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CASE NO.: Appeal (crl.)  733 of 2003

PETITIONER: Sukhwant Singh @ Balwinder Singh                    

RESPONDENT: State through C.B.I                                             

DATE OF JUDGMENT: 23/09/2003

BENCH: N Santosh Hegde & B P Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       This appeal under Section 19 of the Terrorist &  Disruptive Activities (Prevention) Act, 1987 (for short ’the  TADA Act’) is filed against the judgment of the Judge,  Designated Court for Rajasthan, Ajmer in TADA Special Case  No.8 of 1992. The appellant herein was accused No.4 in the  said case and has been held guilty of an offence punishable  under Section 120 IPC, Sections 3 and 6(1) of the TADA Act,  Section 5 of the Explosive Substances Act, 1908 read with  Section 120-B IPC and had been sentenced to a maximum  sentence of 5 years’ RI under the main count and has also been  imposed sentence and fine under various other charges with a  direction that all the sentences of imprisonment should run  concurrently.

       In view of the fact that we are of the opinion that almost  all the contentions raised in the above appeal and argued before  us are covered against the appellant by our judgment in Jameel  Ahmed & Anr. v. State of Rajasthan [2003 (4) Scale 402], we  do not think it is necessary to elaborately deal with the facts of  the case. Suffice it to say that before the TADA court, the  appellant herein who is arrayed as accused No.4 along with 8  other accused persons was charged for various offences like  Section 3(3) of the TADA Act, Section 120-B read with  sections 5 and 6 of the Explosive Substances Act, Section 9B  and 9C of the said Explosive Act. Of the said 9 accused, 3 had  pleaded guilty before the TADA court and their case was  separately dealt with ending in their conviction based on their  plea of guilt, while 6 others were tried and found guilty of  various offences mentioned hereinabove; out of which 4  accused, namely, Gyani Pratap Singh A-1, Didar Singh A-2,  Jameel Ahmed A-5, Ismail Bhai A-6 challenged their  conviction in Criminal Appeal Nos.1308/2002, 215/2003 and  1361/2002, while the present appellant herein and another  convicted accused Kulwant Singh A-3 had then not challenged  their conviction by the TADA court. In this appeal, Sukhwant  Singh @ Balwinder Singh @ Ballu, who was A-4 before the  TADA court has challenged the very same judgment. In our  earlier judgment reported in 2003 (4) Scale 402, we held thus :

(i)     if the confessional statement is properly recorded,  satisfying the mandatory provision of section 15 of  the TADA Act and the Rules made thereunder, and

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if the same is found by the court as having been  made voluntarily and truthful then the said  confession is  sufficient to base a conviction on the  maker of the confession. (ii)    Whether such confession requires corroboration or  not, is a matter for the court considering such  confession on facts of each case. (iii)   In regard to the use of such confession as against a  co-accused, it has to be held that as a matter of  caution, a general corroboration should be sought  for but in cases where the court is satisfied that the  probative value of such confession is such that it  does not require corroboration then it may base a  conviction on the basis of such confession of the  co-accused without corroboration. But this is an  exception to the general rule of requiring  corroboration when such confession is to be used  against a co-accused. (iv)    The nature of corroboration required both in regard  to the use of confession against the maker as also  in regard to the use of the same against a co- accused is of general nature, unless the court  comes to the conclusion that such corroboration  should be on material facts also because of the  facts of a particular case. The degree of  corroboration so required is that which is  necessary for a prudent man to believe in the  existence of facts mentioned in the confessional  statement. (v)     The requirement of sub-rule 5 of Rule 15 of the  TADA Rules which contemplates a confessional  statement being sent  to the Chief Metropolitan  Magistrate or the Chief Judicial Magistrate who, in  turn, will have to send the same to the Designated  Court is not mandatory and is only directory.  However, the court considering the case of direct  transmission of the confessional statement to the  Designated Court should  satisfy itself on facts of  each case whether such direct transmission of the  confessional statement in the facts of the case  creates any doubt as to the genuineness of the said  confessional statement.  In the present case we are aware of the fact that the  appellant has not made any confessional statement nor there is  any corroboration of the confessional statement of the co- accused implicating this appellant from any other independent  source but then we have held in the above reported case that if  confessional statement of a co- accused is acceptable to the  court even without corroboration then a confession of a co- accused can be the basis of conviction of another accused so  implicated in that confession.  Therefore the fact that the  appellant herein has not confessed or the confessional  statements made implicating him by A-1 and A-2 are not  independently corroborated, will not be a ground to reject the  evidence produced by the prosecution in the form of  confessional statement of co-accused provided the confession  relied against the appellant is acceptable to the court.

       Applying the said principles to the facts of the present  case, we notice the confessional statement of Didar Singh A-2  whose conviction was upheld by us relying on the said  confession, shows he met the appellant herein sometime around  June-July, 1990 in the house of Gyani Pratap Singh and at the  behest of said Gyani Pratap Singh and appellant, said A-2  agreed to procure certain explosives to be sent to Punjab and

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said Gyani Pratap Singh gave a sum of Rs.8,000/- to the  appellant which the appellant, in turn, gave to Didar Singh A-2,  and pursuant to the said promise to procure the explosives, A-2  with the appellant went to Basmat where he met a person who  was the younger brother of Sushil Kumar to whom A-2 gave  the money to get the explosives. At that time, the appellant had  told A-2 that he was a Kharku of Punjab and the explosives  were needed by him. Having heard this, said brother of Sushil  Kumar wanted an extra sum of Rs.2,000 for the explosives to  be delivered. As per the statement of A-2, after the said  payment was made, they received 10 cartons of explosives from  the brother of said Sushil and his servant which they loaded into  their vehicle and came back to the Gurudwara. In the said  statement, A-2 says the appellant herein had again gone with  him sometime on 5th or 6th December, to obtain more  explosives. At that time, the appellant had told A-2 that an  empty truck was coming from Nanded and they should keep the  explosives ready. Thus, from the above statement of A-2 it is  clear that the appellant was closely interacting with A-2 in the  purchase of explosives for the purpose of sending the same to  Punjab. The further statement of A-2 also shows that the  appellant was  involved in arranging for the vehicle to take the  explosives so procured by A-2 and also in loading the said  explosives in the truck. This confessional statement of A-2  which we have found to be fit for acceptance, is supported by  the confessional statement of Gyani Pratap Singh A-1 who also  corroborates the statement made by A-2. Hence we are of the  opinion that the prosecution has established the involvement of  the appellant in purchase of explosives and the transportation of  the same to Punjab.

       In the above factual background, we find no merit in this  appeal and the same is hereby dismissed.