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PETITIONER: STATE OF TAIML NADU

       Vs.

RESPONDENT: SIVARASAN ALIAS RAGHU ALIAS SIVARASA & OTHERS

DATE OF JUDGMENT:       31/10/1996

BENCH: G.N.  RAY, G.T. NANAVTI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATl, J.      This appeal arises out of the judgment and order of the Principal Sessions  Judge and  Designated Court, Coimbatore, in C.C  No. 61  of 1992.  As the learned Judge acquitted the accused, the State has filed this appeal under Section 19 of the Terrorist  and Disruptive  Activities (Prevention)  Act, 1987 (hereinafter referred to as the ’TADA Act’).      The prosecution  case is  that Shivarajan  alias  Raghu (Respondent/Accused  No.1)   and  Vigneswaran   alias  Vicky (Respondent/Accused No.2)  who were Sri Lankan nationals and members of  LTTE came  to India sometime in 1989 without any travelling documents.  So also,  Guna and Dixon who were Sri Lankan nationals  and members  of LTTE  had come to India in the like  manner. Since  then they were engaged in obtaining explosive substances,  manufacturing bombs  and sending them to LTTE  in Sri Lanka. In the said clandestine activity they were helped  and assisted  by Respondent Nos.3 to 9 (Accused Nos.  3   to  9)   who  are   Indian  nationals.   Till  the assassination of  Rajiv Gandhi  on 21.5.91, they could carry on the  said activity  without any hinderance. Thereafter it became difficult  for them  to do  so as  the whole of Tamil Nadu was  declared as  a  Notified  Area  with  effect  from 23.6.91, under  Section 2(1)(f) of TADA Act and also because the Government  of India  and the  Government of  Tamil Nadu tightened security  measures within the State of Tamil Nadu. The police  was also on look out for Sri Lankans who did not possess passport  and visa for staying in India and had also required the  house owners  to report  to  it  if  such  Sri Lankans were found to be occupying their houses. Due to such strict measures  A-1, A-2, Guna and Dixon found it difficult to  obtain   accommodation  for   their  residence  and  for manufacturing bombs  and storing  them and,  therefore, they went on  changing houses after taking them on rent by making misrepresentations. Since  February 1991  A-1 and  Guna  had taken on  rent one  house bearing Door No.11/12A situated in Shivaji  Colony   in  Coimbatore.   Dixon  and  others  were occupying a  different house  in Coimbatore. As the LTTE was in desperate need of hand grenades and bombs and wanted them to be  supplied latest  by the  end of  first week of August

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1991, A-1 to A-5 and A-7 to A-9 and Guna met at the house of A-1 in  Shivaji Colony  and decided  to manufacture and send them to Sri Lanka and also to strike terror in the people by using bombs  or other  explosives and thereby causing damage to Indian  property or  death, or injuries to Indian leaders and other  persons if  they came  in their way. All the nine accused along  with Guna  and Dixon continued to manufacture different parts of hand grenades and plastic bombs and store them at  different places.  A-1 and  A-2  were  required  to change their residence from Shivaji Colony to a house in Dr. Muthuswamy Colony  as the  owner of  the house  objected  to their suspicious  activities. On  28.7.91, A-1 and A-2 after making necessary  arrangements  for  transporting  the  hand grenades and  plastic bombs  manufactured by  them with  the help of  other accused  and which  were to  be  filled  with explosives at Trichy returned to the house in Dr. Muthuswamy Colony. They found police standing near their house. So they went to  another house  where some  more articles were kept. There they  came to  know that  Guna and Dixon had committed suicide as the police surrounded their house.      In the  evening A-1  and A-2  were going  on a  Kinetic Honda scooter. P.W.1 Pandurangan, a traffic police constable signalled them  to stop  as he  noticed that the scooter was being driven very fast. Instead of stopping the scooter, A-1 who was  driving it, attempted to dash it against him. P.W.1 jumped aside and saved himself. After covering some distance A-1 and  A-2 fell  down on  the road along with the scooter. P.W.1 then  went to  that place  and asked  A-1 to  show his licence. A-1  challenged him  by saying as who he was to ask for a  licence. A-1  then said  "if this  police man is done away with,  this police department will then understand". He also threatened  P.W.1 by  stating that if he tried to catch him, beat  him or  send him  out of  the  country  he  would destroy the  entire Tamil  Nadu. P.W.1 suspecting them to be LTTE terrorists,  shouted for  help and  blew  his  whistle. Thereupon A-1  attempted to start the scooter but it did not start.  Hearing  the  shouts  and  the  whistle  two  police constables, Sivagnanam and P.W.2 Devasayayam came there. The three police constables with the help of other persons tried to take  both the  accused in custody. At that time A-1 took out a  cyanide capsule from his pant pocket and attempted to put it  in his  mouth. P.W.1  pushed his  hand aside and the capsule fell  down on  the road.  The police constables then took both  the accused  to Thoodivalur police station. There P.W.1 lodged a complaint against them under Section 353, 307 and 309  I.P.C. On  the basis  of this  complaint  Inspector Angamuthu, P.W.55 started the investigation. On the basis of further information  other charges  under the  TADA Act  and Explosive Substances  Act, 1908  were also added. During the investigation various incriminating articles like incomplete grenades or  bombs or  their parts  and the vehicles used in transporting the same were discovered at the instance of the accused or were recovered from there possession.      On these  allegations, A-1  to A-5  and A-7 to A-9 were charged for the offences punishable under Section 120-B read with Section  3 (3)  of the TADA Act. A-1, A-3 to A-5 and -7 to A-9  were also  charged for the offences punishable under Sections 3 (3) and 5 of the TADA Act. They were also charged for commission  of  the  offence  under  Section  4  of  the Explosives Substances  Act. A-6  was charged under Section 5 of the  TADA Act  and Section 4 of the Explosives Substances Act, A-1 and A-2 were further charged under Section 307 read with Section  34 I.P.C. A-1 was individually charged for the offences punishable under Sections 353 and 309 I.P.C.      In order  to  prove  the  conspiracy  the  prosecution,

