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CASE NO.: Appeal (crl.)  732 of 2001

PETITIONER: State of Rajasthan

RESPONDENT: Ajit Singh & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B.SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 732 OF 2001

HARJIT SINGH BEDI,J.

1.              This appeal under section 19 of the Terrorist and Disruptive  Activities (Prevention) Act 1987 (hereinafter referred to as the "Act") has  been filed against the judgment of the Designated Court dated 2nd  December 2000 whereby all the accused have been acquitted for offences  punishable under sections 3 (3) & 4 (1) of the Act though Ajit Singh alone  has been convicted under Rule 3/6 of the Pass Port Rules 1950 and  awarded a sentence of 6 months simple imprisonment.  The facts leading  to the appeal are as under:-         2.      At about 10 a.m. on 12th August 1991 PW7 Hira Lal along  with PW9 Sada Nand, Narender Soni, Inspector Customs and several  other officers of the department were on patrol duty on the Indo Pakistan  Border in Jaisalmer district of Rajasthan.  As they reached village  Avaya, a Jonga bearing No. RSS 3479 which was coming from the  opposite direction was stopped by them as some suspicions had been  raised.  On enquiry it transpired that the vehicle driver was Shri Ram  Vishnoi and the passenger was Ajit Singh @ Jeeta who disclosed that  they were returning from the house of Mehardeen son of Allabachaya, a  resident of village Avaya, who with the assistance of one Abdul Aziz,  had on several occasions brought arms and ammunition from Pakistan  for transportation to Punjab so as to further the terrorist effort towards  the creation of Khalistan.  Abdul Aziz aforesaid was also interrogated  and he confirmed Ajit Singh’s statement.  Ajit Singh and Abdul Aziz  were then handed over to the SHO Police Station Nachna at 9.15 a.m. on  14th August 1991 on which a formal FIR was registered. PW13 S.I.  Amara Ram started the investigation which revealed that as many 17  persons along with Ajit Singh and Abdul Aziz had been involved in the  smuggling activity and many of the suspects were later arrested.  Seven  of the accused i.e. Ajit Singh, Abdul Aziz, Noordeen, Mehardeen, Nihal,  Sumar and Rasool were also produced before the Superintendent of  Police, Jaisalmer,  PW8 Shri Rajeev Dasot who recorded their  confessions under section 15 of the Act on different dates between  September 21, 1991 and February 28, 1992 and as a consequence of the  information received thereby, camels and vehicles allegedly used in the  smuggling were recovered. Mehardeen’s statement in addition led to the  recovery of a AK-56 rifle and two magazines with 44 cartridges.  It  appears that accused Sujia and Danu Ram were discharged by the order  of the court,  whereas Laldeen was declared an absconder and Noordeen  died during the course of the trial.   The other accused were accordingly  charged under Sections 3(3) & 4(1) of the Act whereas some of the  accused were charged in addition for offences punishable under the  Arms Act and the Passport Act.  The Designated Court examined fifteen  witnesses in all.  Primary, reliance was placed on the statements of   Kishan Ram PW5, PW7 Hira Lal, Rajeev Basot PW8, Sada Nand PW9

