Union of India and Ors.  [(1996) 2 SCC 616], People’s Union for  Civil Liberties and Another v Union of India [(2004) 9 SCC 580],  State of Maharashtra v Sitaram Popat Vetal and Another [(2004) 7  SCC 521], State (NCT of Delhi) v Navjot Sandhu alias Afsan Guru  [(2005) 11 SCC 600], the appellants are entitled to grant of bail.

7.      Ms. Hemantika Wahi, learned counsel appearing on behalf of the  respondent, on the other hand, brought to our notice that the trial has already  commenced and two witnesses have been examined.  It was pointed out that  as some other co-accused had moved this Court, wherein the original records  had been called for, the designated court could not proceed with the trial, but  as now the original records have since been received by the learned Special  Judge, all endeavours would be made to complete the trial as expeditiously  as possible.

8.      The validity of Terrorist and Disruptive Activities (Prevention) Act,  1987 (TADA) came up for consideration before this Court in Kartar Singh v  State of Punjab [(1994) 3 SCC 569].  Therein inter alia the validity of  provisions in regard to the exceptions made to Sections 25 and 26 of the  Indian Evidence Act by reason thereof had been upheld.  At this stage, it is  not desirable, although called upon to do so by the learned counsel, to go  into the merit of the matter so as to prejudice the case of either of the parties  in the main trial.  The value of a confessional statements made before a high  ranking officer under the Special Acts and the precautions which are  necessary to be taken therefrom which are exceptions to the provisions of  the general statute namely Indian Evidence Act had been considered by this  Court in some of its decisions.  We may notice some of them.  

9.      In Simon and Others v State of Karnataka [(2004) 1 SCC 74], this  Court held:- "22. It is the duty of the recording officer to ensure that the  confession is made voluntarily and out of free will by the  accused without any pressure. Except the omnibus  statement about the general practice which was being  followed by PW 108, there is no evidence of any question  or attempt being made by the officer to satisfy himself that  the confession was being made voluntarily. This factor  becomes, on the facts and circumstances of the case, very  important since immediately after the arrest, the accused  was produced and the person actively associated with the  recording of statement was none other than the  investigating officer who by nature of things is interested  in the success of the prosecution case. Recording of  confessional statement is not a mechanical exercise. A  duty has been cast and considerable amount of confidence  has been reposed in a senior officer under Section 15 of the  TADA Act in giving him the duty to record the confession

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and making such a confession before a police officer  admissible in evidence..."

10.     In S.N. Dube v N.B. Bhoir [(2000) 2 SCC 254], it was held:- "31. As regards the breach of Rule 15(3) it has been  held that Shinde did not write the certificates and the  memorandums in the same form and terms as are  prescribed by that rule. It was submitted by the  learned counsel for the respondents that the  certificates and memorandums have not been recorded  by Shinde in identical terms and as Rule 15 is held  mandatory the trial court was right in holding them  inadmissible for non-compliance with that mandatory  requirement. Therefore, the question to be considered  is whether the certificate and the memorandum are  required to be written by that rule in the same form  and terms. What Rule 15(3)( b ) requires is that the  police officer should certify under his own hand that  "such confession was taken in his presence and  recorded by him and that the record contains a full  and true account of the confession made by the  person".  According to that rule the memorandum should be to  the following effect:  "I have explained to (name) that he is not bound to  make a confession and that, if he does so, any  confession he may make may be used as evidence  against him and I believe that this confession was  voluntarily made. It was taken in my presence and  hearing and recorded by me and was read over to the  person making it and admitted by him to be correct,  and it contains a full and true account of the statement  made by him."  Writing the certificate and making the memorandum  are thus made mandatory to prove that the accused  was explained that he was not bound to make a  confession and that if he made it it could be used  against him as evidence, that the confession was  voluntary and that it was taken down by the police  officer fully and correctly. These matters are not left  to be proved by oral evidence alone. The requirement  of the rule is preparation of contemporaneous record  regarding the manner of recording the confession in  the presence of the person making it. Though giving  of the statutory warning, ascertaining the  voluntariness of the confession and preparation of a  contemporaneous record in the presence of the person  making the confession are mandatory requirements of  that rule, we see no good reason why the form and the  words of the certificate and memorandum should also  be held mandatory. What the mandatory requirements  of a provision are cannot be decided by overlooking  the object of that provision. They need not go beyond  the purpose sought to be achieved. The purpose of the  provision is to see that all formalities are performed  by the recording officer himself and by others to  ensure full compliance with the procedure and  seriousness of recording a confession. We fail to  appreciate how any departure from the form or the  words can adversely affect the object of the provision  or the person making the confession so long as the  court is able to conclude that the requirements have  been substantially complied with. No public purpose  is likely to be achieved by holding that the certificate  and memorandum should be in the same form and

