Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 21
CASE NO.:
Appeal (crl.) 1308 2002
of 4\006
PETITIONER:
Jameel Ahmed & Anr.
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 30/04/2003
BENCH:
N. Santosh Hegde & B.P. Singh.
JUDGMENT:
J U D G M E N T
(With Crl.A. Nos.215/2003 & 1361/2002)
SANTOSH HEGDE,J.
All these appeals arise out of a common judgment of the
Designated Judge at Ajmer, Rajasthan, made in TADA Special
Case No.8 of 1992. In the said case, the appellants herein along
with some other accused were charged by the Deputy
Superintendent of Police, CBI/SIC.II, New Delhi for offences
under Sections 3(3) and 6 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as ’the
TADA Act’), Section 120-B IPC; and Sections 5 and 6 of the
Expolsive Substances Act and Section 9B and 9C of the
Explosives Act. After trial the Designated Court held the
appellants guilty of offences punishable under Section 120B
IPC, Sections 3(3) and 6(1) of the TADA, Section 5 of the
Explosive Substances Act read with Section 120B of the IPC
and Section 6 of the Explosive Substances Act. Learned Judge
also held A-5 guilty of offences punishable under Sections 9-B
(i)(b) and 9-C of the Explosives Act. Based on the said
conviction, he imposed a sentence of 5 years’ RI with a fine of
Rs.1,000 on each count, on these appellants, and in default in
the payment of fine, to undergo a further RI for 6 months on
each count, on each of them. He also sentenced the appellants
for offences punishable under Section 3(3) and 6(1) of the
TADA and imposed a sentence of 5 years’ RI with a fine of
Rs.1,000 on each of them, in default to undergo RI for 6
months. He further sentenced the appellants for an offence
punishable under section 5 of the Explosive Substances Act
read with section 120B IPC, and Section 6 of the Explosive
Substances Act and imposed a sentence of 5 years’ RI with a
fine of Rs.500/- on each count on each of them; in default to
undergo RI for 3 months. Nextly, he held A-5 guilty of offences
punishable under Sections 9-B(i)(b) and 9-C of the Explosives
Act, 1884 and sentenced him to undergo RI for 2 years with a
fine of Rs.500/-; in default to undergo further RI for 3 months.
He directed all the substantive sentences to run concurrently.
Prosecution case involving these appellants, stated
briefly, is as follows :
On 20.12.1990, a Police party headed by Sukhpal Singh,
PW-9, Inspector, Narcotics Control Bureau, Bhilwara
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 21
(Rajasthan) intercepted Truck No.PAT 1933 at Octroi Post
No.2, Bhilwara at about 10.30 a.m. The truck was loaded with
bananas and there were 3 occupants in the truck. They were
Beant Singh, A-7; Jagjeet Singh, A-8; and Sulakshan Singh, A-
9. On a search of the truck, PW-9 and his party found 1.25 kg.
of opium and one briefcase containing 8 bundles of detonators.
Said PW-9 sent a written report to SHO, PS Sadar, Bhilwara,
who along with his staff reached the spot and conducted further
search of the said truck. Said SHO, Satya Narayan, PW-12
found one "ENCOR" briefcase which had 8 bundles of electric
detonators, and hidden with the load of bananas, he also found
13 cartons of gelatine and 2 bags of calcium ammonia nitrate.
On each carton "Noble Explochem Ltd. 595/2, Giriprt Nagpur,
Noble Brand Class-III, Division-I, CAT.ZZ" was written in
English. On opening the cartons, the officers found 200
gelatines in each of the carton. On questioning the three
occupants of the said truck, namely, A-7 to A-9, told the
investigating officers that they had no licence to possess these
explosives. Thus on the ground that these accused persons had
committed an offence under Section 9-B of the Explosives Act,
Sections 4 and 5 of the Explosive Substances Act and Section
286 of the IPC, they were arrested. The Investigating Officer,
PW-12, took out the samples of gelatine from each carton and
electric detonators from each bundle, as also 1 kg. of Calcium
Ammonia Nitrate from each of the bags which were seized, for
the purpose of chemical examination. A case under section 8/18
of the N.D.P.S. Act was also registered against the said 3
accused persons for possessing 1.25 kg. of opium. The
Investigating Officer also seized the truck and registered an FIR
against these accused persons. It is seen from the records that
during the course of investigation, Section 6 of the TADA was
also invoked as against these accused.