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and Anara Ram PW13.  The prosecution evidence was then put to the  accused and they denied their involvement and on the contrary alleged  that the Police Officers who were investigating the matter had made  demands for illegal gratification and on their refusal to meet their  demands they had been involved in a false case.  They also produced  several witnesses in defence.                                                    3.      The trial court held that the confession given by  Ajit Singh alias  Guru Lal to Customs Officer, PW7 Hira Lal was liable to be believed as  Hira Lal’s evidence was corroborated by the statement of Customs  Inspector PW9 Sada Nand.  The trial court further observed that it would  have been appropriate for the officers who had investigated the matter  and recorded the confession made by Ajit Singh in which he had stated  that he had been smuggling arms to Punjab so as to facilitate the creation  of Khalistan but PW13 Anara Ram had admitted that he had made no  enquiries to verify the correctness of this statement or to make a further  investigation in that direction was a glaring circumstance in favour of  the accused.  The court then examined the statements of PW8 Rajeev  Dasot, SP of Jaisalmer who had recorded the confessions under section  15 of the Act and observed that no infirmity had been pointed out with  respect to the procedure adopted and though the Court could record a  conviction on the basis of the confession it would not be safe to do so on  this basis alone and that it was appropriate that the confessional  statement should be corroborated by other evidence.  The Court also  noted that though Ajit had admitted his involvement in terrorist activities  none of the other accused had made incriminating confessions.  The  court also observed that though the confession made by an accused  could be used against a co-accused but it was clear from the confessional  statements that none of the accused had admitted that they had been  aware of Ajit Singh’s involvement in terrorist activities and the mere  fact that they had accepted that they had received payment for assisting  him in smuggling arms and ammunition did not by itself indicate that  they were aware of the end use of the weapons and as such the rules of  prudence required evidence beyond their confessions to support the  prosecution story.  The court then concluded that the only evidence  which was available against the accused were the recoveries of  Rs.5,000/- and a camel  from Abdul Aziz and camels from Mehardeen,  Mohammed, Kasam, Ibrahim, Naseer, Nihal, Rasool and Kamardeen, a  Jonga Jeep from Shri Ram and another Jeep from Danu Ram (since  discharged)  but rejected the inference of culpability holding that there  was no evidence to show that the jeeps or the camels and the cash had  been used in the attempt to smuggle arms and ammunition from  Pakistan.  The trial court accordingly acquitted all the accused for the  offences punishable under Sections 3(3) and 4(1) of the Act and under  the Arms Act and on the basis of the above discussion, only Ajit Singh  was convicted for having violated the Passport Rules.  This appeal at the  instance of the State has been filed against the judgment of acquittal. 4.      We have heard the learned counsel for the parties at great length.    The learned counsel for the State appellant has, at the very outset, and  fairly,  pointed out that he was confining his challenge only with respect  to those of the accused respondents who had made confessions before  Shri Rajeev Basot PW8, as admittedly no evidence against the other  accused had come on record.  He has drawn our attention to Jameel  Ahmed & Anr. Vs. State of Rajasthan 2003 (9) SCC 673 to contend that  a confession made under section 15 of the Act was per-se admissible in  evidence and that such a confession could be used as corroborative   of  the  confessional statement of the other co-accused.  He has also argued  that the presumptions in favour of the prosecution under section 21(1) of  the Act placed a heavy onus on the accused and that this onus had not  been discharged in the course of the trial.  He has also submitted that the  statements of the Customs Officers with regard to the confessions made  by Ajit Singh and Abdul Aziz had also to be taken as a corroborative  factor vis-‘-vis these two accused.  It has finally been pleaded that it was  clear from the statements of the accused and the other evidence that Ajit  Singh and Mehardeen had committed offences under section 25(3) of the  Arms Act as well.