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also in the same terms as are to be found in Rule  15(3)( b ). We fail to appreciate how the sanctity of  the confession would get adversely affected merely  because the certificate and the memorandum are not  separately written but are mixed up or because  different words conveying the same thing as is  required are used by the recording officer.   We hold  that the trial court committed an error of law in  holding that because the certificates and  memorandums are not in the same form and words  they must be regarded as inadmissible. Having gone  through the certificates and the memorandums made  by Shinde at the end of the confessions what we find  is that he had mixed up what is required to be stated in  the certificate and what is required to be stated in the  memorandum. He has stated in each of the certificates  and the memorandums that he had ascertained that the  accused was making the confession willingly and  voluntarily and that he was under no pressure or  enticement. It is further stated therein that he had  recorded the confession in his own handwriting  (except in case of A-7 whose confession was recorded  with the help of a writer). He has also stated that it  was recorded as per the say of the accused, that it was  read over to the accused completely, that the accused  had personally read it, that he had ascertained  thereafter that it was recorded as per his say and that  the confession was taken in his presence and recorded  by him. It is true that he has not specifically stated  therein that the record contains "a full and true  account of the confession made". The very fact that he  had recorded the confession in his own handwriting  would imply that it was recorded in his presence and  was recorded by him. So also when he stated in the  certificates and memorandums that the confession was  recorded as per the say of the accused, that it was read  over to him fully, that the accused himself personally  read it and that he had ascertained that it was recorded  as per his say, that would mean that it contains "a full  and true account of the confession" and that the  contents were admitted by the accused. Thus, while  writing the certificate and the memorandum what  Shinde has done is to mix up the two and use his own  words to state what he had done. The only thing that  we find missing therein is a statement to the effect  that he had explained to the accused that he was not  bound to make a confession and that if he did so the  confession might be used as evidence against him.  Such a statement instead of appearing at the en d of  the confession in the memorandum appears in the  earlier part of the confession in the question and  answer form. Each of the accused making the  confession was explained about his right not to make  the confession and the danger of its being used against  him as evidence. That statement appears in the body  of the confession but not at the end of it. Can the  confession be regarded as not in conformity with Rule  15(3)( b ) only for that reason? We find no good  reason to hold like that. We hold that the trial court  was wrong in holding that there was a breach of Rule  15(3) and, therefore, the confessions were  inadmissible and bad."

11.     In Hardeep Singh Sohal and Ors. v State of Punjab through CBI  [(2004) 11 SCC 612], it was held:-

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"17. Ext. PAA does not contain such a certificate  having been given by PW 34. It is true that PW 34 had  put certain questions to the accused as to whether he  was aware that the statement which he wants to make  could be used against him and on the basis of the same  he will be sentenced. The officer also asked him  whether there is any pressure, fear on him and he  answered in the negative. However, PW 34 did not give  the certificate at the end of the confession. The  certificate should have specifically stated that he had  explained to the person making the confession that he  was not bound to make the confession and, if he does  so, the confession he may make may be used against  him and that he believed that this confession was  voluntarily made and it was taken in his presence and  recorded by him and was read over to the person  making it and admitted by him to be correct, and it  contained a full and true account of the statement made  by him."

