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CASE NO.: Appeal (crl.)  166 of 1999

PETITIONER: STATE OF MAHARASHTRA

RESPONDENT: SIRAJ AHMED NISAR AHMED & ORS

DATE OF JUDGMENT: 07/05/2007

BENCH: S.B. Sinha & P.P.Naolekar

JUDGMENT: JUDGMENT

STATE OF MAHARASHTRA Vs. SIRAJ AHMED NISAR AHMED & ORS (originally  respondents nos. 3, 4, 5, 6, 7, 8 and 11 before this Court)

P.P. NAOLEKAR, J.

1.              The State of Maharashtra has preferred this appeal under  the provisions of Section 19 of the Terrorist and Disruptive Activities  (Prevention) Act, 1987 (hereinafter referred to as "TADA Act")  challenging the judgment and order dated 5.10.1995 passed by the  Additional Judge, Designated Court for Greater Bombay in TADA  Special Case No.10 of 1995. 2.              Twelve persons, as accused nos. 1-12, were charged and  prosecuted for the offences punishable under Sections 120-B, 143,  147, 148, 149, 302, 302 r/w 120-B, 302 r/w 149, 307 r/w 120-B, 307  r/w 149, 392, 392 r/w 120-B, 392 r/w 149, 397 r/w 120-B, 397 r/w  149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468 r/w 120-B, 468 r/w  149, 471, 471 r/w 120-B, 471 r/w 149 of the Indian Penal Code, 1860  (for short "IPC") and under Section 3 r/w 25, 7 r/w 27 (2 and 3) of the  Arms Act, 1959 and under Sections 3(2) (i) (ii), 3(3), 3(5), 5 and 6 of  the TADA Act by the Designated Court.  During the trial before the  Designated Court, accused no. 2, viz., Feroz Abdullah Sarguru alias  Feroz Konkani escaped from the lawful authority of the police while  the trial was still in process and as he was not arrested thereafter  the  Designated Court neither considered any evidence nor recorded any  finding against the absconding accused.  The Designated Court held  that there was insufficient evidence against the 11 accused persons  for the offences they were charged with and they were acquitted,  except accused no. 3 Rizwan Mohammad and accused nos. 4- 6/originallyrespondent nos. 3-5/respondent Nos. 1-3 (in the amended  cause title) for the offences punishable under Section 5 of the TADA  Act and sentenced them to rigorous imprisonment for five years with  a fine of Rs. 2,000/- each, in default of which rigorous imprisonment  for another six months was imposed.  All these four accused persons  were also found guilty for the offences punishable under Section 3 r/w  Section 25 and Section 7 r/w Section 27 of the Arms Act.  But, in view  of the sentence awarded, separate sentence was not awarded under  these Sections.  The State has challenged the acquittal of 11 persons  of the charges not found proved by the Designated Court.  During the  pendency of the proceedings before this Court, the appeal as regards  accused Abdullah Rahman alias Hamza, Mohd. Harun and Azim  Sardar Khan, who were originally respondent nos. 1, 9 and 10 before  us, was dismissed for non-compliance of this Court’s order dated  23.8.2002, with respect to furnishing the correct and complete  addresses of these respondents for issuance of bailable warrants.  

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Similarly, the appeal as regards Rizwan Mohd., who was originally  respondent no.2, was dismissed on 27.2.2004 for non-compliance of  this Court’s Order dated 8.2.1999 regarding issuance of bailable  warrants.  Hence, we have before us respondent nos. 1, 2, 3, 4, 5, 6  and 7 who were originally respondent nos. 3, 4, 5, 6, 7, 8 and 11  whose names are : Siraj Ahmed Nisar Ahmed Khan, Mohamed Firoz  Ayub Khan, Rafiq Latif Sheikh, Shafiq Latif Sheikh, Gurnamsingh  alias Chotu, Salim Karim Dingaonkar, Mohamed Mushraf Hussain  Shiekh.

Factual Matrix 3.              The factual matrix as per the prosecution’s version and  the evidence led by the prosecution in the relevant background to  prove the alleged conspiracy and the commission of the offences the  accused charged for,  is as follows:  That all the accused persons  were members of the criminal gang led by Chota Shakeel who was  residing in Dubai and was controlling the activities of the gang  members from that place.  In or around 1994, a decision was taken  by Chota Shakeel to eliminate one Ramdas Nayak  who was the  member of Mumbai Municipal Council.  Accordingly, he disclosed his  plan and directed Sajid to make necessary arrangements to give  effect to the plan.  Sajid approached these 12 accused persons and  explained to them the directions of their leader and assigned each  one of them specific duties.  It is alleged that Sajid approached Feroz  Konkani (absconding accused) and informed him about the daily  routine of Ramdas Nayak.  He informed him that Ramdas Nayak  leaves his residence in a white colour Ambassador car at about 9 or  10 A.M. and Ramdas Nayak is provided with police protection of one  armed constable.  Sajid made firearms and ammunitions available to  the accused persons and the directions had been issued to Rizwan to  make necessary arrangements for the shelter of the accused  persons.  Sajid had provided a .38 revolver to Feroz Konkani, a 9 mm  pistol to one Soni and revolvers to John and Akhtar.  A few days  before the fateful day on which the gruesome murder of the deceased  Ramdas Nayak  along with the police constable took place, the  absconding-accused Feroz with .38 revolver, Soni with 9mm pistol,  John and Akhtar with revolvers, waited outside the house of the  deceased to implement their plan.  However, they failed that day  because the deceased had not come out of his residence till 11 A.M.   Moreover, they had some apprehension of the arms possessed by  bodyguard of the deceased and they thought that they were not  adequately armed to bring into action the plan set up by them. 4.              Sajid conveyed his apprehension to Chota Shakeel,  leader of the gang at Dubai who in turn asked him to collect  sophisticated firearms from Bharauch.  They required a vehicle so as  to collect those firearms at Bharauch and finally transport them to  Mumbai.  Azim took Sajid to respondent no.7-Mohd. Mushraf Hussain  Shaikh who had a motor garage and asked him to arrange for the  vehicle.  Mushraf was aware of the activities of Chota Shakeel and  the accused Azim and Sajid told him that they wanted to purchase a  motor car to be used in executing the murder plan of Ramdas Nayak.   By way of caution, they decided to purchase the vehicle in the name  of a person who had come to Mumbai from Kerala;  accused no.1- Abdul Hamza, who hailed from Kerala, was also informed about the  purpose for which the car was to be purchased.  He agreed to let  them buy the car on his name.  A Fiat car, bearing no. MMU-8373,  was then purchased for Rs.60,000/- from Super Motor Company.   This purchase was made by Mushraf in the name of Hamza.  On the  direction of Sajid, Mushraf got prepared a secret chamber in the car  to carry the weapons in the car from Bharauch and further to the  place where the plan was to be executed.  A compartment was got  prepared in the car so as to keep the arms concealed in it. 5.              As per the conspiracy between the accused persons,  Gurnamsingh alias Chotu-respondent no.5 was entrusted with the