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5.      Mr. J.S. Sodhi the learned counsel for some of the accused has,  however, submitted that no offence even prima facie under the Act had  been made out against the accused and that it could, if at all, and its best  be said for the prosecution that an offence under section 3(3) of the Act  stood proved against Ajit Singh alone and no offence under section 4(1)  was made out against him as well.  He has also urged that no question had  been put to any of the accused in their statements recorded under section  313 of the Cr.P.C. as to their involvement in terrorist activities in Punjab  which made the prosecution story completely bereft of merit.  Referring  to the value of the confessions made by the seven accused, he has pointed  out that they were not voluntary, and had subsequently been retracted, and  the story projected was inherently improbable and that Rule 15 of the  Terrorist and Disruptive Activities (Prevention) Rules, 1987 hereinafter  called "the Rules" which required strict compliance with the safeguards  stipulated therein before a confession could be recorded, too had been  violated.  He has also urged that confession of an accused could not be  used as corroborative of the statement  of another accused, as held by the  Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu 2005(11) SCC  600.  It has finally been pleaded that there was no evidence to implicate  any of the accused in the Arms Act case as Ajit Singh had at no stage  admitted that he had handed over the weapons to Mehardeen.   6.              We have considered the arguments advanced by the counsel  and gone through the record carefully.  At the very outset, it must be  emphasized that the Act is a harsh penal statute and its provisions must  therefore be construed in that perspective.  In Kartar Singh vs. State of  Punjab 1994 (3) SCC 569, this Court while upholding the constitutional  validity of the Act served a note of caution and laid down certain  guidelines in applying the statute to individual cases.  It has therefore to  be seen at the very initial stage as to whether the case would fall within  the mischief  of sections 3(3) and 4(1) of the Act.     Section 2 is the  definition clause.  Sub-clause (d) of sub-section (1) of section 2 of the Act  describes ’disruptive activities’ as having the same meaning assigned to it  under section 4 whereas ’terrorist Act’  under sub-clause (h) of sub- section (2) defines "Terrorist Act" as having the same meaning assigned  to it in sub-section (1) of section (3) of the Act.  We reproduce sections 3  and 4 (1) and (2) of the Act hereinbelow:-         "Sec.3.  Punishment for terrorist acts.- (1) Whoever with  intent to overawe the Government as by law established or to  strike terror in the people or any section of the people or to  alienate any section of the people or to adversely effect the  harmony amongst different sections of the people does any  act or thing by using bombs, dynamite or other explosive  substances or inflammable substances or fire-arms or other  lethal weapons or poisons or noxious gases or other  chemicals or by any other substances (whether biological or  otherwise) of a hazardous nature in such a manner as to  cause, or as is likely to cause, death of, or injuries to , any  person or persons or loss of, or damage to, or destruction of,  property or disruption of any supplies or services essential to  the life of the community, or detains any person and threatens  to kill or injure such person in order to compel the  Government or any other person to do or abstain from doing  any act, commits a terrorist act.

       (2)Whoever commits a terrorist act, shall, -                 (i) if such act has resulted in the death of any  person, be punishable with death or imprisonment for life and  shall also be liable to fine;                 (ii) in any other case, 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.         (3) Whoever conspires or attempts to commit, or  advocates, abets, advises or incites or knowingly facilitates  the commission of, a terrorist act or any act preparatory to a

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terrorist to act, shall 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  five."   

       Section 4.  Punishment for disruptive activities. \026 (1)  Whoever commits or conspires or attempts to commit or  abets, advocates, advises, or knowingly facilitates the  commission of, any disruptive activity or any act preparatory  to a disruptive activity shall 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.

(2) For the purposes of sub-section (1), "disruptive activity"  means any action taken, whether by act or by speech or  through any other media or in any other manner whatsoever,-         (i) which questions, disrupts or is intended to disrupt whether  directly or indirectly, the sovereignty and territorial integrity  of India; or          (ii) which is intended to bring about or supports any claim,  whether directly or indirectly, for the cession of any part of  India or the secession of any part of India from the Union."