The Ministry of Personnel, Govt. of India, under a
notification dated 1.2.1991 and after obtaining the consent of
the State of Rajasthan handed over the investigation to the CBI
which continued the further investigation. Based on the
information received by the CBI and on further investigation, it
was found that in the month of June, 1990, Madha Singh, A-10
along with Sukhwant Singh A-4, Kulwant Singh A-3, Gyani
Pratap Singh A-1 and Didar Singh A-2 had entered into a
criminal conspiracy to procure explosives from Maharashtra
and to transport the same to Punjab to indulge in terrorist
activities. On further investigation, based on this information, it
was found that Beant Singh A-7, Jagjit Singh A-8 and
Sulakshan Singh A-9, the persons who were found in the truck
seized earlier, along with Ismail Bhai A-6, Jameel Ahmed A-5,
Dinesh Kumar A-11 and A. Srinivas A-12 had also joined in
the said conspiracy. Further case of the prosecution is that in
the months of May-June, 1990, A-1 summoned A-2 in the
presence of A-10 and asked A-2 to arrange 2 cartons of gelatine
and 100 detonators which A-2 arranged and supplied the same
to A-1, A-4 and A-10 at Dunlop Hotel, Latoor Road, Nanded.
It is also the case of the prosecution that similar
procurement of explosives was also made in the month of July,
1990 by accused A-1 to A-4 from one Dinesh Kumar of M/s.
Sushil Explosives. Since this transaction is not relevant for the
purpose of these appeals, we need not dilate on the facts of this
transaction any further.
The prosecution further states that in the month of
October, 1990, A-2 met A-1 at Nanded and asked him to
arrange for a further quantity of 2 1/2 quintals of gelatine and
400 detonators and two bags of Calcium Ammonia Nitrate. It is
pursuant to this demand, A-2 met Jameel Ahmed A-5 at
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 21
Nanded and asked him for the said quantity of gelatine,
detonators and Calcium Ammonia Nitrate. It is stated that A-5
knowing well that these explosives were meant for use by the
militants of Punjab, agreed to supply the same for an enhanced
sum of Rs.1,000 per carton of gelatine even though the
prevailing market price was just Rs.650/- as also two bags of
Ammonia Nitrate.
Prosecution further alleges that these explosives were
delivered to A-2 by father of A-5 viz. Ismail Bhai A-6 which
explosives were taken to Nanded by A-2 in the Maruti Van of
PW-1 Sanjay Gaware on 12.12.1990 and was stored in a Kholi
rented by A-2 at Usman Road, Nanded. Prosecution further
says that on receipt of these explosives, A-2 informed A-1
about the same.
On 14.12.1990 at about 10/11 a.m. A-2 was informed by
A-1 and A-4 that a truck loaded with oil-seed cakes had come
from Punjab for carrying the explosives back to Punjab. On
receipt of the said information, A-2 arranged for a Maruti
Gypsy No.BLL-4750 and went to his Kholi at Nanded and
collected the explosives and proceeded to the place where the
said truck was parked and the explosives were transferred to the
said truck by A-7 to A-9 who had brought the truck from
Punjab. The said truck was then driven to Malegaon where a
consignment of bananas was loaded in the truck to be
transported to Amritsar and the said truck left for Bhusawal
where some more bananas were loaded and on 18.12.1990 the
said truck proceeded further towards Punjab. On the way at
Mangalwara, Beant Singh A-7 purchased 1.25 kg. of opium. It
is during this journey on 22.12.1990 the said truck when it
reached Checkpost No.2 at Bhilwara was intercepted by the
staff of the Narcotics Control Bureau as stated above and the
contraband articles both opium and explosives were seized.