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work of bringing the arms from Bharauch.  Gurnamsingh along with  absconding accused Feroz Konkani took the car to Bharauch to  collect the firearms from there.  They collected various firearms  including AK-56 and AK-47 rifles, ammunitions, revolvers, pistols, etc.   Since all the firearms provided to them at Bharauch could not be  concealed in the secret chamber prepared in the car, they left some  of them with the intent to collect it later on from their man in  Bharauch.  The absconding accused, Feroz Konkani, distributed  those arms among Rizwan and respondent nos. 1-5.  Thereafter,  Gurnamsingh-respondent no.5, along with Feroz Konkani again went  to Bharauch and collected the remaining firearms.  Sajid stole a Hero  Honda motorcycle, bearing no. BLC 5288, owned by one Pareira,  who had filed a complaint of theft of his vehicle in MIDC Police  Station. 6.              After all the preparations, the accused persons arranged  the vehicle, firearms, ammunitions, etc. for the commission of murder  of Ramnayak. On August 24, 1994 they gathered near the house of  accused Rizwan.  Accused Rizwan changed the number plate of the  Fiat car from MMU-8373 to 8879 by using cello-tape.  They also  changed the motorcycle number.  Feroz Konkani, the absconding  accused, Soni, Gurnamsingh-respondent no.5 and John kept the  firearms in the Fiat car and decided to execute the plan on the next  day morning.  It was decided that Salim Karim Dingaonkar\026 respondent no.6 would drive the car to the place and they asked him  to take away the car to Bandra.  They also disclosed to him that the  firearms were kept in the Fiat car.   7.              On the fateful day, i.e., 25.8.1994, the absconding  accused Feroz Konkani along with Salim Karim Dingaonkar \026 respondent no.6 drove the Fiat car towards the house of Ramdas  Nayak at Hill Road.  Sajid, Soni, Akhtar and Hazir - all absconding  persons, had also reached there and they were waiting in the  adjoining hotel.  Salim Karim Dingaonkar-respondent no.6 was  standing outside the Fiat car and Feroz Konkani and Soni were  waiting inside the car with their weapons ready. When the car of  Ramdas Nayak came out of his house on the road, the absconding  accused - Feroz Konkani and the other person Soni came out of their  Fiat car with their AK-47 rifles and went towards the car of Ramdas  Nayak.  Soni fired at the car of Ramdas Nayak and Feroz Konkani  followed firing, thereafter.  The driver of the Ambassador car of  Ramdas Nayak came out of the car and Feroz Konkani fired bullets  on the driver.  The bodyguard-police constable Tadvi opened the  front side door of the Ambassador car and came out with a machine  gun and returned the fire.  Feroz Konkani rushed towards the  bodyguard and pumped several bullets on the bodyguard.  Since the  firing took place during the busy hours, commotion took place and the  persons on the street started running here and there.  Feroz Konkani  asked Gurnamsingh-respondent no.5 who was present at the spot  and accused John to run away.  Konkani and Soni, along with their  firearms, sped away from the place of incident on the motorcycle.  As  Soni sustained injuries, they decided to abandon the motorcycle.   Thereafter, they forced a rickshaw puller, who was passing by the  road, to leave the rickshaw by frightening him with the firearms and  they took it away.  Both of them kept the rifles at the backside of the  rickshaw, which were later on recovered along with the rickshaw.   The case of prosecution is that the eye-witnesses saw the  absconding accused persons Konkani and Soni when they started  firing bullets and they also saw Salim Karim Dingaonkar \026respondent  no.6 standing near the Fiat car. 8.              During the investigation, the police found that one retired  person, who was passing by Bandra Medical Store, received bullet  injuries on his abdomen and he was treated at Bhabha Hospital.  One  salesman, namely, Rizwan, who was also walking nearby Balaji  Hotel, sustained bullet injuries on his abdomen and was admitted in  Babha Hospital.  Ramdas Nayak and his bodyguard-police constable  were immediately rushed to Bhabha Hospital where the doctor on

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duty found them dead and declared them as such.  The police  received information that a motorcycle, bearing no. BLC 5882, is lying  on the road at the junction of road nos. 24 and 33 at Bandra (West)  and later on they found that its original number was changed.   Investigation and arrest 9.              FIR was lodged by a police constable  Gawli at the  nearby Bandra Police Station and the police had registered a case for  the offences charged against the accused persons.  During the  course of investigation,  the police found the abandoned Fiat car near  the place of incident and they traced out that it belonged to accused  Hamza.  Thereafter, the police also seized the motorcycle and the  rickshaw along with the weapons.  10.             On 17.10.1994, Feroz Konkani was arrested at  Bangalore.  At his instance, Rizwan was arrested with firearms on the  same day.  At the instance of Rizwan, Gurnamsingh-respondent no.5  was arrested on 19.10.1994.  Rafiq Latif Sheikh-respondent no.3 and  Shafiq Latif Sheikh-respondent no.4 were arrested on 19.10.1994.   Salim Karim Dingaonkar-respondent no.6 was arrested on  19.10.1994.  Mohd. Mushraf-respondent no.7 was arrested on  28.4.1995 at Hyderabad. 11.             On 20.10.1994, the police requested Special Executive  Magistrate (SEM)  Mr. Kamath to arrange for Test Identification (TI)  parade and introduced Feroz Konkani-absconding accused and  Salim Karim Dingaonkar-respondent no. 6 on TI parade.  Konkani  was identified by six witnesses, whereas five witnesses identified  Salim Karim Dingaonkar to be a person standing near the Fiat car at  the time of incident.  Thereafter on 29.10.1994, these accused  persons were again put for TI parade and two witnesses identified  them.  On 2.5.1995, again TI parade was organized wherein Harun  Mohd. Hanif Shiekh was identified.   12.             On 14.11.1994, a preliminary statement of Rizwan was  recorded by S. Mohd. Syyad, Dy. Commissioner of Police, Special  Branch-1, Crime Investigation Department, Mumbai and he was  remanded to police custody.  He was again produced for recording  his confessional statement under Section 15 of the TADA Act on  16.11.1994 and his confession was recorded by S. Mohd. Syyad. 13.             On 5.5.1995, a preliminary statement of Harun Mohd.  Hanif Sheikh was recorded by T.A. Chauhan, Dy. Commissioner of  Police, Parimandal-6, Mumbai and he was again produced before  him on 7.5.1995 and on that day his confession was recorded under  Section 15 of the TADA Act.   14.           On 5.5.1995 Mohd. Mushraf-respondent no.7 was produced  before T.A. Chauhan, Dy. Commissioner of Mumbai Parimandal-6  and his preliminary statement was recorded.  Thereafter, he was  again produced before him for recording his confessional statement  on 8.5.1995 under Section 15 of the TADA Act. 15.        As per the prosecution’s version, the motive to eliminate  Ramdas Nayak was that he was a leader of the BJP and was an  elected Councillor of BMC.  Chota Shakeel informed accused  persons that activities of Ramdas Nayak were causing harm to  Muslim community and in the interest of Muslim community, it was  necessary to kill Ramdas Nayak.  As per the instructions and  directions issued by the gang leader, a plan was hatched and  successfully executed.  The accused-respondents were active  participants in the conspiracy of eliminating Ramdas Nayak and had  actively taken part to execute the plan set up by them by committing  various acts in furtherance of their object to commit murder. 16.            As only seven respondents are before us in the present  appeal, we shall consider the part played, as alleged by the  prosecution, by these accused persons in committing the offence(s)  of which they have been charged. 17.             As per the prosecution, Siraj Ahmed Nisar Ahmed- respondent no.1 possessed arms which were brought from Gujarat  for nefarious design to commit the murder of Ramdas Nayak.   18.         Mohd. Firoz Ayub Khan-respondent no.2 possessed arms