7.      The question which must be posed at the outset is as to whether the  activities of the accused as alleged by the prosecution fall within the  parameters of Section 3(3) and 4(1), the two provisions under which they  have been charged.  A bare perusal of Section 3(3) would reveal that it  would be applicable only if the accused "knowingly" facilitated the  commission of a terrorist act or any act preparatory to a terrorist act.  It  needs to be highlighted that the primary circumstance against all the  accused are the confessions made by them and but for the confession of  Ajit Singh none of the other confessions show or betray any knowledge  on the part of those making the confessions that the weapons had been  smuggled in for use in terrorist activity.  It is also significant, and we have  perused the statements very carefully, that no question was put to any of  the accused under section 313 of the Cr.P.C. as to their involvement in  any terrorist or disruptive activity.  The sine-qua-non for the applicability  of sub-section (3) of Section 3 and sub-section (1) of Section 4 of the Act  that is ’knowingly facilitates’ the commission of the offence is thus not  made out on facts.  We have in addition gone through the statement of  PW13 Anara Ram, the investigating officer, and he admitted that no  investigation had been made to follow up the confessions and disclosures  of Ajit Singh that the weapons that he had been smuggling from Pakistan  had been handed over to terrorists in Punjab, although, he admitted that a  Deputy Superintendent of Police, one Dilip Singh, had come from Punjab  and had told him that Ajit Singh was indeed a hardened terrorist.  Anara  Ram also admitted that he had received a letter from Dilip Singh to that  effect but had not made a mention of this communication in his case diary  and had not even appended it with the challan.  The trial court has,  therefore, in our view rightly observed that had an investigation been  directed towards the terrorist activities in Punjab, the possibility that  something more incriminating against the accused could have been  revealed but in the absence of any evidence a decision in favour of  accused was liable to be taken.  The court accordingly concluded that the  confessional statement of Ajit Singh made before PW 8 Rajeev Basot  incriminated him alone in terrorist activities and that there was no  evidence against any of the other accused. 8.      A bare perusal of sub-section (1) of section 4 would also show that  no evidence to bring home the charge under this provision has been  produced against any of the accused. To our mind, the decision of the  designated court on this aspect too is well-merited. 9.      The learned counsel for the appellant has however laid great  emphasis on the value of the confessions made by seven of the accused  under section 15 of the Act to Shri Rajeev Basot PW8 Superintendent of

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Police Jaisalmer.   Section 15 of the Act and Rule 15 of the Rules are  reproduced hereinbelow:-         "Sec.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 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 (or co-accused, abettor or conspirator) for an  offence under this Act or rules made thereunder:

               Provided that co-accused, abettor or conspirator is  charged and tried in the same case together with the  accused.

       (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 had reason  to believe that it is being made voluntarily."

Rule 15. Recording of confession made to police officers. \026  (1) A confession made by a person before a police officer  and recorded by such police officer under section 15 of the  Act shall invariably be recorded in the language in which  such confession is made and if that is not practicable, in the  language used by such police officer for official purposes or  in the language of the Designated Court and it shall form  part of the record. (2) The confession so recorded shall be shown, read or  played back to the person concerned and if he does not  understand the language in which it is recorded, it shall be  interpreted to him in a language which he understands and  he shall be at liberty to explain or add to his confession. (3) The confession shall, if it is in writing, be \026 (a) signed by the person who makes the confession and (b) by the police officer who shall also certify under his  own hand that such confession was taken in his presence  and recorded by him and that the record contains a full and   true account of the confession made by the person and such  police officer shall make a memorandum at the end of the  confession to the following effect :-                 " I have explained to (name) that he is not bound to  make a confession and that, if does not, 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." (4) Where the confession is recorded on any mechanical  device, the memorandum referred to in sub-rule (3) in so far  as it is applicable and a declaration made by the person  making the confession that the said confession recorded on  the mechanical device has been correctly recorded in his  presence shall also be recorded in the mechanical device at  the end of the confession. (5) Every confession recorded under the said Section 15  shall be sent forthwith to the Chief Metropolitan Magistrate

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or the Chief Judicial Magistrate having jurisdiction over the  area in which such confession has been recorded and such  Magistrate shall forward the recorded version so received to  the Designated Court which may take cognizance of the  offence."

