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PETITIONER: GURDEEP SINGH @ DEEP

       Vs.

RESPONDENT: THE STATE (DELHI ADMN.)

DATE OF JUDGMENT:       17/09/1999

BENCH: K.T.Thomas, A.P.Misra

JUDGMENT:

MISRA, J.

     The  appellant-convict  has filed this appeal  against his  conviction  under Section 302, 324 of the Indian  Penal Code  and  5(a)(b) of the Explosive Substances Act, 1908  by the  Designated  Court No.  III, Karkardooma Courts,  Delhi. He  has  been  sentenced under Section 302 to  undergo  life imprisonment  and  to  pay a fine of Rs.  3 lakhs.   Out  of which  one lakh each is to be paid to the nearest  relatives of  three deceased persons.  In the case of default of  this non-payment,  he  shall also undergo  rigorous  imprisonment (RI)  for  a  further  period of three years.   He  is  also sentenced  RI for a period of three years under Section  324 IPC  with  a  fine  of  Rs.  20,000/-.   Out  of  which  Rs. 10,000/-  each is to be paid to the two injured persons.  In the  case  of  default he has further to undergo  RI  for  a period  of 6 months.  He is also sentenced to undergo RI for two years under Section 9 (b)(2) of the Explosive Substances Act,  1908  with  a fine of Rs.  5,000/-.  In  the  case  of default of this non-payment, he shall further undergo RI for two months.

     In  order  to appreciate issues in the appeal  we  are hereby giving short matrix of facts.

     According to the prosecution case on 6th October, 1990 at  about  6.10 p.m.  a bomb exploded near Chilla  Engulator T  Point killing three persons and injuring two persons at NOIDA  Road near Samachar Apartments.  The deceased  persons were  Prit  Pal Singh, Jaspal Singh and Satish  Bajaj.   The information  about bomb explosion soon thereafter was  given by passerby who informed the nearest Police Control Room van and from where the message was flashed to the Police Control Room.  Om Pal Tanwar, PW 3, received the said message on the said  date  at 6.07 p.m..  Thereafter, Inspector Jeet  Singh Joon,  PW  15,  proceeded to the spot.  He  found  two  dead bodies  lying  on  the spot.  These bodies were  split  into pieces lying on the road and one three wheeler scooter (TSR) was  found  badly  mutilated.   One  cycle  was  also  found similarly.   There were three injured persons lying near the said  spot.  They were removed to JPN Hospital.  One of  the injured,  namely, Satish Bajaj succumbed to his injuries  in the  hospital.  One of the deceased, namely, Prit Pal  Singh was  identified  with the help of his driving licence  which was  in  his pocket.  Since driving licence was  having  his

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photograph  and address, the Investigating Officer was  able to contact his relative, namely, Pragat Singh, who is one of the  accused in this case.  After recording the statement of Pragat  Singh and getting the identification of the deceased persons  the aforesaid three dead bodies were sent for  post mortum.   It is through Pragat Singh that police was able to know   the  involvement  of   Gurdeep  Singh,  the   present appellant.  It is significant that out of the three deceased two,  namely,  Prit Pal Singh and Jaspal Singh were  closely 2elated to the accused Pragat Singh and his wife Balbir Kaur who  was also accused.  The deceased Prit Pal Singh was  the adopted  son  of the accused Pragat Singh and  Balbir  Kaur, while  deceased  Jaspal Singh was the nephew of the  accused Pragat Singh.

     From  the investigation of the police and the evidence led  by  the prosecution, it was revealed that  the  present appellant used to go and stay with Pragat Singh and his wife Balbir Kaur on a number of occasions.  Immediately preceding the  incident  the  appellant again went to  live  with  the family  of  Pragat  Singh since 4.10.1990.  The  bomb  which exploded  was carried by the two deceased, namely, Prit  Pal Singh  and  Jaspal Singh who were destinate to go to  NOIDA. This  bomb  was meant for explosion in a bus and as per  the planning  also  to kill Prit Pal Singh about which the  said two  deceased  were not aware.  This was done in  conspiracy with Balbir Kaur wife of Pragat Singh and hence she was also arrested  on  her return from Jullundhar on  the  8.10.1990. The  appellant  was  a  terrorist who master  minded  a  few earlier and the present explosion.  It is at the instance of the  Pragat  Singh that the present appellant  was  arrested from the House No.  K- 40, Sector 12, NOIDA.