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relied upon  the evidence  of P.W.  21 Prem  Kumar, P.W.  38 Kumar, confessional statements of A-2 and A-9 and also take, evidence of  other witnesses  who deposed  that between  the first week  of July  1991 and  3.8.1991 they had either seen some of  the accused  together or  seen them  manufacturing, storing and transporting parts of bombs and grenades. As the charge against the accused regarding conspiracy was specific that said  conspiracy was hatched during that period, in the house bearing  Door No.11/12A of Shivaji Colony, the learned trial judge  held that  it was necessary for the prosecution to prove  that the  conspiracy was hatched as alleged. After appreciating the  evidence of  prosecution witnesses in this behalf the  learned trial judge held that the said house was vacated by  A-1 on  3.7.91 and that there was no evidence to show that  during the first week of July 1991, when the said house was in occupation of A-1 all the accused had met there and conspired  as alleged.  The learned  trial judge  having found that  between 11.7.91 and 28.7.91 A-1 and Guna resided in a  different house  situated in  Dr. Munusami  Colony and that there  was no  evidence to show that A-1 to A-5 and A-7 to A-9  and deceased  Guna were  found together in any place during the  period from first week of July to 3.8.91 and had agreed to  do any  illegal act,  held  that  the  charge  of conspiracy was not proved.      Though  the   prosecution  had  also  relied  upon  the confessional statements of A-2 and A-9 in order to prove the charge of  conspiracy the  learned judge  did not  take them into consideration  as he was of the view that they were not recorded in  the manner prescribed by Section 15 of the TADA Act and Rule 15 of the TADA Rules and therefore could not be accepted in  evidence. In  the alternative he held that even if they  were accepted  as evidence  they alone could not be made the  basis for  conviction of  the  accused.  To  prove possession of  bombs, grenades  and explosive  substances by the accused  the prosecution had relied upon the evidence of those witnesses  who deposed  about their  having seen their accused  either   making  purchases  of  raw  materials  for preparing hand  grenades or  bombs or manufacturing parts of the bombs  or transporting  such parts  and  also  of  those witnesses  in   whose  presence  such  parts  and  explosive substances were  recovered. For proving this charge also the prosecution had  relied upon the two confessional statements of A-2  and A-9.  The learned  judge held  that the evidence regarding recovery  of the articles from various accused was not sufficient.  Therefore, this charge was also held as not proved. In  the alternative the learned judge held that even if it  was believed  that such  articles were recovered from the possession  of A-1  and  A-3  to  A-9  and  even  though articles seized  by the  police were explosive substances as defined by  Section 2 of the Explosive Substances Act, there was no  evidence to show that they were possessed either for the purpose  of committing  terrorist acts or for supporting or abetting  terrorist acts or with an intention to endanger life or  to cause  serious injury  to any person in India by means thereof  or to  cause serious  injury to  property  in India and,  therefore, they  could not  be held guilty under Section 5  of the  TADA Act  and Section  4 of the Explosive Substances  Act.  The  learned  judge  also  held  that  the sanction given  by the  District Collector, to prosecute the accused under  the Explosive  Substances Act was not a valid sanction and,  therefore, also  they could  not be convicted under Section  4  of  the  Explosive  Substances  Act.  With respect to  the charges  under Sections  307,  353  and  309 I.P.C. he held that the evidence of P.W.1 Pandurangan, P.W.2 Devasayayam, P.W.3  Dhansekaran, P.W.4  Arumugam,  P.W.6  V.

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Arumugam and  P.W.7  Singaram  was  not  acceptable  as  the version given  by them was "artificial and unbelievable". He did not  consider the  charge against  A-1 under Section 309 I.P.C. as  the same was held void in view of the decision of this Court  in P.  Rathinam and Naghbushan Patnaik vs. Union of India  1994 (3)  SCC 394.  The learned  Judge, therefore, acquitted all  the  accused  of  all  the  charges  levelled against them.  Aggrieved by  the said order of acquittal the State has filed this appeal.      The learned  counsel appearing  for the appellant-State contended that  the trial court did not correctly appreciate the charge  regarding conspiracy and, therefore, the finding that conspiracy as alleged is not proved stands vitiated. He also contended  that on  an erroneous  view of  the law  the trial court  omitted  from  consideration  the  confessional statements, Exh.  53 and  Exh. 51  of A-2  and A-9.  He also submitted that  the finding  regarding the sanction given by the District  Collector under  Section 7  of  the  Explosive Substances Act  is bad  being contrary  to the  law and  the evidence. The  other findings  are challenged  on the ground that the  evidence relating  thereto has  not been correctly appreciated and  the reasons  given in  support thereof  are improper and untenable.      On the other hand the learned counsel appearing for the respondents supported  the findings  on the grounds given by the trial  court and  submitted that  the acquittal  of  the accused is  proper and  just  and  does  not  call  for  any interference by this Court.      We will first consider the charge of conspiracy and the evidence led  to prove it. The prosesution case was that as, after the  assassination of  Rajiv  Gandhi  on  21.5.91,  it became very  difficult for  A-1, A-2, Guna, Dixon and others who were  engaged in  manufacturing hand  grenades and bombs for the LTTE and as the LTTE was in dire need of those bombs latest by  the end  of the  first week  of August  1991, the accused met  at the house of A-1 and A-2 situated in Shivaji Colony in  the  first  week  of  July  1991  and  hatched  a conspiracy by  agreeing "to  commit illegal  acts by illegal means, to  strike terror  in the  people by  using bombs and other explosive  substances as was likely to cause death and injuries to  Indian Leaders  and people  who  might  prevent their unlawful  activities and  also to manufacture grenades and  explosive   substances  in   the   notified   area   of Coimbatore;".      Thus, the  charge framed  against the  accused was  not only that  they had  conspired to  commit terrorist acts but they had  also  conspired  to  manufacture  explosives  like grenades and bombs in the notified area. The learned counsel for the  appellant was,  therefore, right  in his submission that the  learned Sessions Judge did not properly appreciate what exactly  was the  charge against the accused and failed to consider  if the  charge that  they had also conspired to manufacture explosives was proved. He also rightly submitted that the charge against the accused was that the accused had entered into a criminal conspiracy in the first week of July 1991 in  House No. 11/12-A of Shivaji Colony and the illegal acts referred  to in  the charge were committed in pursuance of that  conspiracy between  first week  of  July  1991  and 3.8.91 and,  therefore, the  learned Sessions  Judge was not right in  holding that  the charge  of  conspiracy  was  not proved as  there was  no evidence  to establish that between 3.7.91 and  3.8.91 the accused had met in the said house and conspired to  commit the  said illegal acts. In view of this infirmity in  the judgment  we have carefully considered the evidence keeping in mind both these aspects.