10.     It will be seen that section 15 is a clear departure from the general  law that a statement made to a police officer is not permissible in  evidence.  In Kartar Singh’s case (supra), this Court while upholding the  vires of section 15 repeatedly dwelt on the severity of this provision as  one laying down altogether a new procedure and emphasized that the  provisions of the Act and Rules must be scrupulously observed with  particular reference to the provisions relating to the recording of  confessions.  11.     A serious challenge has been made by Mr. Sodhi to the effect that  the confessions had not been recorded as per the procedure laid down and  that Rule 15(5) which provided for the submission of a special report to  the Illaka Magistrate had been infracted.   It has also been emphasized  that all the accused had been in police custody for 40 to 43 days when  their confessions had been recorded and it appeared that adequate time for  reflection had not been given which raised the possibility that they had  been hustled into their confessions.  The learned counsel has cited Ranjit  Singh vs. State of Punjab 2002 (4) Crl.L.J. 4694 to argue that if adequate  time for reflection was not given a confession could be said to  involuntary.  He  has also drawn our attention to the statement of PW-8  Shri Rajeev Basot who deposed that before the confessions had been  recorded the accused concerned  had been released from police custody  and he had been asked as to whether he was being coerced into giving a  confessional statement and fore-warned that the confession could be used  against him.             12.     We have perused the confession of the seven accused and the  prefatory proceedings relating thereto.  We first examine the confession  made by Noordeen.  From Ext.P-18, the note recorded by Shri Ranjit  Dasot as  a prelude to the recording of the confession, it transpires that he  had been produced before him at 12.30 p.m. on the 21st September 1991  and after the completion of the formalities the recording of the confession  had started at 12.45 p.m.  Likewise Ajit Singh @ Guru Lal Singh had  been produced before the officer at 10.50 a.m. and the recording of the  confession had started half an hour later.  We have seen the record of  confessions of the other accused as well and it shows that 15 to 30  minutes time was given to the accused for reflection before the actual  confessions were recorded.  We accordingly find that sufficient cooling  off  time had not been given to the accused, in the background that they  had been in police custody over a long period of time.   It has been held in  Ranjit Singh’s case  (supra):                                                    "According to the deposition of P.W.3 in cross- examination, the accused were in police custody 18-20 days  prior to recording of their confessional statements.  P.W.3 has  deposed that he gave the requisite warning to the accused that  they were not bound to make the confessional statement and if  they make it will be used as evidence against them, but despite  the warning they were prepared and willing to make the  statement.  After recording the introductory statement in this  behalf in question answer form he still considered it proper to  give them some time for rethinking and for this purpose they  were allowed to sit in separate room for some time and  brought to him after about half an hour and expressed their  desire to make statement and thereafter the confessional  statement were recorded.

       Before adverting to the facts said to have been narrated by  the accused as recorded in the two confessional statements, it  deserves to be noticed that in case the recording officer of the  confessional statement on administering the statutory warning

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to the accused forms a belief that the accused should be  granted some time to think over the matter, it becomes  obligatory on him to grant reasonable time for the purpose to  the accused.  In other words, the cooling time that is granted  has to be reasonable.  What time should be granted would, of  course, depend upon the facts and circumstances of each case.   At he the same, however, when the time to think over is  granted that cannot be a mere farce for the sake of granting  time.  In a given case, depending on facts, the recording officer  without granting anytime may straightway proceed to record  the confessional statement but if he thinks it appropriate to  grant time, it cannot be a mechanical exercise for completing a  formality.

               In Sarwan Singh Rattan Singh vs. State of Punjab (AIR  1957 SC 637), where a Magistrate granted about half an hour  to the accused to think over and soon thereafter recorded the  confessional statement, this Court reiterated that when an  accused is produced before the Magistrate by the Investigating  Officer, it is of utmost importance that the mind of the accused  person should be completely freed from any possible influence  of the police and the effective way of securing such freedom  from fear to the accused person is to send him to jail custody  and give him adequate time to consider whether he should  make a confession at all.  It would naturally be difficult to lay  down any hard and fast rule as to the time which should be  allowed to an accused person in any given case."

