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CASE NO.: Appeal (crl.)  212 of 2007

PETITIONER: Harbans Singh

RESPONDENT: State (Govt. of N.C.T. of Delhi)

DATE OF JUDGMENT: 15/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Criminal) No. 2930 of 2006)

MARKANDEY KATJU, J.

       Leave granted.

       This appeal has been filed against the impugned judgment dated  9.1.2006 of the Delhi High Court in Criminal Appeal No.331 of 2004.  

Heard learned counsel for the parties and perused the record.          Harbans Singh-appellant and one Mohd. Ayub Mir were convicted by  a common judgment dated 6.4.2004 in FIR 34/2002 under Sections 3/20/22  of Prevention of Terrorism Act, 2002 (in short ‘POTA’) dated 2.7.2002 P.S.  Special Cell (S.B.).  Both the appellants have been sentenced to 14 years of  rigorous imprisonment under Section 22 of POTA.  Mohd. Ayub Mir has  been sentenced to life imprisonment and to pay a fine of Rs.1,000/- and in  default simple imprisonment for one month under Section 3(5) of POTA and  to rigorous imprisonment for 10 years for the offence under Section 20 of  POTA.

       As per the prosecution case the co-accused Mohd. Ayub Mir, a  terrorist of Lashkar-e-Taiba (in short ‘LeT’) was staying in Room No.204,  Hotel Tamanna, Gali Kasimajan, Bajlimaran, about which an information  was registered in Daily Diary of Police Station Special Cell, Lodhi Colony  on account of which he was kept under watch.  It is alleged that the police  had also received information from Jammu & Kashmir police that Mohd.  Ayub Mir was a resident of Sri Nagar and was a surrendered militant of  Jammu & Kashmir Liberation Front and was an active terrorist of LeT, a  terrorist organization, and was required by the J & K police.  The police  further claims to have received an information that on 28.6.2002 the  appellant-Mohd. Ayub Mir would receive an amount sent through hawala in  the Central Park near Palika Bazar, Connaught Place.  The police was  alerted and followed his movements.  On the relevant day one Tejinder  Singh s/o Shri Gurcharan Singh was joined in the raiding party.  Mohd.  Ayub Mir was identified by his clothes, namely, blue jeans and yellow T- shirt.  At 2.30 p.m., another person, Harbans Singh (the appellant before us)  came to him and talked with him.  The prosecution alleged that Mohd. Ayub  Mir took out a 10 rupee note from the pocket of his shirt and gave it to  Harbans Singh who matched the same with the paper slip which he took out  from his own shirt pocket.  Harbans Singh then put the note and the slip in  his pocket and handed over a black polythene packet to Mohd. Ayub Mir.   Both were immediately arrested.  Further, the prosecution case is that on  interrogation, Mohd. Ayub Mir admitted of his contacts with LeT and  delivery of Rs.7 lakhs through hawala payments for the above militant  organization from Harbans Singh.  The polythene packet contained 14 packs

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of 100 notes of denomination of Rs.500/-.  The 10 rupee note and the slip of  paper were also recovered from the pocket of Harbans Singh and both were  booked for the offence under Section 3/20 & 22 of POTA.

       During investigation, confessional statements of both the appellants  were recorded.  The police also arrested Bachraj Bengani @ B.R. Jain, who  allegedly had handed over the money to Harbans Singh for the purpose of  delivering the same to Mohd. Ayub Mir.  Sanction for prosecution under  Section 50 of POTA was obtained and all the three were charge-sheeted for  offences under POTA.  Mohd. Ayub Mir was charged under Section 3(5)  and Sections 20 & 22(2) of POTA whereas Harbans Singh as well as  Bachraj Bengani were charged with offence under Section 22(3) of POTA.

       The prosecution examined 13 witnesses.  The important witnesses for  the prosecution were PW-6 Neeraj Kumar, SI, Special Cell, PW-9 Ved  Prakash, Inspector, Special Cell, PW-10 Rajinder Singh and PW-12 Rajbir  Singh, all of whom were present when the two appellants.  Mohd. Ayub Mir  and Harbans Singh were apprehended on 2.7.2002.  PW-4 Ujjwal Misra,  DCP, Special Branch recorded the confessional statement of Mohd. Ayub  Mir and Harbans Singh.  Both the appellants were eventually also produced  before the Chief Metropolitan Magistrate, Delhi, Ms. Sangita Dhingra  Sehgal, PW-5 for confirmation of the confessional statements.  The accused  denied having made the confessional statements.  Harbans Singh further  denied having been arrested from the Central Park, Connaught Place and  claimed that he was arrested from the office of Deepak Jain, Gali No.76,  Regarpura, Karol Bagh on 28.6.2002.  Both the accused denied having  confirmed their confessional statements when they were produced before the  Chief Metropolitan Magistrate, Delhi.  Both of them claimed to have been  framed in the case.          The trial court after hearing the defence and the prosecution convicted  the appellant and Mohd. Ayub Mir but acquitted Bachraj Bengani.  The  conviction is based on the confessional statements coupled with recovery of  black polythene packet containing Rs.7 lakhs, the 10 rupee note and the slip.   The contradictions in the evidence pointed out by the defence were held to  be insignificant.