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which were brought from Gujarat for committing the murder of the  deceased Ramdas Nayak.  He also allowed his STD booth to be  used for conveying the message to the gang leader, Chota Shakeel  by the assailants just after the act of murder. 19.        Rafiq Latif Sheikh-respondent no.3 possessed arms which  were brought from Gujarat for committing the murder of deceased  Ramdas Nayak. 20.        Shafiq Latif Sheikh-respondent no.4 harboured absconding  accused Feroz Konkani after the commission of the murder of the  accused.  21.        Gurnamsingh-respondent no.5 drove the Fiat car which was  used to bring arms from Bharauch and  kept some of the arms which  had been brought from Bharauch.  He was present at the spot to help  the assailants in order to commit the crime.   22.         Salim Karim Dingaonkar-respondent no.6, was the driver of  the car on the fateful day who took the car carrying the assailants and  the arms to the place of murder.  He was present at the spot to help  the assailants in commission of crime. 23.         Mohd. Mushraf-respondent no. 7 helped to purchase the Fiat  car in the name of Hamza.  He also got a secret compartment  prepared for carrying arms.   24.        As already mentioned, the Designated Court has convicted  respondent nos.1, 2 and 3 only for possessing arms specified in  Columns 2 and 3 of Category I or Category III (a) of Schedule I to the  Arms Rules, 1962 in a notified area under Section 5 of the TADA Act  and under Arms Act, and acquitted respondent nos. 4, 5, 6 and 7  from all charges. 25.         The prosecution case is that accused-respondent no. 1 Siraj   Ahmed Nisar Ahmed Khan, accused-respondent no. 2 Mohd. Firoz   Ayub Khan and accused-respondent no. 3 Rafiq  Latif Sheikh were  aware of the conspiracy hatched to kill Ramdas Nayak and they were  asked to keep the weapons brought from Bharauch.  The weapons  were seized from their possession.  As per prosecution, accused  Feroz Konkani gave information that some firearms had been kept  with these accused persons and on that information the police party  proceeded to recover the firearms from them.  The police was  accompanied by a Panch witness, PW-22, whose name was not  disclosed as he had asked for protection to keep his name and  address concealed.  The Police Sub-Inspector (PW-51) deposed that  on 19.10.1994 at the instance of Feroz Konkani they approached at a  room at the first floor of a building  where one garment factory was  located in Ekta Nagar at Andheri.  Feroz Konkani knocked at the door  and respondent no. 1 Siraj Ahmed Nisar Ahmed opened the door.   On being asked, he took out a gunny bag from beneath a cot and  produced it before the witnesses. They opened it and found one AK- 47 rifle, 17 bullets and one magazine.  Panchnama was prepared and  the weapons were seized. Thereafter, Feroz Konkani took police  party and the panch to a hut at the back side of Onkar  Communication Centre in front of Copper Hospital.  When Konkani  knocked at the door, respondent no. 2 Mohd. Firoz Ayub Khan  opened the door.  Konkani asked him to produce the weapons and he  took out a gunny bag from beneath a cot.  The police opened the  gunny bag and found two revolvers, two swords, three sharp edged  weapons like knife or gupti and 25 bullets, which were seized.   Thereafter, Konkani took the police and the panch to a room in a  slum area at the back side of building no. 15, Park Site at Vikhroli.   Konkani got the door opened. Respondent no. 3 Rafiq Latif Sheikh  opened the door.  On being asked by Konkani, he produced the  weapons in a plastic bag from the top of a cupboard.  It contained  one revolver and 13 bullets.  A panchnama was prepared.     The  Designated Court has accepted the case set up by the prosecution as  regards these accused for seizure of the firearms and other arms  from the accused-respondents and consequently convicted them as  mentioned hereinabove.  Apart from this evidence of accused having  been found in possession of the firearms, the learned counsel for the

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appellant did not point out any other evidence on record to connect  these accused with the conspiracy of committing murder of  Ramdas  Nayak. There is no evidence brought on record by the prosecution to  prove that these very arms had been brought from Bharauch.  There  is no evidence to connect the arms found in possession of the  accused with the arms which had been alleged to have been brought  from Bharauch.  There is also no evidence to show that any of the  arms found in possession of these accused was used in commission  of the crime. 26.             As regards respondent no. 6-Salim Karim Dingaonkar, the  case of the prosecution is that he was engaged on the fateful day to  drive the vehicle along with the two absconding assailants; that he  took them to the place of incident on that day; and that he  was  present at the time of the incident.  It is further the case of the  prosecution that he left the place of incident along with the two  assailants immediately after the firing took place.   To prove this fact,  the prosecution examined PW-7 whose name and address was kept  concealed.   PW-7 stated that he was working as a licensee in a stall  which was situated on Hill Road in Bandra (West).  On 25.8.1994 at  about 9.15 a.m. he opened the stall.  The owner of the stall was also  present in the stall since 9.15 a.m.  At about 10.00 a.m., he heard  sound like bursting of crackers and the persons were running helter-  skelter and the adjoining shops were being closed down.  On hearing  the sound, he came immediately out of his stall and saw that the car  of Ramdas Nayak was coming from the road near a mango tree  which was on the right side of the stall and the car was not moving  properly.  He saw Ramdas Nayak inside the car and two persons  were firing at the car.  After the firing, he saw the two assailants  walking towards Bandra railway station.  He also saw firing by these  two assailants towards the bodyguard and the driver of the vehicle.   The driver fell down on the back side of the car and the bodyguard of  Ramdas Nayak fell down near the driver.  Thereafter, the two  assailants started walking towards the railway station and two more  persons followed the two assailants and the persons following the  assailants were having small firearms.  He described one of the  persons who followed to be in the age group of 25 to 28 years, having  medium built, height of 5 to 5=  ft. and small hair on his head.  He  was carrying a black colour small firearm which had a wooden colour  handle.   The said witness (PW-7) identified respondent no. 6 to be a  person who had followed the assailants immediately after the  incident.   This witness further stated that he was standing near a car  which was parked in front of the Union Bank.  He identified the  accused in the identification parade as well as in the dock.   27.             This witness was disbelieved for the identification of the  accused to be a person standing near the car or present at the time  of the incident by the Designated Court on the reasoning that in  connection with paragraph 8 of his deposition about the identification  parade dated 20.10.1994, the SEM Kamat (PW-33) had deposed that  on 20.10.1994 Feroz Konkani and Salim Karim Dingaonkar were  identified by the witnesses and this witness for the first time stated  that he identified one of the assailants and also the other person  because the said person was standing near a Fiat car which was  stationary in front of the office of Union Bank and that this person had  gone along with the assailants.   When the attention of this witness  was drawn to respondent no. 6 during his cross-examination, he  replied that during the identification parade he identified respondent  no. 6-Salim Karim Dingaonkar as he was standing near the Fiat car.   When this witness stated that two persons had followed the  assailants, in his examination-in-chief he did not say that one of them  was standing near the Fiat car.  28.             The Designated Court further found discrepancy in the  evidence of PW-7 with regard to Fiat car and concluded that the  witness claimed that when he returned from Bhabha Hospital and  changed his clothes at his house and came to his shop, while he was  on his way he saw the Fiat car.  He further stated that he did not see