12.     Thus, the question as to where irregularity, if any had been committed  in recording the confessional statement of the accused or the same otherwise  would not inspire confidence before a court of law is a matter which in our  opinion would fall for consideration of the learned Trial Judge.                  13.     An irregularity made in recording a statement may be held to be  curable and admissible in evidence.  {See State of Tamil Nadu through  Superintendent of Police CBI/SIT v Nalini and Ors. [A.I.R. (1999)  SC  2640]. 14.     Strongly relying upon the decision of this Court in State (NCT of  Delhi) v Navjot Sandhu [(2005) 11 SCC 600], however, it was submitted  that under a Special Statute like POTA or TADA confession of a co-accused  could not be taken into consideration even for the purpose of Section 30 of  the Indian Evidence Act.  It is not necessary to examine that aspect of the  matter at this stage.  15.     In Navjot Sandhu (supra) this Court held  "39. The crucial expression used in Section 30 is " the  Court may take into consideration such confession"  (emphasis supplied). 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. The import of this  expression was succinctly explained by the Privy Council  in Bhuboni Sahu v. R. 23 in the following words: (AIR p.    260)  "[T]he court may take the confession into consideration  and thereby, no doubt, makes its evidence on which the  court may act; but the section does not say that the  confession is to amount to proof. Clearly there must be  other evidence. The confession is only one element in the  consideration of all the facts proved in the case; it can be  put into the scale and weighed with the other evidence ."    (emphasis supplied)"         However, it was held:- "50. We are, therefore, of the view that having regard to  all these weighty considerations, the confession of a co- accused ought not to be brought within the sweep of  Section 32(1). As a corollary, it follows that the  confessions of the first and second 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 Evidence Act. The reason is that the  confession made to a police officer or the confession

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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 the  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.  

       As at present advised, we need not go into the said question.           16.     We are not oblivious of some of the decisions of this Court that the  Courts should assign reasons while allowing or refusing an application for  bail.  But then it is trite that detailed reasons touching the merit of the matter  should not be given, which may prejudice the accused.  What is necessary is  that the order should not suffer from non-application of mind.   At this stage  a detailed examination of evidence and elaborate documentation of the merit  of the case is not required to be undertaken.   

17.     Ordinarily, a bail application, in a case of this nature, which involves  the security of the State should be rejected.     

18.     Our attention has, however, been drawn to Shaheen Welfare  Association v Union of India and Ors. [(1996) 2 SCC 616], paragraph 13 of  the case reads as under:- "13. For the purpose of grant of bail to TADA  detenus, we divide the undertrials into three ( sic  four) classes, namely, ( a ) hardcore undertrials  whose release would prejudice the prosecution case  and whose liberty may prove to be a menace to  society in general and to the complainant and  prosecution witnesses in particular; ( b ) other  undertrials whose overt acts or involvement directly  attract Sections 3 and/or 4 of the TADA Act; ( c )  undertrials who are roped in, not because of any  activity directly attracting Sections 3 and 4, but by  virtue of Section 120-B or 147, IPC, and; ( d ) those  undertrials who were found possessing incriminating  articles in notified areas and are booked under  Section 5 of TADA."

19.     In Nalini (supra), the learned Judges forming the Division Bench  differed in their opinion as to whether confession of a co-accused would be  admissible as a substantive evidence against another co-accused.  We,  however, at this stage, are not concerned with such a situation.  

20.     In a case of this nature, it is very difficult to say at this stage as to  whether they are parties to the larger conspiracy or not.  In the evidence, it is  alleged that one of the appellants had gone for training to Pakistan, another  had provided money and he had been in possession of a large quantity of  arms.  A strong prima facie case has been made out against the appellants  herein.  Their release at this juncture may hamper the smooth conduct of  trial since main witnesses are yet to be examined.  One of the appellants  hails from a different State.   It may be difficult to secure his presence, if  released on bail at this crucial juncture.   

21.     In this view of the matter, we are of the opinion that the interest of  justice shall be subserved if the learned Designated Judge is directed to  conclude the trial as expeditiously as possible and preferably within six  months from the date of communication of this order.  With this observation,  the appeals are dismissed.