REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2008 (Arising out of SLP (Crl.) No. 4876 of 2006

               Gulam Mohd. @ Gulal Shaikh ...Appellant

Versus

State of Gujarat     ...Respondent

J U D G M E N T   

Dr. ARIJIT PASAYAT, J

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Gujarat High Court dismissing the Criminal Appeal No.1704 of 2004.

Challenge before the High Court was to the order passed by learned Special

Judge, POTA, Ahmedabad in Criminal Miscellaneous Application No.2219

of  2004  in  connection  with  I.C.R.  No.6  of  2003  of  DCB Crime  Police

Station,  Ahmedabad  City  (presently  numbered  as  POTA Case  NO.12  of

2003).  

3. The background facts in a nutshell are as follows;

An  application  in  terms  of  Section  439  of  the  Code  of  Criminal

Procedure,  1973 (in  short  ‘Cr.P.C.’)  and Section 49 of the Prevention of

Terrorism Act, 2002 (in short ‘POTA’) was filed. The applicant is facing

trial for alleged commission of offences punishable under Sections 120-B,

121, 121A, 122, 123 of the Indian Penal Code, 1860 (in short ‘IPC’) and

Sections  3(1)(A)(B),  3(3),  4,  20,  21(2)  B,  22(3)(A)(B)  of   POTA  and

Sections 25 (1)B, C, 27 and 29 of the Arms Act, 1950 (in short ‘Arms Act’).

According to the applicant, on 3.4.2003 five boys were picked up from a

park  of  Ahmedabad  City  and  on  4.4.2003  first  information  report  was

lodged wherein commission of offences punishable under the POTA were

included.  Case  was  registered  as  CR.No.6  of  2003.  According  to  the

applicant  he was picked up by the Crime Branch and was kept in illegal

custody. Certain news items were published in newspapers on 30.6.2003. It

is pointed out that another co-accused under trial in another case was not

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produced. The counsel appearing for him made a statement before the Court

that he was in illegal custody of Crime Branch. The name of that co-accused

is  Rafiq  and  same  stand  was  taken.  Notice  was  issued  by  the  learned

Additional  Sessions  Judge  fixing  the  date  16.7.2003.  The  appellant  was

shown  to  have  been  arrested  in  the  present  case  on  15.7.2003.  A

confessional statement purported to have been recorded under Section 32 of

POTA on 8.8.2003. The appellant does not know Gujarati  and, therefore,

the question of making a confessional statement does not arise and he did

not sign before the Deputy Commissioner. Though he was produced before

the Magistrate for confirmation in terms of section 32(5) of POTA, he was

remanded  to  judicial  custody.  He  made  a  retraction  from  the  so-called

confession  on  9.8.2003.  It  was  pointed  out  that  the  so-called  confession

under Section  32 of  POTA is  not  admissible as  the provision is  entirely

different from Section 15 of Terrorist and Disruptive Activities (Prevention)

Act,  1987   The  trial  Court  rejected  the  application  prima facie  with  the

following observations:  

“If one looks at the confessional statement of the accused himself  it  provides  sufficient  material  to  prima  facie point out his thick relations with the absconding accused Rasool Khan @ Rasool Party. He not only has provided him huge amount of money time and again but, he has worked  at  his  instance  continuously  and  also  made frantic  hunt  for  renting  a  godown  for  the  purpose  of hiding  the  weapons  which  were  to  be  sent  in  large

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quantity  from  the  time  the  alleged  conspiracy  was hatched.  Till  the  date  of  his  arrest  he  had  been  in constant touch with Rasool Party with whom he appears to  have  talked  even  after  he  left  the  country  to  base himself  at  Pakistan.  His  wife  and  children  with  active connivance  of  this  applicant  accused  could  cross  the border. He had helped him in executing the various tasks in  pursuance  of  the  conspiracy  hatched  and  therefore, even without taking into consideration the confessional statement of others this prima facie sufficiently involves him  to  deny  him  the  bail.  The  statements  of  other witnesses and also of those witnesses who have provided links to the alleged conspiracy also prima facie involve this  applicant  accused  and  therefore,  also  he  does  not deserve the bail. The Court also if looks at statement of Kaleemullah one of the key accused in the instant case who is also an accused in the other matters, his alleged role in the involvement at every stage of conspiracy and for its execution gets prima facie established.  

His past criminal antecedent reflected by him in his  confessional  statement  also  would  not  permit  this Court  to  grant  him the  bail  as  there  would  be  a  fair possibility of his not facing the trial. He may have been a TADA accused and provided with the Regular Bail, but, in every case, the facts will have to be considered from the documents adduced along-with the charge-sheet and moreover, orders of his regular bail in the TADA matters are, not before this Court for it to appreciate anything.”

4. The order of rejection was challenged before the High Court which,

as noted above, dismissed the appeal.

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5. In support of the appeal, learned counsel for the appellant submitted

that  this  Court  has  categorically  held  that  the  confession,  if  any,  under

Section  32  of  POTA made  by  the  co-accused  is  not  admissible.  It  was

submitted that there was retraction from the confession and, therefore, there

was no material before the trial Court to reject the prayer for bail.  

6. Learned counsel for the respondent on the other hand submitted that

the role of the accused is clearly established. His link with the absconding

accused Rasul and Mufti Sufian is clearly established. There was recovery

of country made revolver and live cartridges. It was pointed out that it was

not only the statement recorded under Section 32 of POTA but other factors

like recovery, and antecedents were also taken into consideration.           

7. It also referred to the evidence which indicated that the appellant had

collected money from one Mohd. Saiyed and Tanvir and ultimately handed

over the money to Mufti Sufian and, therefore, it cannot be said that except

the confession under Section 32 of POTA, there is no other evidence.  

8. Two other factors need to be noted. When the appellant was produced

for  confirmation  of  the  so  called  confessional  statement  there  was  no

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allegation that the same was obtained under pressure. It is claimed that there

was  retraction  on  9.8.2003.  If  in  reality  there  was  no  confession,  the

question of any retraction does not arise.  

9. In State (NCT of Delhi) v. Navjot Sandhu  alis Afsan Guru (2005 (11)

SCC 600)  it was noted at para 50 as follows:

“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 made  while  a  person  is  in  policy  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.”

10. Above being the position, we dismiss the appeal. It is, however, to be

noted that learned counsel for the respondent pointed out that the case is at

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the advance stage of trial. It would be proper for the trial Court to conclude

the trial as early as possible.  

11. The appeal fails and is dismissed.  

.………………………...J. (Dr. ARIJIT PASAYAT)

.……………….………..J. (P. SATHASIVAM)

New Delhi, November 11, 2008

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