Prosecution contends that the explosives seized from the
said truck were examined by the C.F.R.L., New Delhi as also
by the Controller of Explosives, Jaipur, who opined that the
said explosives were standard industrial explosives. They also
opined that Calcium Ammonia Nitrate which is a fertilizer can
also be used as an explosive when mixed with diesel/fuel oil
which then becomes explosives of class-II as defined in
Schedule I of Explosives Rules, 1983. The said authorities also
opined that the explosives so seized were marked with the name
of M/s. Noble Explosives and also identified the batch number
which was traced to M/s. Asian Explosives, Akola.
During the course of investigation, it was noticed that
M/s. Asian Explosives, Akola of which A-5 was the partner, did
not maintain the record of the transaction of gelatine of the
aforesaid batches in the records of the firm. Prosecution also
states that during the course of investigation, Beant Singh A-7,
Jagjit Singh A-8 and Sulakshan Singh A-9 made voluntary
confessional statements which was recorded by Ram Vallabh
Sharma PW-43 on 4.1.1991 which were marked as Ex. P-126,
P-109 and P-128 respectively wherein these accused admitted
their guilt and their respective involvement in the offence
alleged against them.
The prosecution also alleges that Gyani Pratap Singh A-1
also made a confessional statement on 21.2.1991 which was
recorded by PW-42, D.R. Meena, Superintendent of Police, and
was marked as Ex. P-124 during the trial. According to the
prosecution in this confession A-1 voluntarily admitted his
involvement in the charges framed against him.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 21
It is the further case of the prosecution case that on
20.5.1991 Didar Singh A-2 gave a confessional statement
which was recorded by PW-42 and marked as Ex. P-126
wherein this accused not only admitted his personal
involvement in the charges levelled against him but also gave
details of the involvement of accused A-1 to A-9 in the above
case.
It is to be noted that originally even though there were
many other accused they were not sent up for trial by the
investigating agency by showing their names in column 2 of the
chargesheet because the investigating agency could not find
sufficient material of their involvement. In regard to some other
accused persons the Designated Court itself at the stage of
framing charges found there was no material to proceed against
the said accused hence discharged them.
It is also to be noted at this stage that accused A-7 to A-9
who were found transporting the explosives in the truck, not
only gave confessional statements as per Ex. P-126, P-109 and
P-128 respectively also pleaded guilty at the stage of recording
their pleas, hence, were convicted based on their plea of guilt.
And there is no challenge to their conviction. A-3 and A-4 who
were convicted under the impugned judgment have also chosen
not to challenge their conviction. Hence, these appeals are by
A-1, A-2, A-5 and A-6 only. It should be noted herein that A-10
had died during trial hence proceedings against him had abated.
The prosecution at the trial examined 49 witnesses and
exhibited 174 documents. They also produced 12 articles as
material objects in the case. The accused persons before the
trial court were examined under Section 313 Cr.P.C. and all of
them denied the prosecution case. A-1 denied his confessional
statement and stated that he was asked to sign on a blank paper
and that he did not know Hindi. A-2 stated that his confessional
statement is fabricated and he was asked to sign on a blank
paper and he did not know Hindi or English. A-3 to A-6 apart
from denying their involvement, pleaded that they are totally
innocent and have been falsely implicated.
Defence examined DW-1, Sulakshan Singh who was A-9
in the trial and had pleaded guilty as their witness and produced
5 documents in their defence. It is based on the material and
oral evidence available at the trial that the Designated Court
found the appellants guilty as stated above and sentenced them.
Though on behalf of the appellants individually separate
arguments were addressed, they also had a common attack
against the confessional statement allegedly given by the
accused as per Ex. P-109, P-124, P-126, P-128 and P-129. The
common line of attack in this regard is that these statements are
not made at all and/or were incorporated in the blank papers or
their signatures were obtained on pre-prepared statements by
coercion in language unknown to them. They also contend that
recording of the statements by the concerned officers was in
contravention of the mandatory requirements of Section 15 of
the TADA Act as also Rule 15 of the TADA Rules, therefore
the same cannot be looked into. They also contended that the
confessional statements even if held to be as admissible, they
being weak type of evidence, the same can only be used for
corroboration and not as substantive evidence.