14.     Applying the aforesaid principles to the facts of the present case,  we are of the opinion that adequate time had not been given to any of the  accused as they had been in police custody for almost 45 days in each  case.  We also observe that there is no evidence on record to suggest that  the special report envisaged under sub-rule (5) of Rule 15 had been  submitted to the Magistrate.  The confessions cannot therefore be taken  into account for any purpose.                  15.       The learned Government counsel has nevertheless argued  that in the light of the judgment of this Court in Jamil Ahmed’s case  (supra) the confessional statement made by Ajit Singh implicated all the  other accused in terrorist and disruptive activities and as such could be  used against them as well.  We notice Jamil Ahmad’s matter pertained to  an incident which happened in December 1990.  In paragraph 22 this  Court while dealing with the questions as to whether sections 25 to 30 of  the Evidence Act would apply to confessions recorded under section 15  of the Act observed:         "Since the prosecution case in these appeals is primarily  founded on various confessions of the accused involving  themselves as well as other co-accused, we will first  consider the argument of the appellants that, assuming that  the confessional statements have been proved to have been  made in accordance with law and voluntary and truthful,  even then can such confessions be relied upon solely to base  a conviction on the maker of the confession, and if so, can it  also be used against a co-accused and if so whether such  confession requires corroboration or not, and if so required  whether such corroboration need be general or should be of  all material facts in the confession.  The argument of  learned counsel in this regard is that the prosecution should  prove the involvement of the accused by other evidence first  and the confession of an accused can only be used as a  corroborative piece of evidence and not as a substantive  piece of evidence, that too against the maker only.  This  argument is basically founded on an assumption that  sections 25 to 30 of the Evidence Act also apply to the  confessions recorded under section 15 of the TADA Act.  In  support of this argument, the learned counsel relies on the

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line of judgments of this Court which considered the scope  of sections 25 to 30 of the Evidence Act and the probative  value of such a confession; one of such judgments is Mohd.  Khalid v. State of W.B  The passage relied upon by the  appellants in support of this contention of theirs in the said  judgment runs thus : (SCC p.357,para 31)         "It is only when the other evidence tendered against the  co-accused points to his guilt then the confession duly  proved could be used against such co-accused if it appears  to effect (sic) him as lending support or assurance to such  other evidence."

16.     It has accordingly been emphasized that the statement made by the  accused could be used one against the other.  Mr. Sodhi has however  pointed out that the decision in Jamil Ahmed’s case had been rendered  without noticing that the words in section 15(1) of the Act (which have  been underlined above) that is   "or co-accused, abettor or conspirator"  had been inserted in the Act in 1993 and as such could not be  retrospectively applied to an incident of 12th August 1991.  He has also  referred us to  State (NCT of Delhi) v. Navjot Sandhu  2005 (11) SCC  600  to submit that this issue had been specifically  raised and while  noticing the addition made in 1993 it had been  observed that a  confessional statement recorded under section 15 would be sufficient to  base a conviction on the maker of the confession but on the other  proposition whether such a confession could be used against a co-accused  was another matter.   This Court distinguished Jamil Ahmed case and  observed thus in Paragraph 49:                 "It is, however, the contention of the learned  counsel Shri Gopal Subramanium that Section 32(1)  can be so construed as to include the admissibility of  confession of the co-accused as well.  The omission of  the words in POTA "or co-accused, abettor or  conspirator" following the expression "in the trial of  such person" which are the words contained in Section  15(1) of TADA does not make material difference,  according to him.  It is his submission that the words  "co-accused", etc. were included by the 1993  Amendment of TADA by way of abundant caution and  not because the unamended section of TADA did not  cover the confession of the co-accused.  According to  the learned Senior Counsel, the phrase "shall be  admissible in the trial of such person" does not restrict  the admissibility only against the maker of the  confession.  It extends to all those who are being tried  jointly along with the maker of the confession provided  they are also affected by the confession.  The learned  Senior Counsel highlights the crucial words "in the trial  of such person" and argues that the confession would  not merely be admissible against the maker but would  be admissible in the trial of the maker which may be a  trial jointly with the other accused persons.  Our  attention has been drawn to the provisions of Cr.P.C.  and POTA providing for a joint trial in which the  accused could be tried not only for the offences under  POTA but also for the offences under IPC.  We find no  difficulty in accepting the proposition that there could  be a joint trial and the expression "the trial of such  person" may encompass a trial in which the accused  who made the confession is tried jointly with the other  accused.  From that, does it follow that the confession  made by one accused is equally admissible against  others, in the absence of specific words?  The answer,  our view, should be in the negative.  On a plain  reading  of Section 32(1), the confession made by an accused  before a police officer shall be admissible against the