       Against the judgment of the trial court, an appeal was filed before the  High Court, which was dismissed by the impugned judgment and hence this  appeal.

       It was submitted before us that the appellant never made any  confessional statement.  However, we are not inclined to accept this  submission.  DCP Ujjwal Mishra who recorded the confessional statement  appeared as PW-4.  He has described the manner in which the confessional  statement was recorded.  As per his version in the witness box, ACP Rajbir  Singh produced accused Mohd. Ayub Mir and Harbans Singh before him for  getting their confessional statements recorded on which he immediately  asked the ACP and his staff to leave the room.  He also sent accused  Harbans Singh out of his room.  Thereafter he explained to Mohd. Ayub Mir  that whatever he (Mohd. Ayub Mir) was going to say would be recorded and  could be used against him in evidence during trial.  Mohd. Ayub Mir still  expressed his willingness to get his confessional statement recorded.  He  also stated that he could speak in Hindi.  He then summoned a computer  from his office as well as one SI who is a Hindi Typist competent to type on  the computer.  PW-4 Ujjwal Mishra, goes on to say that he proceeded to  record the statement of the accused which took approximately two hours.   The initial warning given by him is Ex. PW-4/A which appears in the  extracted portion above.  The confessional statement made by Mohd. Ayub  Mir is proved as Ex.PW-4/B.  Each page of the confessional statement is  signed by the accused at point ‘B’ whereas DCP Ujjwal Mishra signed at  point ‘A’.

       PW-4 then says that after having recorded the statement of Mohd.  Ayub Mir he called the second accused Harbans Singh to his chamber and

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proceeded to record the statement of Harbans Singh in the same manner and  this statement is Ex.PW-4/D.  ACP Rajbir Singh then made a request for the  copies of the statements which was allowed.  The original was sealed in his  presence in an envelope and the same was sent to Shri V.K. Maheshwari,  ACMM, Patial House, Delhi.  This envelope is Ex.PW-4/E.  Another  important aspect of the testimony of PW-4 is that the third accused Bachraj  Bengani after being explained that if he confessed, his statement could be  read against him during trial declined to make any confessional statement.   The proceedings in respect of Bachraj Bengani, is Ex.PW-4/F.  During  cross-examination this witness re-affirmed that he had explained the  consequences of making the confessional statement.   He denied that  accused Mohd. Ayub Mir and accused Harbans Singh were coerced to make  the confessional statements.  He denied that any rough draft was made.  He  reiterated that Mohd. Ayub Mir had stated that he could understand and  speak Hindi.  He said that what was supplied to ACP Rajbir Singh was not  another copy from the computer but a photocopy of the original.

       The two accused were produced before Ms. Sangeeta Dhingra Sehgal,  Chief Metropolitan Magistrate, Delhi (as she then was).  She appeared in the  witness box as PW-5.  She had received the confessional statement in a  sealed cover.  She stated that ACP Rajbir Singh had brought the two accused  in her chamber and he had been sent out of her chamber before the sealed  covers were opened.  She stated that she then enquired from the accused  persons whether they had been tortured or harassed by the police but the  accused persons did not complain of any harassment or torture.  They  confirmed that the statements were made by them before the DCP.  She  made an endorsement on the confessional statement of Mohd. Ayub Mir,  which is Ex.PW-5/A, and an endorsement on the confessional statement of  Harbans Singh, which is Ex.PW-5/B.  The signatures of Mohd. Ayub Mir  and the signatures of Harbans Singh were taken on the application of ACP  Rajbir Singh EX.PW-5/D.  Thereafter the confirmation proceedings and the  statements of the two accused were sealed in the envelope Ex.PW-5/E.  In  cross-examination she was categorical that had she not satisfied herself  about the absence of any duress, she would not have recorded her  endorsement.  She stated that she did not tell the accused persons that at this  stage they could call their counsel and consult them and that she did not tell  them that they could be provided with an Advocate on that day at  Government expense.  She said that she herself made no attempt to provide  any advocate to the accused.  Admittedly, the two accused persons were sent  to judicial custody immediately after the confession.  The CMM, however,  stated that she did not tell the accused persons that they would not be sent to  police custody even if they have not confirmed the statements.  She stated  that she had completely satisfied herself that the accused persons were free  from all duress and coercion and had not conducted the proceedings in a  mechanical way.  She stated that she had gone through the provisions of  POTA and only thereafter conducted the proceedings.