     The  significant part in the present case is, when the present  appellant  was under police custody, the police  of Beether  (Karnataka) sought his custody for investigation in another  case where he was also involved in a bomb explosion in   a  cinema  hall  at   Beether  in  Karnataka.   He  was interrogated  at  Beether by the Superintendent  of  Police, Beether,  PW  13, where he made his  confessional  statement under  Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, hereinafter referred to as the TADA Act.  Therein he admitted his complicity and involvement in the  bomb  explosion  which was carried by him in  Delhi  at NOIDA  Road  killing both Prit Pal Singh and  Jaspal  Singh. Finally,  a  challan  was filed against the  three  accused, namely,  the  present appellant, Pragat Singh and  his  wife Balbir  Kaur.   The  present  appellant  was  charged  under Sections  302, 326, 324, IPC and Section 5 of the  Explosive Substances Act.  Similarly, charges were also framed against the  said  two accused.  The said designated  court  finally acquitted  Balbir  Kaur but convicted the present  appellant and  Pragat  Singh.   The  present appeal  is  only  by  the appellant  Gurdeep  Singh and hence we are not concerned  in this  appeal  with the other accused, namely, Pragat  Singh. The  third  deceased person, viz., Satish Bajaj was  only  a passerby who became victim by chance of this bomb explosion. It  was  also not disputed that there was no eye witness  in the  present  case.  Thus the prosecution case is  based  on circumstantial evidence including the confession made by the appellant.

     According to the Inspector Jeet Singh Joon, PW 15, the Investigating  Officer, he found two dead bodies of Prit Pal Singh  and  Jaspal Singh split into pieces which could  have

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happened  if these two persons were carrying the bomb  which exploded.   Smt.  Kusam, PW 14, is the wife of the  deceased Prit Pal Singh.  According to her statement, her husband was driving  a three wheeler and they were living at a different place but during sometime in September, 1990 they shifted to the  house of accused Pragat Singh and Balbir Kaur who  were her  father-in-law  and mother-in-law respectively.  As  per her  deposition  both deceased persons, Prit Pal  Singh  and Jaspal Singh left the house of accused Pragat Singh 15 to 20 minutes  before the said explosion took place.  Pragat Singh her  father-in-law was also driving a three wheeler.  He had three  daughters.  Though earlier those three daughters gave statements  which  were recorded under Section 164,  Cr.P.C. in  which  they had stated that the appellant used to  visit their  house  they  turned hostile when examined  in  Court. This left the prosecution to strongly rely on the deposition of  Kusam,  PW 14.  She deposed that she saw  the  appellant coming to their house and he was then a clean shaved person. Her  husband  always  objected to Smt.  Balbir Kaur  of  his coming to her house since young daughters were living in the house.   In  spite of all this, she deposed,  the  appellant used  to stay in their house and was coming and going.   The appellant  again  came back on 4.10.1990.  He  continued  to stay  there  for the next three days, i.e., till the day  of incident  and till a few minutes before the said  explosion. She  also told her father-in-law earlier that the  appellant be  asked  to  go  away from here.  On  the  5.10.1990  Smt. Kusam,  PW 14, was to go to the hospital, her  father-in-law took her there and on the way, at Bangala Sahib Gurudwara he purchased  two  plastic cans.  It is alleged that they  were used  in  preparation  of the bomb which exploded.   On  her return by night time, she found that the appellant was still in the house and he stayed over-night and even the next day. On  the fateful day, i.e., next day she saw about 5.30 p.m., the  appellant  brought drinks and was drinking liquor  with her  husband,  father-in-law, deceased Jaspal Singh and  one Kale  (cousin  of deceased Prit Pal Singh).  It was at  this point  that she went to take her bath and on her return  she found that all of them left the house and thereafter, within fifteen  to twenty minutes the bomb explosion took place  in which  her  husband  died.  She also deposed that  when  the appellant  came  to their house he was carrying  a  coloured strips  bag  which later is said to have been given  by  the appellant  to and which was carried by the deceased Prit Pal Singh when the explosion took place.