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    The evidence of P.W.21 Prem Kumar establishes that A-1, A-2 and  Guna were  in possession  of his  house in  Shivaji Colony in the first week of-July 1991. What he was stated is that   his house  was taken  on rent  by  A-1  and  Guna  in February 1991 and they vacated it on 3.7.91. But there is no evidence except  the two  confessional statements  (Exhs. 51 and 53),  to prove  that A-1  to A-5  and A-7 to A-9 had met together in that house any time between 1.7.91 and 3.7.91.      It was  not the  prosecution case  that conspiracy  was hatched in any other manner or at any other place. Even with respect to  the circumstances relied upon by the prosecution that during  that period  some of  the accused  were  either residing or  moving together  or were helping each other, in order to   prove by way of an inference that the accused had conspired as  alleged, it has to be stated that the evidence of P.W.38  Kumar,  P.W.13,  P.W.41  and  P.W.45  is  neither specific nor  sufficient  to  justify  drawing  of  such  an inference. They  have generally  stated that A-3 to A-9 were helping A-1,  A-2, Guna and Dixon in obtaining raw materials or machines  required for manufacturing bombs or their parts or they  were manufacturing  parts  required  for  preparing bombs on orders placed by A-1 or Guna. In absence of further evidence to  show that  they had the knowledge or had shared the intention  with A-1,  A-2, Guna and Dixon that all those acts were  being done  for manufacturing bombs, no inference can be drawn that they were also party to the conspirecy.      The only other evidence led in the case consists of the case  confessional   statements  (Exhs.   51  and  53).  The confessional statement  of  A-2  (Exh.53)  was  recorded  on 17.8.91 by  Superintendent  of  Police  Shri  Muthukaruppan, P.W.53. As  disclosed by  his evidence  he had  informed A-2 that it  was not  necessary for him to give such a statement and in spite of that if he save it, it could be used against him at  the trial.  Even after  ascertaining that he was not compelled to give it, he had given 10 to 15 minutes’ time to reconsider. As A-2 had shown his willingness again and as he was satisfied about the same he had decided to record it.      He had got it written on a typewriter. It was then read over to A-2 and his signatures were taken on each page as he had accepted  that it  was correctly taken down. He had also signed the  statement and  the certificate.  The suggestions made to  him in  his  cross-examination  that  A-2  had  not willingly given  that statement and that his signatures were obtained on  it by  force  were  denied.  Nothing  could  be elicited in  his cross-examination  which would  create  any doubt  regarding  credit  worthiness  of  this  witness  and genuineness and  voluntary character  of the confession. The confessional statement  (Exh.51)  of  A-9  was  recorded  on 3.10.91 by  P.W.51 Appadurai.  He  has  also  given  similar evidence and  dened the suggestion made to him in his cross- examination that  he had written down a false confession and obtained signatures  of A-9  on it  under a  threat. No good reason has  been  given  by  the  learned  counsel  for  the respondents to disbelieve the evidence of this witness also. The evidence  of these two witnesses, therefore, establishes that the  confessions (Exh. 51 and 53) were given by A-2 and A-9 voluntarily and were taken down correctly.      The learned Sessions Judge was of the view that Section 15 of  the TADA  Act requires  that  the  Superintendent  of Police should  record  the  confession  either  in  his  own handwriting or  on any  mechanical  device  like  cassettes, tapes or sound tracks from out of which sounds or images can be reproduced  and the Section does not permit him to get it written by someone else on a typewriter even if that is done in his presence. The learned Judge was also of the view that