On behalf of the first accused it is further argued that a
careful reading of alleged confessional statement does not show
any involvement of this accused in the alleged criminal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 21
activities and whatever statement found in the said Ex. P-124
only reflects his innocent act as a Granthi of a Gurudwara in
providing certain accommodation and medical assistance to the
concerned accused persons, which was done without knowing
the object of the visit of these accused to Nanded and when he
came to know of their involvement in illegal activities, he had
dissociated himself from them. He submitted that in view of the
non-inculpatory nature of Ex. P-124 same cannot be treated as a
confession. It is also contended de hors Ex. P-124, there is
absolutely no evidence to implicate this accused.
On behalf of A-2 it is contended that he did not make the
confessional statement as per Ex. P-126 and his signature was
obtained on a blank paper, and that he does not know Hindi or
English and knows only Gurmukhi and from the manner in
which his signature was obtained on Ex. P-126 it is clear that
the same was obtained on a blank paper therefore his
confessional statement not being voluntary and truthful cannot
be looked into.
On behalf of A-5 and A-6 it is submitted that apart from
their involvement found in the alleged confessional statements
which are neither genuine, voluntary nor truthful there is no
other material against them. It is further argued that A-5 is a
licensed dealer in explosives and A-2 being in the job of
blasting rocks was known to him and was purchasing
explosives from him for the purpose of his professional work
and A-5 had no knowledge that the purchases made by A-2
were for the purpose of use by terrorists and whatever sale of
explosives he made to A-2, same was for the purpose of A-2’s
professional use and in the absence of any other acceptable
corroboration of the alleged confession as to the involvement of
himself with the terrorist activities, there could be no conviction
based solely on the confession of a co-accused.
On behalf of A-6 it is contended that apart from the
unacceptable confession of the co-accused there is no other
material against him which involves him in any one of the
offences alleged and that he is not a partner in the firm which
allegedly sold the explosives to the accused. It was also
contended that A-6 had absolutely no knowledge for which
purpose the purchases were being made to A-2 and he only
followed the instructions of his son A-5 in delivering the
explosives to A-2 and that he was over 82 years of age and in
the absence of any definite proof that he had the knowledge of
the illegal activities of other accused, he cannot be held guilty.
On behalf of the respondents it was contended that the
denial of the confessional statement made by the respective
accused are all afterthoughts. There is no illegality in the
recording of the confessions and the Designated Court rightly
relied upon the same for basing conviction. It was also
contended that an overall reading of confession Ex. P-124 of A-
1 along with other evidence led by the prosecution clearly
shows that the accused has admitted his guilt. Even otherwise
there is the confessional statement of A-2 which seriously
implicates A-1 in the crime which itself is sufficient without
any other further material to convict A-1. It is also submitted
that so far as A-2 is concerned, the very stand taken by him in
313 Cr.P.C. statement would clearly show that his allegation of
obtaining signature on a blank paper is totally false. The
respondents also contend that so far as A-5 is concerned his
involvement is established by the fact that there was
unimpeachable evidence that he sold the explosives to A-2 who
did not have the necessary permit to purchase and use the same.
That apart, there is other evidence to show that he sold these
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 21
explosives at a price higher than the normal prevailing price
because the explosives were being sold for the use of terrorists.
It is also pointed out that this accused has not been maintaining
proper accounts of the sales made by him to A-2 which is also
indicative of the fact that he is involved in clandestine sales. It
was further argued that the confessional statement of A-2
coupled with other independent evidence clearly implicates A-5
of his involvement in the crime. So far as A-6 is concerned it is
contended that though he is not a partner in M/s. Asian
Explosives, there is evidence to show that he was involved in
the business of illegal sale of explosives and as a matter of fact
he had at a point of time collected money from A-2 and
arranged for the delivery of the explosives from the magazine
of A-5 which was subsequently seized by the Police at
Bhilwara, therefore, the evidence produced by the prosecution
is sufficient to uphold the conviction awarded by the
Designated Court to this accused also.