     Prosecution  in order to establish the antecedents  of the  appellant,  as a terrorist, examined witnesses to  show how  he worked as a granthi (who reads religious books)  and became  a  terrorist.  Avtar Singh, PW 20, stated  that  the appellant was working as Granthi in South Anarkali Gurudwara in  1983 and he continued to be such for two to three years. Similarly,  Kuldeep  Kaur, PW 12, also deposed that  he  was serving  as Granthi in 1984.  She was his landlady as he was in  her  tenancy prior to the year 1984.  At that  time  the appellant was keeping a beard.  The evidence of this witness that  he was having beard and the testimony of Kusam, PW 14, that  when she saw him in September, 1990 as a clean  shaved person  shows  how  the  appellant  brought  change  in  his appearance  along  with  the  change   from  granthi  to   a terrorist.   This  part of prosecution evidence is  used  as corroborative  of  the  confessional statement made  by  the appellant.

     Strong  reliance  is placed by the prosecution on  the

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testimony  of  Raj Shekhar Shetty, PW 13, Superintendent  of Police, Core of Detectives Karnataka.  His testimony reveals that  the appellant was produced before him and he  recorded his  confessional statement, in another case being Crime No. 177  of  1990,  Police Station New Town  Beather,  Karnataka under  Section  15 of the TADA Act.  Before  recording  this confessional  statement he deposed to have complied with all the   requirements  under  law.    This  witness  asked  the appellant  before  recording the confession, whether he  was giving  his confessional statement voluntarily, without  any pressure  from  any body, to which the appellant replied  in affirmative  and  further  said that he wanted to  give  his statement  voluntarily.   He was also forewarned  that  such statement  might be used against him and he was not bound to make  a  confessional statement.  But in spite of  all  such warnings  the  appellant insisted to give  his  confessional statement.   Even thereafter P.W.13 gave the appellant  time for  reflection.   Appellant  was  thereafter  brought  back before  PW 13.  The appellant was again asked whether he was still  willing  to make confessional statement and again  he replied  in  the affirmative.  Thereafter, the  confessional statement was recorded (in Hindi) by PW 13 himself.  Then it was read over to him and he admitted it to be correct and he signed below it.  This witness then gave his endorsement and also  gave his certificate on the last page of the statement as  required  under  law.   A  comprehensive  statement   so recorded  was  sent  in a cover to  Deputy  Commissioner  of Police  of  the  Sessions  Case  with  the  directions  that statement  be  deposited  with   the  court.   The  original statement  recorded  was  placed in the  Sessions  Court  at Beether.  The copy of which is filed in the present case and is  proved  by this witness.  The confessional statement  of the  appellant is Ex.  PZ.  But on account of erratic supply of  electricity  the video recording could not  be  properly done.

     In  his  confessional  statement,   on  which   strong reliance  is  placed  by   the  prosecution,  the  appellant admitted  that he worked as Grandhi in Gurudwaras from  1981 to  1984.  In 1983 he developed friendship with one Kashmira Singh.   In the month of February and March 1983 one Parkash Kaur  friend of Smt.  Balbir Kaur got performed Akhand  Path at  her  residence  with the intention to  get  her  brother Ranjit  Singh  released  from  Jail in the  murder  of  Baba Nirankari.   He performed the same.  Later he at Baba Bakala Gurdwara  came into contact with AISSF leader Sukhwant Singh Atwal  and he joined his group and offered himself to do any work  for the sake of panth.  However, later he was arrested and  detained  under NSA for two years.  Thereafter, he  met one  Bhai Manjeet Singh who appointed him as his body guard. Then  he  again met Parkash Kaur and asked her to find  some place  for  his  hideout in Delhi.  She  introduced  him  to Balbir  Kaur and since thereafter he used to go to her house as hideout in Delhi.  He also stated how he made attempts to come in close contact with hard core terrorists which is not necessary  for  us  to  give in detail for  the  purpose  of disposal  of  this case.  In the confessional statement  the accused  also  disclosed  that  on  6.10.1990,  the  day  of incident,  he handed over a bomb to Prit Pal Singh in a  bag and  told  him  to reach it at NOIDA by a bus.  He  said  he quietly  switched  on a plastic switch of the bomb  so  that bomb  should  explode in the bus after some time.   However, both  deceased  Prit  Pal  Singh and Jaspal  Singh  went  by scooter  instead by bus.  It is also clear that neither Prit Pal  Singh  nor Jaspal Singh were aware of the switch on  of