       The High Court has recorded a finding that the prosecution has  sufficiently proved that the confession of the accused was genuine and it was  made and confirmed by the Chief Metropolitan Magistrate as per the  provisions of Section 32 of POTA.  As seen from the record, the recovery of  the money immediately after the transaction in question has been sufficiently  proved.  Admittedly, the two appellants, namely, Harbans Singh and Mohd.  Ayub Mir, were strangers to each other till the time the money was being  handed over.  Harbans Singh identified Mohd. Ayub Mir with the colour of  his dress of which he had made a note in a slip of paper.  The number of the  10 rupees note was another such factor in identifying each other.  Neither of  the two claimed to have had any kind of transaction with each other at any  earlier point of time.  They were neither partners in business nor had any  occasion to deal with each other.  In this situation, the purpose of handing  over the cash is especially within the knowledge of the two  accused/appellants, Harbans Singh and Mohd. Ayub Mir.  Section 106 of the  Evidence Act casts upon them a responsibility of advancing an explanation  for the same.  The applicability of Section 106 of the Evidence Act in the  criminal law has been recognized by the Supreme Court in several

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judgments.  Two recent judgments on the point are State of West Bengal  vs.   Mir Mohammad Omar & Ors. 2000(8) SCC 382 and Sucha Singh  vs.  State  of Punjab  JT 2001(4) SC 107.

       In their statements under Section 313 Cr.P.C. they denied having  made any such confession.  Instead of coming out with some explanation of  their own about the purpose of handing over the money they denied that  there was ever any transaction of giving and taking the sum of Rs.7 lakhs.   They even denied that they were arrested by the police on the spot and the  sum of Rs.7 lakhs was recovered from them.  Harbans Singh who said that  he was actually arrested from the office of one Pawan has not cared to prove  this allegation by production of evidence.

       It can be seen that the entire case of the prosecution has been proved  by the prosecution witnesses except the purpose of the transaction.  In the  absence of any explanation from the accused in this regard, an adverse  inference is in our opinion attracted.  They have failed to discharge their  onus.  It is only for this missing link that the confessional statements were  used.

       The objection to the two confessional statements is that the procedural  safeguards for recording such confession as given in Sections 32 and 52 of  POTA was complied with.  Strong reliance is placed on the recent judgment  of the Supreme Court in the case of State of NCT Delhi  vs.  Navjot Sandhu  Afsan Guru 2005 (3) Crimes 87 (SC), popularly called the Parliament  Attack case in which the Supreme Court examined the effect of failure to  comply with the provisions of Section 32 and 52 of POTA.  The peremptory  provisions embodied in Section 32 of POTA are laid down as under :       

"(a) The police officer shall warn the accused that he is not  bound to make the confession and if he does so, it may be used  against him (vide sub-section (2).  (b)  The confession shall be  recorded in an atmosphere free from threat or inducement and  shall be in the same language in which the person makes it  (vide sub-section (3).  (c)  The person from whom a confession  has been recorded under sub-section (1) shall be produced  before the Chief Magistrate along with the original statement of  confession, within forty-eights hours (vide sub-section (4).  (d)  The CMM/CJM shall record the statement, if any, made by the  person so produced and get his signature and if there is any  complaint of torture, such person shall be directed to produce  for medical examination.  After recording the statement and  after medical examination, if necessary, he shall be sent to  judicial custody (vide sub-section (5)."

Learned counsel for the appellant submitted before us that Section 32  (2b) of POTA was not complied with because the warning given by the  police officer was in English, whereas the appellant does not understand  English.  We cannot accept this submission because no such plea was taken  originally before the trial court.  During the trial, the DCP Ujjwal Misra who  recorded the confession was thoroughly examined and cross-examined.  No  question was put to him suggesting that the warning was given in English,  which the accused could not understand.  In fact, Shri Ujjwal Misra, DCP  stated in his evidence that he explained to each accused that he was not  required to confess and that if he did, the confession could be used against  them.  In our opinion Sections 32 and 52 of POTA were complied with in  the present case.

The High Court has considered all submissions of the accused in great  detail in its well considered judgment and we see no reason to interfere with  the same.  The appeal is dismissed.