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Rule 15  requires that  in case  of a written confession the Superintendent of  Police  should  in  his  own  handwriting certify the  same.  He  therefore  held  that  as  both  the confessions were  wholly typewritten  they cannot be said to have been  recorded in  accordance with  the requirements of the said  provisions. The  learned Sessions  Judge also held that both  the police officers had not exercised their power or discharged  their function under Section 15 in the manner contemplated by that provision as indicated by the fact that in the heading of each of those statements it is stated that It is a confessional statement of the accused". According to the learned  Judge that  would mean  that  Both  the  police officers had  started recording  the same  before satisfying themselves as  to whether the accused were willing to give a voluntary confession.  We have  already set out the evidence of the two police officers earlier and it clearly transpires therefrom that  they had  started recording  the confessions not only  after satisfying  themselves that  they wanted  to confess voluntarily  but after giving them 10 to 15 minutes’ time  for   reconsidering  their   decision.  Therefore  the inference drawn  by the learned Sessions Judge that the said two police  officers had  started recording  the confessions without  properly   satisfying  themselves   regarding   the willingness of  the accused  to make  confessions is  wholly unjustified. We  find that  both  the  officers  had  before recording the  confessions complied  with the requirement of sub-section (2) of Section 15.      We will now consider whether Section 15 of the TADA Act and Rule  15 of  the TADA Rule require that the confessional statement should be recorded by the Superintendent of Police in his  own  handwriting  if  it  is  not  recorded  on  any mechanical device.  Section 15 and Rule 15 in so far as they are relevant for the purpose of this appeal read as under:      "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.      (2) .... .... .... ....      Rule 15 reads as under:-      "Recording of  confession  made  to      police officers. -      (1) .... .... .... ....      (2) .... .... .... ....      (3) The  confession shall, if it is      in writing, be-      (a) signed  by the person who makes      the confession; and      (b) by the police officer who shall      also certify  under  his  own  hand

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    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 :-      (4) .... .... .... ....      (5) .... .... .... .... "      A confession  made by an accused to a police officer is made inadmissible  in a  criminal trial  both by  the Indian Evidence Act  and the  Code of Criminal Procedure. But while enacting   the    Terrorist   and    Disruptive   Activities (Prevention) Act  which makes  special  provisions  for  the Prevention of, and for coping with, terrorist and disruptive activities  and  for  the  matters  connected  therewith  or incidental thereto  the Legislature  has thought  it fit  to make certain  confessions made to police officers admissible in  a  trial  of  such  person  or  co-accused,  abettor  or conspirator for  an offence  under that  Act or  Rules  made thereunder. The  Legislature has, however, at the same time, provided enough  safeguards to  protect the  interest of the accused. A  confession is made admissible only if it is made before  a   police  officer   not  lower   in  rank  than  a Superintendent of  Police. It  is made  admissible if  it is 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. Such a confession can  be used  against a  co-accused,  abettor  or conspirator only  in those  cases where  he is  charged  and tried in the same case together with the accused making that confession. Before recording a confession the police officer must explain to the person making it that he is not found to make a confession and that, if he does so, it may be used as evidence against  him. A  provision is  also made  that  the police officer  shall not  record any such confession unless upon questioning  the person  making it,  he has  reason  to believe that  it is  being made voluntarily. The confessions (Exhs. 51  and 53)  were recorded  in  writing.  As  regards compliance with  the requirements  of Section  15  the  only point in  dispute is  whether the confessions were "recorded by such  police officer .... in writing". The answer depends upon the  correct interpretation  of the  words ’recorded in writing’. As  stated earlier, the learned Sessions Judge has interpreted  the   word  ’writing’   to  mean   in  his  own handwriting.      According  to   Webster  Comprehensive  Dictionary  ’to record’ means  to write down or inscribe or register, as for preserving  an   authentic  account,   evidence   etc.   and ’writing’, as  a verb,  means to  trace or  inscribe or note down letters,  words, numbers  etc. on a surface with a pen, pencil or  by some other device including stamping, printing or engraving. Thus, the expression ’record in writing’ has a wider meaning.  It would  include writing  down by one’s own hand and  also writing by other means. Unless the context so requires it  would not  be proper  to give that expression a narrow  meaning.  In  Section  15  the  words  ’recorded  in writing’ are  used to  indicate a  mode or form of recording the confession.  Though the  nature of  the provision  would justify  strict  compliance  with  each  of  the  conditions mentioned therein  we find no compelling reason to give such a narrow  interpretation to  those words as has been done by the learned  Sessions Judge. Though Superintendent of Police must himself  explain to  the person  making the  confession

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that he is not bound to make a confession and that it may be used as  evidence against  him if  he makes it and though he has himself  to question  the person  making it  to  form  a reasonable belief that he is making it voluntarily we do not think that  it was  intended by  the  Legislature  that  the Superintendent of  Police  should  himself  write  down  the confession without  taking any  help of another person or an instrument like  a typewriter.  What appears  to  have  been intended by  the Legislature  is that  the Superintendent of Police should not leave the work of recording the confession to any of his subordinates and that everything in connection with the  confession should  be done  in  his  presence  and hearing and  under his  direct supervision  and control. We, therefore, do  not find  any justification  for interpreting the words  ’recorded by  such police  officer in writing’ to mean recorded by such police officer in his own handwriting. There is  no reason  why a Superintendent of Police who, for some reason,  is unable to write down the confession, cannot take help of another person for writing the same. Why cannot a Superintendent  of Police,  whose handwriting is not good, record the  confession by using a typewriter? Typewriting is also writing. A typewritten thing is also a writing prepared with the  help of a typewriter. In the context of Section 45 of the  Evidence Act  this Court in State vs. S.J. Choudhary (1996) 2  SCC 428,  after observing  that a  typewriter is a writing machine  and typing  has become more common than the handwriting, has  held that  typewriting can legitimately be said  to  be  including  within  the  meaning  of  the  word ’handwriting’. We, therefore, hold that the learned Sessions Judge committed  an error of law in treating the confessions (Exhs. 51  and 53)  as inadmissible  on the ground that they were were not recorded in accordance with the requirement of Section 15 of the Act.      Another ground on which the learned Sessions Judge held the two  confessions  inadmissible  is  that  the  concerned police officer did not certify the confession ’under his own hand’ inasmuch  as  the  certificate  was  typewritten,  the memorandum at the end of the confession was also typewritten and the  police officer  had merely put his signatures below them and thus, there was non-compliance with the requirement of Rule  15. The  said Rule inter alia prescribes the manner in which  the confession  made under  Section 15  has to  be recorded. Sub-rule  (3) of  the said Rule which is quoted in the earlier  part of  this judgment  provides  that  if  the confession is  in writing  it has to be signed by the person who makes  it and also by the police officer who records the same. It further provides that the police officer 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.  The police officer  is also required to make a memorandum at the end of the confession to the following effect:      "I have explained to (name) that he      is not  found 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.