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the bomb made by the appellant.  The relevant portion of his confession is reproduced below:

     On  23.7.90  I  reached Delhi by train  and  went  to Balbir  Kaurs house.  I called Parkash Kaur there.  Parkash Kaur got annoyed with me after seeing me clean shaven.  Then I  told her about the bomb blast in Bidar and only then  she was  pacified.  Next day I went to Rayya and met with  Fauji and narrated about the bomb blast in Bidar.  In the month of Oct.   on  6th day there was a bomb blast in a TSR on  Delhi Noida  Road which was also caused by me.  In this  explosion Pritapal  Singh @ Bitto and Jaspal Singh @ Kala died.   They were  directed to carry the bomb by bus to Noida so that the bomb  may be exploded but before handing the bomb to them  I secretarly  switched  on  the bomb and it was  done  on  the advice  of  Smt.   Balbir  Kaur.  Balbir  Kaur  had  illicit relations  with  Pritpal  Singh but Pritap  Singh  developed sexual  relations with her younger daughter due to which she got  pregnant  so  she  planned  to  take  revenge  with  my connivance.   I while giving bomb to Pritapal Singh @  Bitto and directing him to reach Noida by bus I wanted to kill two birds with one stone with the connivance of Pargat Singh and his  wife.   But  Jaspal Singh @ Kala got down  from  Pargat Singhs  Auto  and accompanied him.  For reaching  early  to Noida both hired a TSR and thus the bomb exploded on the way as  the  time  had already been fixed  fifteen  minutes  for explosion  and  expired  in this blast.  Thereafter,  I  was arrested  by  Delhi Police and I disclosed the  incident  of Bidar.

     The  prosecution, based on the aforesaid evidence  and the  confessional statement made by the appellant,  strongly defended  the  conviction  passed by the  Designated  Court. Learned  counsel  for  the  respondent,  Mr.   V.N.   Saraf, submits,  the confessional statement by itself under Section 15  of  the  TADA Act is sufficient and  the  appellant  was rightly   convicted  by  the   Designated  Court.   He  also supported  the  findings  of the Designated Court  that  the circumstantial  evidence  proves to the hilt that  appellant had  committed  the  offence.  He further submits  that  the prosecution   witnesses   corroborated    the   confessional statement of the appellant.

     On  the other hand, learned counsel for the appellant, Mr.   PP  Singh,  appearing as Amicus Curaie,  submits  that there  is no corroboration of the prosecution story from the prosecution  witnesses.   Some  of   the  witnesses   turned hostile.   The  only  evidence on which strong  reliance  is placed  by  the  prosecution, i.e.  the  testimony  of  Smt. Kusam,  PW  14, the wife of the deceased Prit Pal Singh,  is neither  useful  for  any corroboration of  the  prosecution story  on  the material particulars nor does it add  to  the chain of circumstances, to prove the guilt of the appellant. Hence  in  a  case of circumstantial  evidence,  unless  the prosecution  establishes  the chain of circumstances  beyond all  reasonable  doubt  no  conviction  can  be  made.   The prosecution  has failed to provide this in the present  case according   to   the  counsel.    With  reference   to   the confessional  statement  the submission is that it  was  not voluntarily  as  it was made under threat.  To  substantiate this he refers to the facts that his confession was recorded by  S.P.   Raj  Shekhar  Shetty,  PW  13,  when  he  was  in handcuffs,  there  was  another policeman in the  same  room holding  the  chain  of his handcuff, and even  outside  the room, in which his confession was recorded, there were armed

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guards.   Such  set  up,  reveals   by  itself  that  threat perception  existed  which was hanging over his  head,  thus such  confession cannot be construed to be a voluntary under section 15 of the TADA Act, contended the counsel.