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the Fiat car prior to recording of his statement in Bandra Police  Station.   After the incident, the witness took Ramdas Nayak to  hospital and after return from hospital his statement was recorded by  Bandra Police and according to him prior to recording of his  statement he had not seen the Fiat car.  That shows that prior to   recording of his statement, he had not seen the accused near the Fiat  car.   It is, therefore, doubtful whether the accused was present near  the Fiat car at the time of commission of the crime.  There is a  possibility that after the incident several persons had gathered and  PW-7 might have seen accused near the Fiat car, but at that time  none of the assailants was present at the place of incident and thus it  cannot be said that PW-7 had seen the accused-respondent no. 6  Salim Karim Dingaonkar at the time of the incident near the Fiat car.   The Designated Court also recorded a finding that as per this witness  he had disclosed all the facts which he had seen at the time of  incident, but in his statement before the police he had not mentioned  the presence of Fiat car or the accused standing near the Fiat car.   The witness further stated that for the first time in the identification  parade he remembered that he had seen the accused standing near  the Fiat car.  Therefore, identification of accused-respondent no. 6 by  this witness would not carry the prosecution case any further because  at the time of the incident the witness had not seen the accused at  the place of  incident.  On the basis of the statement of this witness,  the Designated Court has reached the conclusion that it might be that  the accused was seen by this witness at the place of incident as so  many other persons who had gathered there, but the witness could  not establish his presence near the Fiat car at the time of incident.   Neither any firearm was recovered from this accused nor any  evidence was led to prove the fact that he was engaged for driving  the vehicle to carry the assailants and the firearms for committing the  murder of Ramdas Nayak as per the conspiracy hatched by the  accused persons. There is no evidence on record to establish that on  the relevant date he was seen driving the Fiat Car.  There is lack of  link evidence connecting this accused with the other accused  persons.  Finding the accused at the place of incident might have  raised the strong suspicion, but there is no evidence on record to  convert the suspicion into a proof about the involvement of the  accused-respondent no. 6 in committing the murder of Ramdas  Nayak.                29.             It is alleged by the prosecution that during the  interrogation of Rizwan,  he gave information to the police that out of  the weapons  transported from Bharauch to Maharashtra some of  them were handed over to Gurnamsingh-respondent  no.5 and,  accordingly, he took the police party to the place where respondent  no.5 was residing.  When they reached the house of Gurnamsingh,  Rizwan asked him to produce the weapons and Gurnamsingh took  out a bundle wrapped with paper from the backside of the cupboard  in his room and produced the bundle before the police.  When the  bundle was opened by the police, they found a revolver and some  cartridges and the same were seized.  Recovery of revolver and  cartridges was disbelieved by the Designated Court on the ground  that no independent witness had supported the recovery.  The  prosecution has not led any evidence to prove that the house in  question, from where the recovery was made, was owned or  possessed by Gurnamsingh-respondent no.5.  It has come in  evidence that one lady was present at the time of recovery of  weapons inside the house and Gurnamsingh introduced her as his  wife, but there is no evidence to prove the fact that the lady present in  the house was the wife of Gurnamsingh.  The house was situated in a  multi-storeyed building and there were several multi-storeyed  buildings nearby from where the revolver and cartridges were  recovered.  The recovery was made during the broad daylight.  Police  did not produce any evidence to prove the fact of visit of police to the  place from where the recovery was alleged, apart from absence of  independent panch witnesses.  Shivajrao Dattatray Kalekar (PW-50),

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a police officer  deposed that prior to completion of panchnama he  had made a search of the house but could not find any incriminating  articles.  When the police had recovered the revolver and ammunition  from Gurnamsingh on disclosure statement of  Rizwan  that one  revolver was kept with Gurnamsingh, then there was no reason for  the police to conduct the house search and, therefore, it would   indicate that the police were not relying on the information given by  the accused Rizwan but they were trying to find out the accused on  their own.  That apart, when the police had conducted  the house  search then there was every possibility that they had recovered  the  bundle from the back side of the cupboard.  To avoid these  difficulties, Vinayak Pandurang Kadam (PW-55) deposed differently  from Shivajirao Dattatray Kalekar (PW-50) and replied that they did  not search the house at all and thus evidence about the recovery was  suspicious.  The Court further held that there should have been a  concrete evidence that it was accused Gurnamsingh who was in   possession of the house and the lady who was present in the house  was the wife of Gurnamsingh, then it would have been reasonable to  accept the recovery.  But, the absence of such concrete evidence,  and the fact that the police have not examined any person available  nearby the vicinity, sufficiently create doubts about this recovery.   Apart from this, the weapon recovered from Gurnamsingh was not  used for committing the murder of Ramdas Nayak.  There was no  evidence that  this accused had any common agreement with the rest  of the accused to commit the murder of Ramdas Nayak.  On these  findings, the Designated Court has acquitted Gurnamsingh from all  charges. 30.             We are not satisfied with the manner in which the  evidence of the witnesses has been dealt with and appreciated in  regard to possession of firearms by accused Gurnamsingh by the  Designated Court.  It appears that in arriving at the findings that  Gurnamsingh was not in possession of the revolver and the bullets,  the Designated  Court has mixed up the issue with that of Rizwan’s  disclosure statement for  recovery of revolver from Gurnamsingh. 31.             To prove the recovery of firearm from the accused  Gurnamsingh, the prosecution examined the police officials and  panch witnesses of the seizure memorandum.  PW-50 Shivajirao  Dattatray Kalekar, who was posted at the relevant time in the Office  of DCB CID Unit VII, in his deposition stated that after the arrest of  Rizwan, he wanted to make a disclosure statement and accordingly  Constable  Mahadik was asked to bring the panch witnesses who  were brought by him.  Rizwan told that for the purposes of committing  the murder of Ramdas Nayak, they had transported some firearms  from Bharauch and one of the .38 revolvers was kept with the  accused Gurnamsingh and now he was ready to show the house of  Gurnamsingh.  Rizwan was accompanied by the witnesses and other  police officials in an Ambassador car.  Panchas and the rest of the  police staff followed them in other two jeeps.  Rizwan asked the driver  to take the car to the Lokhandwala Complex at Andheri (West).   When they reached Lokhandwala Complex, the driver was asked to  take the car near Girnar Building inside the complex. The witness,  accused Rizwan, police officials and panch witnesses proceeded  towards the 4th floor of the Girnar Building at block no. 402, as  directed by Rizwan.  The entrance door of block no. 402 was closed.   Then Rizwan knocked at the door and one person opened the door  from inside and came out.   Accused Rizwan identified the said  person and told the witnesses that he was Gurnamsingh.  The police  party entered block no. 402.  There they saw a lady inside the house.   Gurnamsingh told them that the lady was his wife.  Thereafter,  Rizwan asked Gurnamsingh to give the firearms and the ammunition  which were given to him.  Gurnamsingh went near a  cupboard and  took out a firearm from the backside of the cupboard without opening  the cupboard.   The firearm was wrapped in a paper.  The witness  collected the bundle from Gurnamsingh, removed the paper-wrapper  and found that it contained .38 revolver.  He also saw nine live