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 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 West Bengal (2002 7 SCC 334). The
passage relied upon by the appellants in support of this
contention of theirs in the said judgment runs thus :
"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
affect him as lending support or assurance to
such other evidence." (emphasis supplied).
We do not think this principle laid down by this Court in
Mohd. Khalid (supra) under section 30 of the Evidence Act
could be applied to confessions recorded under Section 15 of
the TADA Act. Herein it is relevant to note that Section 15 of
the TADA Act by the use of non-obstante clause has made
confession recorded under Section 15 admissible
nothwithstanding anything contained in the Indian Evidence
Act or the Code of Criminal Procedure. It also specifically
provides that the confession so recorded shall be admissible in
the trial of a co-accused for offence committed and tried in the
same case together with the accused who makes the confession.
Apart from the plain language of section 15 which excludes the
application of Section 30 of the Evidence Act, this Court has in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 21
many judgments in specific terms held that section 30 of the
Evidence Act has no role to play when the court considers the
confession of an accused made under Section 15 of the TADA
Act either in regard to himself or in regard to his co-accused.
In the case of State v. Nalini & Ors. (1999 5 SCC 253)
Justice Quadri in paragraphs 688 and 689 of the report has held
:
"688. Having excluded the application of
Sections 24 to 30 of the Evidence Act to a
confession recorded under Section 15(1) of
the TADA Act, a self-contained scheme is
incorporated therein for recording the
confession of an accused and its
admissibility in his trial with co-accused,
abettor or conspirator for offences under the
TADA Act or the rules made thereunder or
any other offence under any other law which
can jointly be tried with the offence with
which he is charged at the same trial. There
is thus no room to import the requirements
of Section 30 of the Evidence Act in Section
15 of the TADA Act.
689. Under Section 15(1) of the
TADA Act the position, in my view, is
much stronger, for it says,
"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 soundtracks 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".
On the language of sub-section (1) of
Section 15, a confession of an accused is
made admissible evidence as against all
those tried jointly with him, so it is implicit
that the same can be considered against all
those tried together. In this view of the
matter also, Section 30 of the Evidence Act
need not be invoked for consideration of
confession of an accused against a co-
accused, abettor or conspirator charged and
tried in the same case along with the
accused." (emphasis supplied)
Therefore the argument of learned counsel that a
confessional statement of an accused made under Section 15 of
the TADA Act can be used only to corroborate other
substantive evidence produced by the prosecution cannot be
accepted.
The next question for our consideration in this regard
would be whether confession recorded under section 15 of the
TADA Act can be solely relied upon for basing a conviction on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 21
the maker of that confession. Learned counsel for the appellants
have argued that the confessional statement especially one that
is made to the Police Officer being a very weak piece of
evidence it is necessary that the court even if it is satisfied that
the confession is made voluntarily and truthfully must seek
corroboration before it could base a conviction on the maker of
the confession. We are unable to accept this argument advanced
on behalf of the appellants. The sting ’if any’ in this argument
is taken away by the wording of Section 15 of the TADA Act.
This Section provides that if an accused person is voluntarily
willing to make a confessional statement section 15 of the
TADA Act, the same can be made to an officer not below the
rank of a Superintendent of Police. The Section further provides
that such statement made to the Police Officer shall be
admissible in evidence. Once the statement is admissible in
evidence then like any other evidence, it is for the court to
consider whether such statement can be relied on solely or with
necessary corroboration. Therefore, the argument that as a
matter of rule such statement u/s. 15 of the TADA Act should
not be relied upon without corroboration cannot be accepted.