     This  takes us to the question whether the  confession made  by the appellant under Section 15 of the TADA Act  was voluntary?   It is not in dispute that a confession was made by   the  appellant  before   P.W.13,  Raj  Shekhar  Shetty, Superintendent  of Police (COD) Core of Detecives  Karnataka in  Crime No.  177 of 1990 of Police State New Town Beather, Karnataka.   It is also not in dispute that he followed  the procedure  prescribed  under the TADA Act and  Rules  before recording   the  confession.   He,   before  recording   the confession, explained to the appellant that he was not bound to  make a confession and if he would make, it could be used against him.

     Rule  15  of  the  TADA  Rules,  1987  laid  down  the modalities  as  to  how  a confession  is  to  be  recorded. Sub-Rule  1 of this Rule requires the confession  invariably to be recorded in the language in which it is made and if it is  not practical, in the langauge used by such officer  for official purpose or in the language of the designated court. Sub-rule  2 requires that such recorded confession should be shown,  read  or  played back to such accused who  made  the confession,  as  the  case may be, and in case he  does  not understand  the language in which it is recorded, it has  to be  interpreted to him in the language which he  understands and  thereafter such accused has the liberty to add to  such confession  or  to explain any part of it.  Sub-rule 3  says that  when the confession is recorded in writing it shall be signed  by the person making the confession and there has to be  certification  by  the police officer before  whom  such confession  is made that such confession was recorded in his presence  and recorded by him and it contains full and  true account  of the confession.  The said police officer has  to make  a memorandum at the end of the confession as  provided therein.  Under sub- rule 4, when the confession is recorded on  any  mechanical  device, the memorandum referred  to  in sub-rule  (3)  in  so  far as it is  applicable  has  to  be recorded by such police officer at the end of the confession in  the mechanical device.  In the present case, as we  have pointed  out the confessional statement was made in  writing though  during the investigation in another case.  But  copy of it was brought as evidence in the case and proved through PW  13  and is exhibited Ex.PZ.  It is not the case  of  the appellant  that any procedure as required under Rule 15,  as aforesaid,  or  what is contained in Section 15 of the  TADA Act  was not followed.  The limited area of challenge to the said  confessional  statement is that the same was not  made voluntarily as required under Section 15(2) of the TADA Act. For ready reference Section 15 is quoted hereunder :

     15.   Certain confessions made to police officers  to be  taken into consideration - (1) Notwithstanding  anything in  the Code or in the Indian Evidence Act, 1872 (1 of 1872) but  subject to the provisions of this section, a confession made  by a person before a police officer not lower in  rank than  a Superintendent of Police and recorded by such police officer  either in writing of 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 for an offence under this Act or rules  made thereunder.

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     (2)  The  police officer shall, before  recording  any confession  under  sub-section  (1), explain to  the  person making  it  that  he is not bound to make a  confession  and that,  if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless  upon questioning the person making it, he has reason to believe that it is being made voluntarily.

     It  is  also  not  in   dispute,  nor  was  there  any contention that the disclosure therein does not make out all the  essential  ingredients of the offence for which  he  is convicted.   So the confession reveals, the planning and the subsequent  handing over of the bomb etc.  by the  appellant in  the  commission of the said offence.  It is also not  in dispute  that  PW13 who recorded the confession was  then  a Superintendent  of  Police  and he recorded it  in  his  own handwriting.

     It was contended before us that P.W.13 should not have recorded  the confession as it was not voluntary.  Before we enter  into this sphere of controversy to adjudicate on this issue,  we may point out that PW13 has not recorded anywhere that  it was not being made voluntarily, officer could  only record  such confession when he has reasons to believe  that it  is  being  made voluntary.  In other words, it  puts  an obligation  on such officer, who on questioning felt that he was  not  going to give the confession voluntarily,  not  to record such confession.  But when he recorded the confession the  presumption  is he was satisfied that the  accused  was going to make his confession voluntarily.