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    sd/- Police Officer".      The  learned   Sessions  Judge   has  interpreted   the expression ’under  his own  hand’ to mean written in his own hand. As  the   confessions  were  not  handwritten  by  the Superintendents themselves  the learned  Sessions Judge held that they  were not  certified as required by Rule 15(3)(b). In our  opinion, the expression ’under his own hand’ as used in sub-rule  (3)(b) of  Rule 15  does not  mean in  his  own handwriting. What  is inter alia required to be certified by the Police  officer is  that the confession was taken in his presence and  recorded by  him.  The  words  ’taken  in  his presence and  recorded by  him’ are  significant. Similarly, the words  of the  memorandum that  the confession was taken ’in my  presence and  hearing and  recorded by  me’ are also significant  and   indicative  of  the  expected  manner  of recording the  confession. They  clearly  suggest  that  the confession should  be recorded  by the police officer in his presence and  hearing. The  emphasis is  on the presence and hearing of  the police officer and not on the police officer himself writing down the confession, the certificate and the memorandum. Thus,  what is  required by sub-rule (3) is that the written  confession should  not only be countersigned by him but  it should  also contain  the  required  certificate signed by  him. The intention of the Rule clearly appears to be that  all the  formalities should be performed by him and he should  himself certify  that he  had discharged  at  the obligations before  recording the  confession.  The  learned Sessions Judge was, therefore, wrong in holding that the two confessions were  inadmissible in  evidence as  they did not comply with the requirement of Rule 15(3)(b).      Therefore, we  will now  consider the evidentiary value and the  effect of those two confessions. Though A-2 and A-9 have denied  while examining  under Section  313 of the Code that they  had made  such confessions  we  are  inclined  to believe P.W.51  and P.W.53  that A-2  and A-9 did make those confessions  and   that  they   were  voluntarily  made  and correctly taken  down. Having  gone through  the  confession (Exh.53) made  by A-2  we find  that what he had stated with respect to the conspirary is as under:-      "On account  of the action taken by      the present  Tamil Nadu Government,      bombs could  not be  sent to Lanka.      There was  a talk  that  bombs  are      required for  ANAIYIRAVU WAR: Bombs      have to  be sent  by the first week      of August on any account. Aruchamy,      Ramakrishnan, Loganathan,  Jayapal,      Shanmugam and Ravi promised to help      for this."      Apart from  the fact  that the  date on  which the said talk took place and the place are not mentioned, it does not contain a  clear admission by A-2 that he was present at the time of  the talk  and that he was also a party to it. Thus, there is no confession by A-2 that in the first week of July 1991 in  the aforesaid  house in  the Shivaji  Colony he had agreed with  A-1, A-3  to A-5  and A-7  to A-9 or any one of them to  commit the  illegal acts alleged against them. What A-9 in  his confession  (Exh.51) has  stated is  that in the first week  of July 1991 when he had gone to the house of A- 1, A-3  and A-4 had also come and at that time A-1, Guna and two others  were also  present.  There  was  a  conversation amongst them  "that severe  war was  going on  at Colone and there are  obstructions for  sending the  bombs manufactured here. They  (Ramakrishnan, Aruchamy, Raghu, Guna and the two unknown persons) were saying: The spares of the bombs can be

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united and  explosives filled  in at Tanjore sea shore; that the bombs  which are  here should  be sent to Lanka within a month; if  anybody obstructs  we should not hesitate to kill them; if  they could  not be  sent before  the first week of August, damage  should be  caused to the important cities of India and  Tamil Nadu  in  Government  offices  and  Railway Stations with the aid of the bombs manufactured here. He has further stated  that he  overheard this conversation from an adjacent room,  that he  left the  house after some time and that he  completely stopped going to their house thereafter. Thus,  A-9   has  not  inculpated  himself  as  one  of  the conspirators.  Obviously,   on  the   basis  of   these  two confessional statements  neither A-2  nor A-9 nor any of the co-accused can be convicted for the offence of conspiracy to commit a terrorist act or any act preparatory to a terrorist act. So  also, none  of them can be convicted for conspiring to manufacture  explosives like  grenades and  bombs as  the prosecution has  failed to  establish any  meeting  and  any agreement between  them for  that purpose  at the  time  and place mentioned in the charge.      Once the  conspiracy as  alleged is  held not proved on the basis of the evidence of those witnesses who had deposed that they had seen the accused meeting each other and moving together or  doing certain acts together and on the basis of the two  confessions, the circumstance that certain articles were found  from them,  even if believed, cannot be regarded as sufficient  to prove  that charge. Therefore, the learned Sessions Judge  was right  in holding  that the charge under Section 120-B IPC read with Section 3(3) of the TADA Act has not been proved by the prosecution.      In view of the aforesaid discussion of the evidence and the finding  the acquittal of the accused under Section 3(3) of the  TADA Act  and Section  4 of the Explosive Substances Act also  will have  to be  confirmed. No other evidence was led by the prosecution to prove that the accused intended to commit a terrorist act in India or to endanger life or cause serious injury  to property  in India.  On the contrary, the evidence discloses  that the  accused who  were involved  in manufacturing bombs and grenades were doing so for their use by LTTE  in Colone.  Section 3(3) of the TADA Act makes that person punishable  who 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 terrorist  act. As  no  terrorist  act  as contemplated by  Section 3(1)  of  the  TADA  Act  was  ever intended by  any of  the accused, obviously, the ingredients of Section  3(3) cannot  be said  to have  been satisfied in this case.  Section 4  of the  Explosive Substances  Act can have  no  application  as  the  prosecution  has  failed  to establish that  any of  the accused  had  the  intention  to endanger life or cause serious injury to property in India.      What is  next to  be considered  is whether  any of the accused can  be held  guilty under Section 5 of the TADA Act and Section  5 of  the Explisive  Substances Act  which is a lesser offence  as compared  to that under Section 4 of that Act. Possession  of  bombs,  dynamites  or  other  explosive substances  unauthorisedly   in  a  notified  area  is  made punishable under  Section 5 of the TADA Act. Under Section 5 of the  Explosive Substances  Act also  making or possessing any explosive  substance, under  certain  circumstances,  is made punishable.  The learned  Sessions Judge has recorded a clear finding  that the  prosecution has failed to establish that any incriminating article was found from the possession of A-3 and A-4. We have carefully considered the evidence in this  behalf   and  in  our  opinion,  the  prosecution  has