We have already noticed that this provision of law is a
departure from the provision of Sections 25 to 30 of the
Evidence Act. As a matter of fact, Section 15 of the TADA Act
operates independent of the Evidence Act and the Code of
Criminal Procedure. The validity of this provision has been
upheld by a Constitution Bench of this Court in Kartar Singh
etc. v. State of Punjab etc. (1994 3 SCC 569). Therefore if the
legislature had thought it fit that in a given set of facts when an
accused is charged with an offence punishable under the
provisions of the TADA Act is voluntarily willing to make a
confessional statement and if such statement is made to and
recorded by an officer not below the rank of Superintendent of
Police in a manner provided in that section, the same is
admissible in evidence, and if the same is proved in a court of
law to be voluntary and truthful in nature, we cannot see why
such a statement should be treated as a weak piece of evidence
requiring corroboration merely because the same is made to and
recorded by a Police Officer. Answering a similar argument
raised as to the acceptability of a confession made to a police
officer without the support of any corroborative evidence in a
TADA case, this Court in Devender Pal Singh v. State of NCT
of Delhi & Anr. (2002 5 SCC 234) by a majority judgment held
:
"The presumption that a person acts
honestly applies as much in favour of a
police officer as of other persons, and it is
not a judicial approach to distrust and
suspect him without good grounds therefor.
Such an attitude can do neither credit to the
magistracy nor good to the public. It can
only run down the prestige of police
administration. See Aher Raja Khima v.
State of Saurashtra (AIR 1956 SC 217)."
Therefore, the argument of learned counsel that merely
because the statement has been recorded by a Police Officer the
same should be treated as a weak type of evidence and should
not be accepted without corroboration, cannot be countenanced.
At this stage we may also notice that the court in a series
of cases has held that the confessional statement recorded under
Section 15 of the TADA Act if found by the courts to be
truthful and voluntary, the same becomes a substantive piece of
evidence which do not require any corroboration and a
conviction can be based without there being any such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 21
corroboration so far as the maker of the confession is
concerned. See D. P. Singh (supra) - (para 33), Jayawant
Dattatraya Suryarao etc. v. State of Maharashtra (2001 10 SCC
109) paras 49 and 60, Lal Singh v. State of Gujarat & Anr.
(2001 3 SCC 221) and S N Dube v. N.B. Bhoir & Ors. (2000 2
SCC 254). Therefore the argument that a confessional statement
being a weak type of evidence must always be corroborated
before basing a conviction, cannot be accepted.
Learned counsel for the appellants then contended that
though section 15 of the TADA Act makes confessional
statement of an accused admissible evidence against the other
accused, still the same cannot be accepted by the courts without
further corroboration on material facts to base a conviction
against the co-accused. Even this question in our opinion is not
res integra. This Court in many cases in which confession
recorded under section 15 of the TADA Act has considered the
probative value of a confession made by one accused involving
other co-accused. In those judgments, this Court has laid down
that in view of the fact that section 15(1) clearly indicates that
the intention of Parliament was to make the confession of an
accused substantive evidence against himself and the co-
accused and the same can be relied upon to base a conviction
against both. However, while doing so this Court as a measure
of abundant caution has held it prudent to seek general
corroboration of the confession of a co-accused to base a
conviction on another co-accused. This Court in Devender Pal
Singh (supra) by a majority judgment held :
"The Confessional statement of the accused
can be relied upon for the purpose of
conviction, and no further corroboration is
necessary if it relates to the accused himself.
However, as a matter of prudence the court
may look for some corroboration if
confession is to be used against a co-accused
though that will be again within the sphere
of appraisal of evidence."