     The  legislature has conferred a different standard of admissibility of a confessional statement made by an accused made  under the TADA Act, from those made in other  criminal proceedings.   While  under  Sec.   15 of  the  TADA  Act  a confessional statement by an accused is admissible even when made   to   a  police  officer   not  below  the   rank   of Superintendent  of Police, in other criminal proceedings  it is  not admissible unless made to a Magistrate.  Section  25 of the Indian Evidence Act debars from evidence a confession of  an accused to a police officer, except what is permitted under Sec.  27.

     In  Sahib  Singh Vs.  State of Haryana, 1997  (7)  SCC 231,  this  Court while dealing with TADA Act held that  the meaning of confession as under the Indian Evidence Act shall also apply to confession made under TADA Act:

     46.   The Act, like the Evidence Act, does not define confession  and,  therefore, the principles enunciated  by this  Court with regard to the meaning of confession under the  Evidence  Act shall also apply to a  confession  made under  this  Act.   Under this Act  also,  confession  has either  to  be  an express acknowledgement of guilt  of  the offence charged or it must admit substantially all the facts which constitute the offence.  Conviction of confession is based  on  the  maxim habemus optimum  testem,  confitentem reum  which means that confession of an accused is the best evidence  against  him.  The rationale behind this  rule  is that  an  ordinary, normal and sane person would not make  a statement  which  would incriminate him unless urged by  the prompting of truth and conscience.

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     Under  this  Act, although a confession recorded by  a police  officer,  not  below the rank of  Superintendent  of Police,  is  admissible  in   evidence,  such   confessional statement,  if  challenged,  has  to   be  shown,  before  a conviction  can  be  based  upon   it,  to  have  been  made voluntarily and that it was truthful.

     In  other words, there is one common feature, both  in Section  15  of  the TADA Act and Section 24 of  the  Indian Evidence  Act  that  the  confession has  to  be  voluntary. Section  24  of Evidence Act interdicts a confession, if  it appears  to  the Court to be the result of  any  inducement, threat  or  promise  in certain conditions.   The  principle therein is that confession must be voluntary.  Section 15 of the  TADA Act also requires the confession to be  voluntary. Voluntary  means  that one who makes it out of his own  free will  inspired  by the sound of his own conscience to  speak nothing but the truth.  As per Strouds Judicial Dictionary, 5th Ed., at P.2633, threat means :

     It is the essence of a threat that it be made for the purpose  of  intimidating,  or overcoming, the will  of  the person to whom it is addressed (per Lush J., Wood V.  Bowron L.R.  2 Q.B.  21, cited Intimidate).

     Words  and Phrases - Permanent Edition, Vol.  44  page 622, voluntary defines:

     Voluntary  means a statement made of the free  will and  accord of accused, without coercion, whether from  fear of any threat of harm, promise, or inducement or any hope of reward  -  State V.  Mullin.  85 N.W.  2d.  598,  600,  249, 1own 10.

     At page 629 - confession defines:

     where  used in connection with statements by accused, words  voluntary and involuntary import statements  made without constraint or compulsion by others and the contrary. Commonwealth  V.   Chin kee, 186, N.E.  253, 260, 283  Mass. 248.

     In  words and phrases by John B.  Saunders, 3rd  Edn., Vol.  4, page 401, Voluntary defines:

     The  classic statement of the principle is that  the Lord  Sumner  in  Ibrahim V.  Regem [{1914} AC 599  at  609] where  he said, It has long been established as a  positive rule of English criminal law that no statement by an accused is  admissible in evidence against him unless it is shown by the  prosecution  to be a voluntary statement, in the  sense that  it  has not been obtained from him either by  fear  of prejudice  or  hope of advantage exercised or held out by  a person  in authority.  The principle is as old as Lord Hale. However,  in  five  of  the  eleven  text  books  cited  to ussupport  is to be found for a narrow and rather technical meaning  of  the word voluntary.  According to  this  view voluntary  means  merely that the statement has  not  been made in consequence of (I) some promise of advantage or some threat  (ii) of a temporal character (iii) held pout or made by a person in authority, and (iv) relating to the charge in

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the sense that it implies that the accuseds position in the contemplated  proceedings  will  or may be better  or  worse according  to  whether  or not the statement is made.  R  v Harz, R v Power {1966} 3 All ER 433 at 454, 455, per Cantley V.