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completely failed  to  establish  that  House  bearing  Door No.359 from which a large quantity of incriminating articles were found  was in  possession of  A-3. The  shop from which plastic grenades  without gun  powder and  Gellatine  sticks were found  and with  which A-4  was sought  to be connected have not  been proved  to be in exclusive possession of A-4. The evidence  discloses that  one Damodarsamy was the tenant of the  said shop  and that  Sathimurthi, Chandrakanth  aand other Tamilians  were working in it and A-4 was occasionally going there to meet Damodarsamy.      As regards  possession of  incriminating articles  from other accused,  except A-2  against whom  there was  no such charge, the  learned Sessions  Judge has not disbelieved the evidence led to prove that those incriminating articles were either discovered  at their  instance or were recovered from their houses  or premises  under their control. He, however, did not  record any  clear finding  in this  behalf but held that even  if their possession is held proved they cannot be said to have committed any offence under Sections 3(3) and 5 of the  TADA Act  or Section  4 of  the Explosive Substances Act. With  respect to  A-1 the  learned Judge held that even though some of the incriminating articles were discovered on the basis  of the  information given  by him  it cannot said that he  was in  possession of  the same.  We have carefully gone  through   the  evidence   of  P.W.8   Papathy,  P.W.39 Balasubramaniam, P.W.55  Inspector  Angamuthu  and  Mahazars (Exhs. P-21,  P-24) and find no good reason to discard their evidence. Even  A-1 in  his statement  under Section 313 has admitted that  the incriminating  articles  found  from  the house  situated   at  Dr.  Muthuswamy  Colony  were  in  his possession. A-2  has also  admitted in  his statement  under Section 313  that those  articles were in possession of A-1, himself and  deceased Guna.  It is,  therefore, difficult to appreciate how  the  learned  trial  judge  could  record  a finding that  those articles  cannot be said to have been in possession of  A-1. The  evidence of  P.W.39 Balasubramaniam and P.W.42  Abdul Azim  in whose  presence the incriminating articles were discovered or recovered from A-5, A-6, A-7 and A-8 together with the evidence of P.W.55 Inspector Angamuthu and the  relevant Mahazars (Exhs. P-23, P-30, P-33 and P-35) clearly establish  that the  articles noted  in the Mahazars were recovered  at their  instance. On the basis of the said evidence it can be said that the prosecution has proved that A-5, A-6,  A-7 and  A-8 were  found in  possession of  those articles. So  also, the evidence of P.W.39 Balaasubramaniam, P.W.56 Inspector  Nizamuddin and  the  Mahazar  (Exh.  P-26) clearly establish  that  certain  moulding  machines,  dyes, Gellatine  sticks   and  detonators   were  found  from  the possession of  A-9. It  was also  admitted  by  A-9  in  his statement under  Section 313 of the Code that those articles were found  from his  custody though  his  explanation  with respect to the possession of Gellatine sticks and detonators was that  they were  given to  him for  safe custody under a threat by  deceased Guna. In his confession (Exh. P-51) also he admitted that the said articles were siezed by the police officers in presence of a witness from his workshop and that he had  produced the  same.  Thus,  the  possession  of  the articles which  are held by the learned Sessions Judge to be explosive substances  as defined by the Explosive Substances Act, by A-1 and A-5 to A-9 is established by the prosecution beyond any reasonable doubt.      On this  finding, the  question that  arises is whether the charge  against them under Section 5 of the TADA Act can be said to have been proved. The learned Sessions Judge held that as the said articles were not possessed by any of those