In State v. Nalini (supra) a 3-Judge Bench of this Court
considered this question. Wadhwa, J., in that case held that
what weight should be attached to such evidence is a matter in
the discretion of the court, and as a matter of prudence, the
Court may look for some more corroboration if confession is to
be used against a co-accused. While Quadri, J. agreeing with
Wadhwa, J. held that the rule of prudence would require that
the Court should examine the same with great care and should
not be relied upon unless it is corroborated by other evidence on
record. While Thomas, J. took a contrary view by holding that
while confession is substantive evidence against its maker it
cannot be used as a substantive evidence against the other
persons, even if the latter is a co-accused but can be used as a
piece of corroborative material to support other substantive
evidence. Here we notice that the majority opinion is that such
confession of one accused can be used as substantive evidence
against another accused but court in its discretion should seek
general corroboration to support such confession. In Bharatbhai
@ Jimi Premchandbhai v. State of Gujarat (2002 8 SCC 447)
similar view was taken by this Court holding that a confessional
statement of a co-accused is also substantive evidence against
his co-accused. (see para 19). This Court in S. N. Dube’s case
(supra) also held that confession recorded under section 15 of
the TADA Act is a substantive piece of evidence and can be
used against a co-accused also. A contrary view taken by this
Court in Kalpnath Rai v. State (1997 8 SCC 732) was held to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 21
no more a good law following the decision of this Court in
Nalini’s case (supra) by a subsequent judgment of this Court in
S. N. Dube’s case (supra). Therefore we notice that the
accepted principle in law is that a confessional statement of an
accused recorded under section 15 of the TADA Act is a
substantive piece of evidence even against his co-accused
provided the concerned accused are tried together.
The requirement of seeking corroboration while using the
confessional statement of an accused, against his co-accused
has given rise to another argument on behalf of the appellants
that the said corroboration should be on all material facts
mentioned in the confession and not a mere general
corroboration. The respondent of course has argued that this is
not the requirement of law and if at all a corroboration is
required the same need only be in the nature of a general
corroboration. Like the other legal issues involved in this case,
we have no difficulty in answering this issue also because of the
earlier judgments of this Court with which we are not only
bound but are also in respectful agreement. In Lal Singh etc. v.
State of Gujarat & Anr. (2001 3 SCC 221) this Court held that
"when there is confessional statement it is not necessary for the
prosecution to establish each and every link as confessional
statement gets corroboration from the link which is proved by
the prosecution. In any case, the law requires establishment of
such a degree of probability that a prudent man may on its
basis, believe in the existence of the facts in issue."
In Ravinder Singh v. State of Maharashtra (2002 9 SCC
55) this Court held that if corroboration is to be required, then it
is sufficient if there is a general corroboration of the important
incidents and not that the corroborative evidence itself should
be sufficient for conviction. In State of Maharashtra v. Bharat
Chaganlal Raghani & Ors. (2001 9 SCC 1) it was held that a
requirement of corroboration even in a retracted confession is
not a rule of law but a rule of prudence, and the general
corroboration of confessional statement is sufficient to sustain
conviction on the basis of such confession. In the case of Nalini
(supra) we have already noticed that the majority of the Judges
have held that as a matter of prudence Court may look for some
corroboration if confession is to be used against a co-accused
though that will again be within the sphere of appraisal of
evidence. Justice Quadri in his judgment has specifically stated
that what is required is only a general corroboration.
The above observations of the majority in the case of
Nalini (supra) has been accepted in Devender Pal Singh (supra)
wherein the Court agreeing with the majority judgment in
Nalini’s case (supra) held that what is required as corroboration
of a evidence of the co-accused is only a general corroboration.
Therefore it has to be held that when a confessional statement
recorded under section 15 of the TADA Act is to be used
against a co-accused prudence requires that the court should
look for some general corroboration, such corroboration need
not necessarily be on material facts mentioned in the confession
but should be of such nature as to create confidence in the mind
of the court to rely upon such confession.