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cartridges in the bundle with the revolver.   The revolver engraved the  name  "Smith & Wesson" .  The witness asked Gurnamsingh whether  he was having any licence to possess the revolver and the cartridges.   Accused Gurnamsingh informed the witness that he did not have any  licence to possess either the revolver or the cartridges.  The revolver  and the live cartridges were seized and taken possession of.  Thereafter, he continued writing panchanama below the  memorandum and completed the same.  Prior to the completion of  panchanama, the police party also searched the house of  Gurnamsingh, but they could not find any other incriminating article.   The witness stated that the panchanama was written by him below  the memorandum and he had read over the contents of the  panchanama to both the panchas and obtained the signatures of the  panchas below the panchanama.   Memorandum and panchnama  were Exhibit 137.  The witness also identified in the court the revolver  seized from accused Gurnamsingh vide Exhibit 137 (Article No. 9).   During cross-examination, the witness admitted that he did not  enquire  with anybody about the title or occupation of block no. 402  but the accused Gurnamsingh and his wife were present in the block. 32.             The other witness examined by the prosecution is another  Police Inspector-Vinayak Pandurang Kadam (PW-55) attached to  DCB CID.   He fully supported the statement of PW-50 regarding the  disclosure statement made by Rizwan and the police party  proceeding towards block no. 402, Girnar Building on the information  supplied by the accused Rizwan, the seizure of the revolver and the  cartridges, preparation of the panchanama and also the fact that  accused Gurnamsingh had introduced the lady who was present in  the flat to be his wife. In the cross-examination, however, this witness  stated that after the accused Gurnamsingh had produced the revolver  and the live cartridges no search was made of block no. 402 by the  police party.   The statement of these witnesses about the recovery of  .38 revolver and the live cartridges was not connected with the  accused by the Designated Court on the ground that the exclusive  possession by the accused  of  block no. 402 was not  proved by the  prosecution.  It was held by the Designated Court that prosecution  had not proved that the lady found in block no. 402 was the wife of  the accused Gurnamsingh and, therefore, it could not be said that the  accused Gurnamsingh was in exclusive possession of  block no. 402  at the relevant time when the seizure of the firearm and the live  cartridges was effected by the police party.  The Designated Court  has completely overlooked the fact that both the witnesses (PW-50  and PW-55) have specifically stated that when the door of  block no.  402 was opened and they entered the flat a lady was standing there  along with the accused Gurnamsingh and the accused Gurnamsingh  introduced that lady as his wife.  However, there was no cross- examination of these witnesses on this point.  That apart, it was  within the exclusive knowledge of the accused Gurnamsingh of his  relationship with the lady found in the flat when the seizure was made  and it would  have been for the accused to put the question in cross- examination of  the witnesses to bring out the fact that the lady had  no relationship with the accused Gurnamsingh.  Other factor which  was taken into consideration by the Designated Court is that why the  police officials would make a search of the flat when the accused  Gurnamsingh himself had produced the revolver and the live  cartridges, by overlooking the fact that the investigation was in  progress with respect to a day-light murder, committed, of a political  leader, a sensational case and, as such, the police party would not  have felt complacent only on production of one firearm by the  accused Gurnamsingh.  It was quite natural that  they  had been  suspecting that block no. 402 might have other arms and considering  that factor they had made the search of the flat.  There is misreading  of the evidence by the Designated Court that the search was effected  prior to the completion of process of seizure of the revolver.  PW-50  had categorically stated in his evidence that after the seizure of the  revolver and the live cartridges he had started writing panchanama

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and prior to the completion of panchanama they also searched the  house of the accused Gurnamsingh, but they could not find any other  incriminating articles.   It is natural for the police party to search for  other arms while investigating a serious crime so that if any other  arms are found those can also be included in the document prepared  by them.  33.             The Designated Court has rejected the evidence of both  the witnesses on consideration of other aspect that PW- 55 had  stated that no search of the flat was made by the police party.  While  appreciating the evidence, the court must keep in mind that the  powers of observation differ from person to person. What one may  notice, other may not.  An object or thing happened might reflect in  the image of a person’s mind, whereas it may go unnoticed on the  part of another.  It has not come out in the evidence or in the cross- examination that PW-55 was also a party to the search of the flat  along with PW-50 after the arms were produced by the accused  who  had made a categorical statement that he had made a search of  block no. 402 before the completion of the panchnama.   While  appreciating the evidence of a witness, the approach must be  whether the evidence of the witness read as a whole appears to have  a ring of truth.  Once that impression is formed, it is undoubtedly  necessary for the court to scrutinize the evidence, more particularly  keeping in view the deficiencies, drawbacks and infirmities pointed  out in the evidence, as a whole, and evaluate them to find out  whether it is against the general tenor of the evidence given by the  witnesses and whether the earlier evaluation of the evidence is  shaken as to render it unworthy of belief.   Minor discrepancies on  trivial matter not touching the core of matter in issue, hyper-technical  approach by taking sentence out of context here or there from the  evidence, attaching importance to some technical error committed by  the investigating officer not going to the root of the matter, would not  ordinarily permit rejection of the evidence as a whole.   34.             On an overall reading of the statements made by PW-50  and PW-55, we do not find that the evidence of recovery of .38  revolver and the live cartridges from the accused Gurnamsingh was  in any way shaken by some of the infirmities pointed out by the  Designated Court.  In fact, in our opinion, those discrepancies in the  statements of PW-50 and PW-55 were not infirmities, but those  statements are consistent with the general tenor of evidence. 35.             When the accused Rizwan was arrested and made  disclosure statement that he would point out the house of accused  Gurnamsingh to whom he had handed over a revolver, it is natural for  the police party to take accused Rizwan for seizure of the arms  which, according to them, has a connection with the crime committed.  When the prosecution has proved conscious and exclusive  possession of block no. 402 by the accused Gurnamsingh, the  statements of the witnesses cannot be brushed aside on the ground  that the prosecution has not proved the title or ownership of the flat.   36.             It is not necessary at all for the prosecution to prove the  ownership of block no. 402, Girnar Building from where the firearm  and the live cartridges were recovered.  It is sufficient for the  prosecution to prove that the accused Gurnamsingh and his close  relations were occupants of block no. 402 so as to exclude the  possibility of other persons concealing and keeping firearms in the  premises of the flat.    According to us, the prosecution has proved  the seizure of the revolver and the live cartridges from the accused  Gurnamsingh. 37.             Under Section 5 of the TADA Act, any person found in  possession of any arms and ammunition specified in Columns 2 and  3 of Category I or Category III(a) of Schedule I to the Arms Rules,  1962 in the notified area, then notwithstanding anything contained in  any other law, would be punishable with imprisonment for a term  which shall not be less than five years but which may extend to  imprisonment for life and shall also be liable to fine.   As per the Arms  Rules, 1962, Schedule I Category III(a), "revolver and pistols" are