     So  the crux of making statement voluntarily is,  what is  intentional,  intended, unimpelled by other  influences, acting  on ones own will, through his own conscience.  Such confessional  statements are made mostly out of a thirst  to speak  the  truth which at a given time predominates in  the heart  of  the confessor which impels him to speak  out  the truth.   Internal compulsion of the conscience to speak  out the  truth normally emerges when one is in despondency or in perilous  situation when he wants to shed his cloak of guilt and  nothing but disclosing the truth would dawn on him.  It sometimes  becomes so powerful that he is ready to face  all consequences for clearing his heart.

     Thus  from  the aforesaid premise it has to  be  seen, whether  on  the  facts and circumstances of this  case  the appellants  confession  was  voluntarily or  not?   Learned counsel  for the appellant has submitted the following three reasons  for holding the same to be not voluntary:- (a)  The confessional statement was made when the appellant was under hand  cuffs;   (b)  While recording the  confession  another police  man in the room at some distance was present who was holding  the  chain of his hand cuffs;  and (c) Outside  the room  where his confession was recorded it was surrounded by armed guards.

     No  other, as a fact, threat, inducement or promise by any  other  word  or deed is said to have been made  to  the appellant,  in  any other form nor it was contended  at  any stage  of  the proceedings culminating into his  conviction. The  only  ground  that the confessional statement  was  not voluntary are the three factual situation, as aforesaid.

     Whenever  an accused challenges that his  confessional statement  is  not voluntary, the initial burden is  on  the prosecution  for that it has to prove that all  requirements under  Section  15 and Rule 15 under TADA Act and Rules  has been   complied  with.   Once   this  is  done   prosecution discharges  its initial burden and then the burden shifts on the  accused  person.  Then it is for him to  prove  through facts   that  the  confessional   statement  was  not   made voluntarily.  If such fact was pleaded and brought on record during  trial the court must test its veracity, whether such fact  constitutes  to  be such as to make  his  confessional statement  not voluntarily made.  Returning to the facts  of the  present case the prosecution has proved to the hilt the initial  burden of compliance of both Section 15 and Rule 15 under  the TADA Act and Rules.  We may at the outset  record that  it is also not in dispute that the appellant was  hand cuffed  while confessional statement was recorded and  there was another policeman with the chain of his handcuff at some distance  in the room and there were armed guard outside the room,  where  confessional  statement  was  recorded.   This leaves  us  to  consider the question, whether this  set  of situation could be construed to be such as to infer that the confessional  statement  recorded  was  not  voluntary?   In considering  this  we have to keep in mind  the  distinction between  the TADA Act and the other criminal trial.  While a confession  recorded  under  the TADA Act  before  a  police