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accused for  commission of  a terrorist  act they  cannot be said to  have  committed  that  offence.  According  to  the learned  Sessions  Judge  mere  unauthorised  possession  of explosive substances in a notified area is not sufficient to convict the  accused under  Section 5 of the TADA Act and it must further  be proved  by the prosecution that the accused possessed the  same for  commission of a terrorist act. This view taken  by the  learned Sessions Judge is clearly wrong. It is now held by this Court in Sanjay Dutt vs. State (1894) 5 SCC  410 that in the prosecution for an offence punishable under Section 5 of the TADA Act, the prosecution is required to prove  that the  accused is  in  conscious  ’possession’, ’unauthorisedly’,  in  a  notified  area  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 or bombs, dynamite or other explosive substances and no further nexus with  any terrorist or disruptive activity is required to be  proved by  the prosecution as a statutory presumption would arise  that the  said arm  or explosive  substance was meant to  be used  for a terrorist or disruptive act. Though the learned  Judge acquitted  the accused  for  the  offence under Section  5 of  the TADA  Act, on  an erroneous view of law, their  acquittal of the offence under that Section will have to  be confirmed as none of them except A-9 can be said to be  in possession of explosive substances as contemplated by that  Section. The  articles which  were found  from  the other accused  were either empty cells or the parts required for making  a hand grenade or bomb. None of them was capable of exploding.  TADA Act  contains stringent  provisions  and provides heavier punishments. Therefore, its provisions have to be  construed strictly.  TADA Act  does  not  define  the expression ’explosive  substances’. The  Legislature has not thought it  fit to  give that expression the same meaning as is given under the Explosive Substances Act. Otherwise, just as it  has in  case of  arms and  ammunition referred to the Arms Rules,  1962 it  would have  referred to  the Explosive Substances Act  if it  really  wanted  the  said  expression ’explosive substances’  to have  the same  meaning as it has under the  Explosive Substances  Act. The  expression ’other explosive substances’  is found  to be  in  the  company  of ’bombs  and   dynamites’  and,   therefore,  the   explosive substance contemplated  under Section  5 must be of the type of bombs  and dynamites.  It must  be a  complete article or device capable  of exploding. Therefore, neither empty cells nor parts  for making  a  bomb  so  long  as  they  are  not assembled and  filled with  gun powder  or  other  explosive substance can  be said  to  be  an  explosive  substance  as contemplated by  that Section.  Gellatine sticks  which were found from  the possession  of A-9  would  be  an  explosive substance but the acquittal of A-9 will have to be confirmed because the  evidence shows  that no terrorist or disruptive activity was  ever intended  by him  to be  committed within India as the evidence discloses that they were to be sent to Cylone and  used there  A-9 can be said to have rebutted the presumption arising  out of  his unathorised  possession  of explosive substance in a notified area.      It appears  that as  no separate  charge was framed for the offence  under Section 5 of the Explosive Substances Act and as  the learned  Sessions Judge was of the view that the sanction given  by the District Collector under Section 7 to prosecute the  accused for  the offences  under that Act was not legal  and valid  he did not examine whether the accused can be  said to  have committed  the  lesser  offence  under Section 5 of that Act. On re-appreciation of the evidence we have come  to the  conclusion that  A-1 and  A-5 to A-9 were

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found in  possession of articles which have been held by the learned Sessions Judge to be explosive substances as defined by the  Explosive Substances  Act Even  though there  was no specific charge  under Section 5, it being a lesser offence, the  accused  can  be  convicted  and  punished  under  that Section, if  the ingredients  constituting that  offence are held established.  Section 5 renders any person who makes or knowingly has  in his  possession or  under his  control any explosive substance,  under such  circumstances has  to give rise to  a reasonable  suspicion that he is not making it or does not  have it in his possession or under his control for a lawful  object, punishable unless he can show that he made it or  had it  in his  possession or under his control for a lawful object. Possession of such articles by A-l and A-5 to A-9 is  held proved  by us. The nature of those articles and the evidence  of the  witnesses who  have been  examined  to prove that  those articles  were prepared  for manufacturing bombs and  also the  evidence of  scientific  expert  P.W.48 Srinivasan clearly  establish that  they were  the parts  of bombs and  grenades. The  clandestine manner  in which  they were making, storing and transporting them is a circumstance sufficient to  create a  reasonable suspicion that they were not possessed  for a  lawful object.  In fact, none of those accused has  made any  attempt to  prove that they had those articles with  them for  a lawful object. Therefore, all the ingredients of  the offence under Section 5 are satisfied in this case  and A-1  and A-5  to  A-9  are  held  guilty  for commission of that offence.      With respect  to the  finding regarding sanction we are of the opinion that the learned Sessions Judge was not right in treating  it as  not legal  and valid. Section 7 does not require a sanction but only consent for prosecuting a person for an  offence under  the  Explosive  Substances  Act.  The object of  using the word "consent" instead of "sanction" in Section 7 is to have a purely subjective appreciation of the matter before  giving the  necessary consent.  To prove  the consent the prosecution had examined P.W.52 Balachandran who was then  acting as  the P.A.  of the District Collector. He has deposed  about the requisition sent by the investigating officer and  the reports and other documents sent along with it and  consideration of  the same by the District Collector before giving  his  consent.  In  his  cross-examination  he stated  that  he  had  not  noticed  in  the  relevant  file statements of  witnesses. Relying  upon this answer given by the witness  the learned Sessions Judge held that in absence of such  statement the  District Collector cannot be said to have applied  his mind  properly to  the facts  of the  case before granting  the sanction.  From  the  evidence  of  the witness one  the copy of the proceedings of the Collector it appears that  the Inspector  of Police  had sent  his report regarding the evidence collected by him together with a copy of the FIR, the reports of the Forensic Department and other connected  record.   Thus,  the  Mahazars  under  which  the "explosive substances"  recovered and  seized by  the police from different  accused were placed before the Collector and on consideration  of all  that material  the  collector  had given his  consent. We  do  not  think  that  for  obtaining consent of the Collector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary  for  the  investigating  officer  to  submit  the statements of  witnesses also,  who had  deposed  about  the movements of the accused and their activity of manufacturing bombs and  grenades We,  therefore, hold  that  the  consent given by the Collector was quite legal and valid.      A-1 and  A-2 were also tried for the offence punishable