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prohibited arms in the notified area.  It is not in dispute that Mumbai is  a notified area.  The accused Gurnamsingh having been found in  possession of .38 revolver, is guilty of offence under Section 5 of the   TADA Act.  38.             As regards respondent no.4-Shafiq Latif Sheikh, we do  not find any substantive evidence to connect this accused with the  commission of crime. 39.           Now, we shall take up the case of respondent no.7- Mohd.  Mushraf Hussain Shaikh who was acquitted by the Designated Court. 40.             It is the prosecution case against accused Mushraf that  when all the accused entered into conspiracy to kill Ramdas Nayak,  they felt need to collect arms, ammunitions and vehicles to  transport  the requisite arms and ammunitions from Bharauch to Mumbai and  thereafter to use the  vehicle for transportation to the residence of  Ramdas Nayak.  Accused Mushraf was conducting a motor garage  and, therefore, accused  Feroz  Konkani and Rizwan Mohd.  approached  Mushraf for making arrangement of car.  They informed  him their plan  of killing Ramdas Nayak and requested him to find out  some vehicle to be purchased.   On he being  approached, Mushraf  started search for a suitable vehicle  and he found that the owner of  Super Motors had a car for sale and accordingly  purchased Fiat car  No. MMU8373 from the employee of Super Motors.  The said car was  used for transportation of weapons  from Bharauch  to Mumbai and  later on for the purposes of transport of the accused assailants  to the  place of Ramdas Nayak.  The police had seized the same car from  the place of incident.  The Investigating Officer traced the owner of  the car  PW-11 Vijay Shah.  In his statement before the Court, he has  admitted that he had sold the car to one Abbasbhai Saluji for the  consideration of Rs. 32,000/-.  Abbasbhai Saluji was examined as  PW-12 who identified witness  no. 11,  the owner and transferor of  the Fiat car.    He further stated that he sold the same car to one  Abdul Salija.  Abdul Salija was also examined as PW-13 who had  accepted that he had purchased the Fiat car from Abbasbhai Saluji.    Thereafter he wanted to sell it; therefore, he approached the vehicle  dealer  Hanifbhai  and Hanifbhai sold the car to a person from Kerala  and paid to him Rs. 50,000/-.  When Hanifbhai was examined by the  prosecution as PW-6, he deposed that he was carrying on business  in the name  and style of ’Super Motors’ at 107, Morland Road, near  BEST  Depot, Mumbai Central, Mumbai.  He used to purchase old  vehicles and sell the same.  He further deposed that in the month of  April, 1994, one  Abbasbhai had brought a Fiat car  and requested   him to sell it. On 10.5.1994, he went to pilgrimage at Makka and  returned to Mumbai on 19.6.1994.  On his return, he came to know  from his employee that the car of Abbasbhai had already been sold  but he could not tell the police the name of the purchaser.    We are  unable to find any effective help from the previous owners of the Fiat  Car to link the accused persons with it.  Prosecution was finally able  to bring the employee of the shop from where the Fiat car, alleged to  be used by the accused persons,  was bought.   However, no link  could be established with the accused persons which is clear as per  the observations of the Designated Court that the prosecution  brought the employee in the witness box, but the employee was so  afraid that he started shivering and before  any question was asked to  him with regard to his name etc. the said employee collapsed in the  witness box. On 24.3.1998  when the matter was listed for evidence,  prosecution could not bring the witness in the witness-box. 41.             In spite of the best efforts made by the prosecution, the  prosecution has failed to prove that the  Fiat Car which was found  standing at the place of incident was purchased by accused Mushraf  to link him with the other accused persons and with the conspiracy  which is alleged to have been hatched by the accused.  42.             Another piece of evidence was brought  on record by the  prosecution to link  Mushraf  with the commission of the crime is that  he  was arrested from a hotel at Hyderabad,  and to prove this fact  the prosecution has examined PW-48 Deepak Deshpandey, the

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owner of Vaibhav Lodge, Hyderabad, who claimed that the accused  Mushraf was residing in his lodge since 21.3.1995 and that he was  arrested from this lodge by the police.  The evidence of PW-48 shows  that the accused Mushraf  was residing in his lodge from 21.3.1995 to  28.4.1995.  The  incident  took place at Mumbai on 25.8.1994 but the  prosecution has not produced any evidence to indicate that during  August, 1994 to March, 1995 the accused Mushraf was not present at  Mumbai.  The absence of the accused from the place immediately  after the incident could not be established by the prosecution to draw  any inference that the  accused was absconding as he was  connected with the commission of the crime.  43.             It is urged by the learned counsel for the appellate-State  that the accused Mushraf has made a confession before a police  officer authorized to record the confession under Section 15 of the  TADA Act, wherein the accused has admitted his guilt and his active  participation in the commission of crime, which is a substantive piece  of evidence; and that the Designated Court has committed an error in  rejecting the confessional statement of the accused Mushraf.   44.             Under Section 15 of the TADA Act, notwithstanding  anything contained in the Indian Evidence Act, a confession made by  an accused before a police officer not lower in rank than a  Superintendent of Police which is recorded by such police officer in  writing or 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.   By Act No. 43 of 1993,  such confessional statement was made admissible against the co- accused, abettor or conspirator for an offence committed under the  TADA provisions or Rules made thereunder, provided that the co- accused, abettor or conspirator is charged and tried in the same case  together with the accused.  Sub-section (2) of Section 15 casts an  obligation on the part of the police officer to explain to the person  making the confession that he is not bound to make a confession and  further to give a statutory warning that if he does so it may be used as  evidence against him.   Rule 15 of the Terrorist and Disruptive  Activities (Prevention) Rules, 1987 (for short "the TADA Rules") lays  down the mode of recording the confession and Rule 15(3)(b)  requires the police officer to make a memorandum at the end of the  confession to the effect that he has explained to the maker that he is  not bound to make the confession and that the confession, if made by  him, may be used against him; and that he has recorded the  confession only on being satisfied that it was voluntarily made.  Rule  15(5) requires that every confession recorded under Section 15 shall  be sent forthwith to the Chief Metropolitan Magistrate or the Chief  Judicial Magistrate having jurisdiction over the area and the  Magistrate shall forthwith forward the recorded confession received  by him to the Designated Court taking cognizance of the offence.    45.             A Constitution Bench of this Court vide judgment  delivered on 11th March, 1994 in the matter of Kartar Singh v. State  of Punjab reported in (1994) 3 SCC 569, while upholding the  constitutional validity of the TADA Act, 1987, has laid down certain  guidelines so as to ensure that the confession obtained by the police  officer not lower than the rank of Superintendent of Police is not  tainted with any vice, but is in strict conformity with the well- recognised principles and fundamental fairness.  The said guidelines  are as under: (1)     The confession should be recorded in a free  atmosphere in the same language in which the person  is examined and as narrated by him;