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maker of the confession in the course of his trial.  It  may be a joint trial along with some other accused; but,  we cannot stretch the language of the section so as to  bring the confession of the co-accused within the fold  of admissibility.  Such stretching of the language of law  is not at all warranted especially in the case of a law  which visits a person with serious penal consequences  [vide the observations of Ahmadi,J.(as he then was) in  Niranjan Singh v. Jitendra, SCC at p.86, which were  cited with approval in Kartar Singh case].  We would  expect a more explicit and transparent wording to be  employed in the section to rope in the confession of the  co-accused within the net of admissibility on a par with  the confession of the maker.  An Evidentiary rule of  such importance and grave consequence to the accused  could not have been conveyed in a deficient language.   It seems to us that a conscious departure was made by  the framers of POTA on a consideration of the pros and  cons, by dropping the words "co-accused",etc.  These  specific words consciously added to Section 15(1) by  the 1993 Amendment of TADA so as to cover the  confessions of the co-accused would not have escaped  the notice of Parliament when POTA was enacted.   Apparently, Parliament in its wisdom would have  thought that the law relating to confession of the co- accused under the ordinary law of evidence, should be  allowed to have its sway taking a cue from the  observations in Kartar Singh case at para 255.  The  confession recorded by the police was, therefore,  allowed to be used against the maker of the confession  without going further and transposing the legal position  that was obtained under TADA.  We cannot  countenance the contention that the words "co- accused",etc. were added in Section 15(1) of TADA, ex  majore cautela."

17.     It is therefore clear that the Division Bench in Navjot Sandhu’s case  clearly repelled the contention raised by the State counsel that a  confession made by an accused could be used as against a co-accused.   Some argument has also been addressed ( based on the observations in  Jameel Ahmed and Navjot Sandhu’s cases (supra) ) that even assuming  that confessions had been made it had still to be found whether they were  a true and accurate narrative of the facts.  We have gone through the  confessional statements of the seven accused and we observe that  Noordeen who says that they had received weapons from Ajit Singh is not  corroborated by Ajit Singh who has not said a word as to whether he had  handed over any weapon to any person.  We reiterate that there is not  even a suggestion in the evidence that the money that had allegedly been  handed over to some of the accused was payment for the Jonga or the  camels used for smuggling arms from Pakistan to be used in Punjab.   18.     The learned counsel for the State has however submitted that in the  light of the presumptions drawn under section 21 of the Act it had to be  found that the arms and ammunition were to be used in terrorist activity  and a heavy onus lay on the accused.  We find this provision would be  applicable only if it is "proved" that the arms and ammunition had been  recovered from the accused and had been used in the manner laid down in  section 3.  We have on the contrary found that there is no evidence to  show a recovery of weapons or that any of the accused (other than Ajit  Singh) had any knowledge as to the ultimate destination and end use of  the weapons that had been brought in.  The presumption therefore under  section 21(2) cannot therefore be raised in the present case.  In the light of  what has been held, we are of the opinion that the other arguments raised  by the learned counsel for the parties with regard to the recoveries etc.   pale   into insignificance and do not require any discussion.  We  accordingly dismiss the appeal.