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officer  not below the rank of Superintendent of Police even under  police  custody  is admissible but  not  under  other criminal trials.  Keeping an accused under police custody in what manner with what precautions is a matter for the police administration  to  decide.  It is for them to  decide  what essential  measures  is to be taken in a given case for  the purpose of security.  What security, in which manner are all in  the realm of administrative exigencies and would  depend on  the  class  of  accused,   his  antecedents  and   other information  etc.,  The security is also necessary  for  the police  personnel keeping him in custody or other  personnel of  the police administration including the public at large. Thus  what  measure  has  to  be taken  is  for  the  police administration  to decide and if they feel greater  security is required in a case of trial under the TADA Act, it is for them  to  decide accordingly.  The preamble of the TADA  Act itself  reveals  that this Act makes special provisions  for the  prevention of and forthwith keeping with terrorists and disruptive activities.  In fact earlier TADA Act of 1985 was repealled  to  bring  in the present Act to  strengthen  the prosecution  to  bring to the books those involved under  it without  their filtering out, by bringing in more  stringent measures  under it.  In this background, we do not find  the handcuffing  of  the appellant or another police  man  being present  in the room with the chain of his handcuff or armed guards  present  outside the room to be such  to  constitute that  the  appellant  confessional statement  was  not  made voluntary.   It  has to be kept in mind that Section 15  and Rule  15  of  the  TADA Act and the Rules  have  taken  full precaution  to  see  that  confessional  statement  is  only recorded  when  he makes it voluntarily.  First,  confession could  only  be recorded by a police officer to the rank  of Superintendent  of Police or above.  Such police officer has to  record  in his own hand writing, he has to clearly  tell such  accused person that such confession made by him  shall be  used  against  him  and if  such  police  officer  after questioning  comes to the conclusion that it is not going to be  voluntarily he shall not record the same.  Keeping  this in  the background which is complied in the present case and keeping the administrative exigencies under which an accused is  kept under handcuff with armed guards etc.  which may be for   the  antecedents  activities  of  the   appellant   as terrorist,  for the purpose of security, then this could  in no  way  be  constituted to be a threat or coercion  to  the accused   for  making  his   confessional  statement.    The policeman  holding  his  chain of his handcuff  was  only  a constable and the person recording his confession was of the rank  of  Superintendent of Police.  The  Superintendent  of Police  conveyed  confidence  to the appellant and  made  it clear to the appellant as aforesaid.  After all this, if the appellant   was  still  ready   and  made  his  confessional statement, then merely presence of a constable a subordinate of Superintendent of Police, who was holding chain cannot be constituted to be such to be a threat which could induce him not  to  make  any voluntary statement.  Hence, we  have  no hesitation  to  hold that the presence of a constable  in  a room  could  in fact or law to be constituted to be such  to hold   that  such  confessional   statement  was  not   made voluntarily.   Mere handcuffing and presence of a  policeman we  fail to understand in what way could it be said to be  a threat  to  the accused appellant.  It is not the case  that before  making confessional statement any inducement, threat or  promise by any other word or deed was made to him by any person  which resulted into his making the said confessional statement.   Firstly,  we find total absence of  inducement,

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threat  or  promise  in  the present  case  as  against  the appellant  and  as we have said handcuffing, presence  of  a policeman  holding  chain of handcuff or even keeping  armed guard  outside  the room which being parts of  the  security measure by itself cannot penetrate into the realm as to make a confessional statement not to be voluntary made.

     For  the  aforesaid  reasons  and  on  the  facts  and circumstances  of  this case, we have no hesitation to  hold that the confessional statement of the appellant is not only admissible but was voluntarily and truthfully made by him on which  prosecution  could  rely for  his  conviction.   Such confessional   statement  does  not   require  any   further corroboration.   Before  reliance  could be placed  on  such confessional statement, even though voluntarily made, it has to  be  seen by the court whether it is truthfully  made  or not.   However,  in the present case we are not called  upon nor  is  it challenged that confessional statement  was  not made  truthfully.  So for all these reasons we hold that the impugned  judgment  passed by the designated court was  just and  proper which does not require any interference by  this Court.   We confirm the conviction and sentence.  The appeal is accordingly dismissed.

     Before   concluding  we  would   like  to  record  our conscientious   feeling  for  the   consideration   by   the legislature,  if  it deem fit and proper.  Punishment to  an accused  in  criminal jurisprudence is not merely to  punish the  wrong doer but also to strike warning to those who  are in the same sphere of crime or to those intending to join in such  crime.   This punishment is also to reform such  wrong doers  not  to  commit  such offence in  future.   The  long procedure and the arduous journey of the prosecution to find the  whole truth is achieved some time by turning on accused as  approvers.  This is by giving incentive to an accused to speak  the truth without fear of conviction.  Now turning to the  confessional statement, since it comes from the core of heart  through repentance, where such accused is even  ready to  undertake the consequential punishment under the law, it is  this  area  which needs some encouragement  to  such  an accused  through some respite may be by reducing the  period of  punishment, such incentive would transform more incoming such  accused to confess and speak the truth.  This may help to  transform an accused, to reach the truth and bring to an end successfully the prosecution of the case.

     In  view  of the finding, as aforesaid, we uphold  the judgment  and order passed by the Designated Court No.   III and  uphold  the  conviction  of  the  appellant  under  the aforesaid Sections.  The appeal is accordingly dismissed.