(2)     The person from whom a confession has been  recorded under Section 15(1) of the Act, should be  produced before the Chief Metropolitan Magistrate or  the Chief Judicial Magistrate to whom the confession  is required to be sent under Rule 15(5) along with the  original statement of confession, written or recorded

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on mechanical device without unreasonable delay;  

(3)     The Chief Metropolitan Magistrate or the Chief Judicial  Magistrate should scrupulously record the statement,  if any, made by the accused so produced and get his  signature and in case of any complaint of torture, the  person should be directed to be produced for medical  examination before a Medical Officer not lower in rank  than of an Assistant Civil Surgeon;

(4)     Notwithstanding anything contained in the Code of  Criminal Procedure, 1973, no police officer below the  rank of an Assistant Commissioner of Police in the  Metropolitan cities and elsewhere of a Deputy  Superintendent of Police or a police officer of  equivalent rank, should investigate any offence  punishable under this Act of 1987.  This is necessary  in view of the drastic provisions of this Act, more so  when the Prevention of Corruption Act, 1988 under  Section 17 and the Immoral Traffic Prevention Act,  1956 under Section 13, authorise only a police officer  of a specified rank to investigate the offences under  those specified Acts.

(5)     The police officer if he is seeking the custody of any  person for pre-indictment or pre-trial interrogation from  the judicial custody, must file an affidavit sworn by him  explaining the reason not only for such custody but  also for the delay, if any, in seeking the police  custody;

(6)     In case, the person, taken for interrogation, on receipt  of the statutory warning that he is not bound to make a  confession and that if he does so, the said statement  may be used against him as evidence, asserts his  right to silence, the police officer must respect his right  of assertion without making any compulsion to give a  statement of disclosure.

46.             On the other hand, it is urged by the counsel for the  respondent-accused that although the confessional statement  was  recorded by the police officer after the judgment of the Constitution  Bench was delivered, yet the guidelines provided by the Court to  safeguard and ensure the voluntary nature of the confessional  statement made to the police officer were not complied with, apart  from the fact that the evidence led by the prosecution does not  indicate that the confession was made by the accused to the police  officer voluntarily; and, therefore, the Designated Court has not  committed any error in rejecting the so-called confessional statement  given by the accused Mushraf.   47.             The confessional statement of the accused Mushraf was  recorded by PW-42 T.A. Chavan.  The confession was recorded on  two dates.  The accused Mushraf was first produced before PW-42  on 5.5.1995 and after asking certain preliminary questions and  ascertaining the voluntary nature of the statement he was going to  make, he was sent back in the police custody and was produced  again on 8.5.1995 for recording his confessional statement from the  police custody.  PW-42, in his statement, stated that at the relevant  time he was posted as Deputy Commissioner of Police, Zone-VI in  Mumbai.  His office was situated at Mulund Police Station.  On  5.5.1995, he received a letter from the Additional Commissioner of  Police, Mumbai directing him that the accused Mushraf had disclosed  his intention to give a confessional statement and he should,  therefore, do the needful.  On receipt of the communication, he

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contacted PI Kadam who was the Investigating Officer and directed  him to produce the accused before him. The accused was produced  before him on 5.5.1995 at about 6.30 p.m. along with another  accused Mohd. Harun.  He recorded the statement of Harun first and  immediately thereafter he called the accused Mushraf in his chamber  and after asking the preliminary questions for ascertaining the wish of  the accused to make voluntary confession, he sent them back on  5.5.1995 to P.I. Crime of Mulund Police Station to be kept in custody.   The accused was recalled on 8.5.1995 for the purpose of recording  his confession to PW-42’s chamber and thereafter questions were  asked to ascertain whether he was still willing to give the confession  and on ascertaining that he was so willing his statement was  recorded in a typed format by the typist.  The contents of the  confession were explained to the accused who accepted the same  and his signature was obtained on the confessional statement.  The  confessional statement recorded on 8.5.1995 is Exhibit no. 120.  However, we have noticed that in his cross-examination, PW-42  admitted that he neither cared to ascertain the date of the arrest of  the accused nor confirmed as to where the accused had been kept in  custody from the time of his arrest till he was produced for recording  of his confessional statement. The witness also admitted that he had  not read the procedure given by the High Court for recording the  confessional statement, which was a part of the criminal manual.  In  the cross-examination, when provisions of Rule 15(3)(b) of the TADA  Rules were brought to his notice, he fairly admitted that the required  certificate was not with the same words and language provided in the  provisions.   As per the officer, he had embodied the gist of the  requirements provided under the Rule for certificate to be given by  the officer recording the confessional statement.  We have noticed  that the certificate does not mention that he had told the accused that  it was not binding on him to give the confessional statement.  The  officer also admitted that he never asked the accused as to why he  felt the necessity to give the confessional statement.  Admittedly, the  accused was also not produced before the Magistrate as laid down in  the judgment of the Constitution Bench.       48.             On recording of confessional statement under Section 15  of the TADA Act, a 2-Judge Bench of this Court in Ayyub  v. State of  Uttar Pradesh, (2002) 3 SCC 510 has held as under :