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under Section  307 read  with Section  34 IPC.  In order  to establish this  charge the  prosecution had  examined  F.W.1 Pandurangan who  had deposed  about the  manner in which A-1 was  found  driving  his  Kinetic  scooter  in  a  rash  and negligent manner, his signalling him to stop the vehicle and A-1 trying to dash the scooter with him. The prosecution had also led  evidence of  P.W.2 Devasayayam,  P.W.4  Arumugham. P.W.6 V.  Arumugham and  P.W.7 Singaram  to corroborate  the evidence of  P.W.1 Pandurangan.  The learned  Sessions Judge disbelieved the  evidence of  these witnesses  on the ground that  the   version  given   by  them   was  artificial  and unbelievable for  the reasons  that (1)  the accused had not sustained any  injury (2)  no  damage  was  noticed  on  the scooter (3)  the FIR  did not  refer to  the oresence of the three independent  witnesses and  (4)  though  Singaram  and Radhakrishnan were  cited as  eye-witnesses the  prosecution examined only  Singaram. P.W.2  Devasayayam had helped P.W.1 Pandurangan in  taking  A-1  and  A-2  in  custody  and  had accompanied P.W.1  to the  police station. His statement was also recorded  soon after  the FIR  was prepared. In the FIR the name  of Singaram  was mentioned  as an eye-witness. The learned Sessions  Judge  has  disbelieved  the  evidence  of Singaram also on the ground that he did not depose about the presence of  the other  three witnesses.  We find  that  the learned Sessions Judge has not properly read the evidence of P.W.7. He  has referred  to the  presence of  P.W.6. In  his evidence he  has stated  that he  was in  the shop  of P.W.6 along with  Radhakrishnan. No other reason has been given by the learned  Sessions Judge for disbelieving the evidence of those witnesses. It is quite likely that A-1 having lost the balance after  making an attempt to dash the scooter against P.W.1 Pandurangan  could not keep the scooter standing while stopping it.  That appears  to be the reason why the scooter and A-1  and A-2  fell down  on the  road. The  scooter  had stopped running  and that  is borne  out by  the evidence to those witnesses  and that  explains why  neither A-1 nor A-2 had received any injury nor was there any scratch noticed on the scooter.  Thus, none of the grounds given by the learned Sessions Judge  for holding  the version of the witnesses as artificial and  unbelievable  can  be  regarded  as  a  good ground. The said finding is partly based upon the misreading of the  evidence and  partly upon  the reasons which are not proper. We, therefore, hold that the charge against A-1 that he had  tried to  dash the scooter against P.W.1 Pandurangan is established  beyond reasonable doubt. However, in absence of any evidence or circumstances it is not possible to infer that the  intention of  A-1 was  to attempt  to murder P.W.1 Pandurangan. Therefore,  we  maintain  his  acquittal  under Section 307  but set  aside his  acquittal under Section 353 and convict him for that offence.      A-2 had  neither done nor uttered anything on the basis of which  it can be said that he had shared the intention of committing the  offence punishable under Section 307 with A- 1. His  acquittal, therefore,  under Section  307 read  with Section 34 has to be maintained.      The evidence of P.W.1 Pandurangan and P.W.2 Devasayayam clearly establishes  that when  they tried  to take A-1 into custody he  had attempted  to commit  suicide by  bitting  a cyanide capsule.  A-1 in  his admitted  that he had tried to bite a  cyanide capsule  when he  was caught  by the polices though his  version regarding the other part of the incident is different.  The evidence of P.W.1 and P.W.2 thus receives corroboration  from   the     said  statement  of  A-1.  The prosecution, therefore,  can be  said  to  have  established beyond any  reaschable doubt that A-1 ha attempted to commit

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suicide. The  learned Sessions Judge has acquitted A-1 as he considered the  said charge  as void in view of the decision of this Court in P. Rathinam vs. Union of India (1994) 3 SCC 394   wherein    it   was   held   that   Section   309   is unconstitutional. The  Constitution Bench of this Court in a subsequent decision  in Guna  Kaur vs.  State of  Punjab and other connected  matters (1996)  2 SCC 648 has overruled the view taken  in the  case of P. Rathinam (supra) that Section 309 IPC is constitutionally invalid. Therefore, on the facts which are  not only  proved but are also admitted by A-1 the acquittal of  A-1 under  Section 309 IPC has to be set aside and he will have to be convicted under that Section.      Accordingly this appeal is partly allowed. Acquittal of all the  accused for  the offence  punishable under  Section 120-B IPC read with Section 3(3), TADA Act, for the offences punishable under Sections 3(3) and Section 5 of TADA Act and Section 4  of the  Explosive Substances  Act and that of A-1 and A-2  under Section  307 read  with  Section  34  IPC  is confirmed. The  acquittal of  A-1 for the offence punishable under Section  353 IPC  is set aside and he is convicted for commission of  that  offence  and  is  sentenced  to  suffer rigorous imprisonment  for a  term of  one year.  He is also convicted under  Section 309  IPC and is sentenced to suffer simple imprisonment  for a  term of  six months.  He is also convicted for  the offence punishable under Section 5 of the Explosive Substances Act and is sentenced to suffer rigorous imprisonment for  two years.  A-5 to  A-9 are also convicted for the  offence punishable under Section 5 of the Explosive Substances Act  and they  are  ordered  to  suffer  rigorous imprisonment for  a period  of one  year. All  the sentences imposed upon A-1 are directed to run concurrently.