"18.       Section 15 of the TADA Act altered the  fundamental rules of evidence given in the Evidence Act,  which stood the test of time for over a century. Under Section  25 of the Evidence Act, a confession made to a police officer  by a person accused of an offence shall not be proved against  him. The power to record judicial confession is given to the  Magistrate and strict and rigorous guidelines have been laid  down in Section 164 Cr.P.C. That apart, many High Courts  also have framed rules giving detailed procedure for recording  confession. Confession is an admission of guilt. Normally,  nobody would like to admit his guilt as he is fully aware that  the same would be used against him. That apart, there is  constitutional right for the accused that he shall not be  subjected to any ’testimonial compulsion’. Under Article 20(3)  of the Constitution, the accused person has a protection from  being compelled to be a witness against himself. As the  confession made under Section 15 of the TADA Act is made  admissible in evidence, the strict procedure laid down therein  for recording confession is to be followed.  Any confession  made in defiance of these safeguards cannot be accepted by  the court as reliable evidence.  The confession should appear  to have been made voluntarily and the police officer who  records the confession should satisfy himself that the same  had been made voluntarily by the maker of that statement.   The recorded confession must indicate that these safeguards  have been fully complied with. \005"

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Further, in Simon and Others v. State of Karnataka, (2004) 1  SCC 74  this Court has held as under: "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. \005 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 and making such a confession  before a police officer admissible in evidence. \005"

In S.N. Dube v. N. B. Bhoir and Others, (2000) 2 SCC 254, a 2- Judge Bench observed as follows:  "31. \005Though giving of the statutory warning,   ascertaining 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 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. \005"

Also, in Hardeep Singh Sohal and Others v. State of Punjab  through C.B.I,  (2004) 11 SCC 612, this Court has held as under: "17.    \005 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."   

49.             From the aforementioned statements of law enunciated  by this Court, it is apparent that considerable amount of confidence  has been reposed on the senior police officials for recording the  confessional statement.  A confession statement to police is not  admissible under the general law connected with administration of  criminal justice, which is made admissible under the TADA Act, and,  therefore, the strict compliance of the procedure prescribed under  Section 15 of the TADA Act read with Rule 15 of the TADA Rules is  expected to be followed.  Any confession made in defiance of the  safeguards provided therein, would not be relied upon by a court.   

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The confession should be made voluntarily without there being any  force or pressure put on, or allurement or inducement given to, a  person who is voluntarily admitting his guilt.   Under Section 25 of the  Indian Evidence Act, a confession made to the police officer is not  admissible in evidence to be considered by a court.  Although there  are certain exceptions in the preceding provisions, but the fact  remains that as a rule a confession made to the police officer is not  made admissible under the Evidence Act.   The idea appears to be  that any statement made to a police officer who is connected with the  investigation and prosecution of a person, would not be taken as  evidence.    Under Section 15 of the TADA Act, if a confession made  by the accused to a police officer not lower than the rank of  Superintendent of Police is made admissible, it would still be a  confession made to the police officer, and thus inbuilt safeguards  have been provided under Section 15 of the TADA Act read with Rule  15 of the TADA Rules so as to lend credence to the confession made  to the police officer, it being voluntarily and without any force or  pressure and allurement or inducement.   The Constitution Bench of  this Court in Kartar Singh (supra) has also laid down the condition to  establish the voluntary nature of the confession. 50.             Under sub-rule (3)(b) of Rule 15 of the Rules, the  certificate which is required to be given by the police officer should be  as under: "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.

                                               Sd/- Police Officer"

From a bare reading of the above certificate, it is clear that it is  necessary for the police officer to certify that he has explained to the  accused that the accused is not bound to make a confession and if  he does so such confession may be used as evidence against him.  It  is further required to be recorded that he believes that the confession  was voluntarily made.  He has to record that the confessional  statement has been taken in his presence and hearing and recorded  by him.  The confessional statement should be read over to the  person making it and admitted by him to be correct and it should be  certified that it contains a full and true account of the statement made  by the accused.   The certificate which is required to be given by the  police officer is not a mere formality, but it is for the purposes of  ascertaining that the police officer has recorded the confession  keeping in mind and being fully aware of the fact that the confession  recorded by him is a voluntary confession and with the information  available to the accused that he is not bound to make such  confession and if he does so it will be used as evidence against him.    A duty is cast on the police officer who is to record the confession to  bring at the relevant time these facts to the notice of the person  whose confession is going to be recorded.     51.             In the present case, we have gone through the certificate  given by the police officer (PW-42) at the bottom of the confessional  statement, translated version of which is to the following effect:-

          "I am satisfied that the aforementioned confession has been  given by the accused voluntarily and that no pressure or threat has  been given to him.   I believe that the accused knows that the  statement will be used as evidence in the Court and he also knows  that he is not compelled to give such statement.  He has signed the  statement after he has been explained the statement in Hindi.  The  statement commenced at 9.00 and completed at 10.25."  

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From the aforesaid certificate, it does appear that compliance of Rule  15(3) (b) of the TADA Rules has been done in a mechanical manner.   It does only certify that it is the satisfaction of the recording officer  that the facts that the accused is not bound to make the confession  and if he does so it shall be used as evidence against him, were  known to the accused. However, there is no certification that the  statement was recorded in the presence and hearing of the police  officer; nor the statement has been admitted to be correct by the  accused; and that the statement contained a full and true account of  what was stated by the accused.  52.          We have also noticed the fact that in spite of the directions  issued by this Court in Kartar Singh (supra), the accused whose  statement was recorded under Section 15 of the TADA Act on  5.5.1995 and 8.5.1995 was not produced before the Chief  Metropolitan Magistrate or Chief Judicial Magistrate to whom the  statement is required to be sent under Rule 15(5) along with original  statement of confession.   Instead, the accused was sent back to the  police custody after recording of his confessional statement.  Though  this Court in later cases like S.N. Dube’s case (supra) and Lal Singh  v. State of Gujarat and Another, (2001) 3 SCC 221 has held that  compliance of the guidelines issued in Kartar Singh (supra) was not  mandatory as they were not incorporated in the Act or in the Rules,  nevertheless, if proved to be followed they would have added a ring  of credibility to the prosecution story, particularly when he was  arrested on 28.4.1995 and there was ample opportunity to do so.  53.             The Designated Court on overall consideration of the  evidence brought on record in regard to the confessional statement  recorded of the accused Mushraf has not found it voluntary.  We have  been taken through the reasoning given by the Designated Court.  On  considering the evidence independently and legal provisions, we are  of the view that the Designated Court has not committed any error in  rejecting the confessional statement of accused Mushraf.  We do not  find that the acquittal of Mushraf is contrary to the established  principles of law or that the evidence which has come on record  proves the case against Mushraf beyond reasonable doubt for his  involvement in the commission of crime. 54.             For the aforesaid reasons, the order of acquittal recorded  by the Designated Court in respect of all accused persons except  accused no. 8/respondent no. 5 herein-Gurnamsingh, is confirmed.   We find respondent no. 5-Gurnamsingh guilty for the offence  punishable under Section 5 of the TADA Act and accordingly convict  him.  He is sentenced to suffer rigorous imprisonment for five years  and to pay a fine of Rs.2,000/- only and in default to suffer rigorous  imprisonment  for six months.   The said accused is on bail.  He shall  be immediately taken into custody to serve the sentence.    55.             The appeal stands disposed of.