The next legal argument of the appellants is that the
confessional statements must always be sent to the CMM or the
CJM as required under Rule 15(5) of the Rules, and the non-
compliance of the said statutory provision makes the
confessions inadmissible. It is true that Rule 15(5) of the TADA
Rules states that any statement recorded under Section 15
should be sent forthwith to the Chief Metropolitan Magistrate
or the CJM having jurisdiction over the area in which such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 21
confession has been recorded and such Magistrate shall, in turn,
have to forward the recorded confession so received to the
Designated Court which may take cognisance of the offence. A
perusal of the scheme of Rule 15 shows that the object of this
Rule is to safeguard the interest of the maker of the confession
by directing the confessional statement to be taken out of the
hands of the Police so that there could be no subsequent
interpolation. Rule 15(5) does not ascribe any role to the CMM
or the CJM of either perusing the said statement or making any
endorsement or applying his mind to these statements. It merely
converts the said courts into a post office for further
transmission to the concerned designated court, therefore, the
object of the Rule is to see that the statement recorded under
Section 15 of the Act leaves the custody of the recorder of the
statement at the earliest so that the statement has a safer
probative value. In our opinion transmission of the recorded
confessional statement under Section 15 of the Act to the CMM
or the CJM under Rule 15(5) is only directory and not
mandatory. It has been so held by this Court in Wariyam Singh
& Ors. v. State of U.P. (1995 6 SCC 458). This judgment of
Wariyam Singh (supra) was subsequently followed in a later
judgment of this Court in Devender Pal Singh’s case (supra).
Learned counsel for the appellants, however, contended that
this Court in the case of Bihari Manjhi (supra) has held that
non-compliance of Rule 15(5) would vitiate the probative value
of such confessional statement. We have carefully perused the
said judgments and we do not think this Court in the case of
Bihari Manjhi (supra) has said that the requirement of Rule 15
of the Rules is in any way mandatory. In the said case, this
Court proceeded on the basis that Rule 15 of the Rules is
directory but on the facts of that case it held that it does not
mean that the Investigating Officer is not required to follow the
said procedure, that because of the facts of that case the court
held that the investigating agency had adopted unjustified
methods. Therefore, there is no substance in the argument of the
appellants that in the case of Bihari Manjhi (supra) this Court
had taken a different view than the one taken in Wariyam
Singh’s case (supra). However, in the case of non-compliance
of such procedure, the concerned court should examine on facts
of that case whether the delay if any, in sending the
confessional statement to the concerned Designated Court has
given rise to any doubt as to the genuineness of the confessional
statement.
To sum up, our findings in regard to the legal arguments
addressed in these appeals we find :
(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
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 21
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.
On the basis of the above findings of ours on the legal
issues involved in this case, we will now consider the probative
value of the confessional statements relied by the prosecution in
this case. We will also examine whether on facts of this case,
the confessions Ex. P-109, P-124, P-126 and P-128 were made
in accordance with the mandatory requirement of law, and if so,
whether they are voluntary and truthful, and if so whether such
confessions require corroboration or not.
The prosecution has relied on the statement of Gyani
Pratap Singh, A-1, as per Ex. P-124 as a confessional statement.
The trial court also relying upon the said confession has
convicted the appellants and others as also taking note of other
evidence led by the prosecution in this case. The said statement
of A-1 was recorded on 21.2.1991 by PW-42 D. R. Meena. On
behalf of the said accused, learned counsel has argued that the
said confession is not genuine, and is in a language not known
to the said accused, and also without complying with the
mandatory requirement of law. It was also contended that the
said statement is recorded by a Police Officer involved in the
investigation of the case, therefore, no reliance should be placed
on that statement. It was further contended that assuming that
Ex. P-124 is legally recorded, voluntary and truthful even then
the said statement cannot be used by the prosecution as a
confessional statement since there is no admission of guilt
anywhere in the said document involving the maker of the
confession namely, A-1. It is submitted that the entire document
Ex. P-124 is exculpatory in nature, therefore, the question of
treating the said document as a confession does not arise. The
further argument addressed on behalf of this accused is that if
Ex. P-124 is to be excluded from consideration then the
prosecution has not produced any other material whatsoever to
prove the charges against A-1.
A perusal of this statement Ex. P-124, shows that all that
this accused stated is that A-10 Madha Singh was the brother-
in-law of his brother, he knew that said Madha Singh was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 21
connected with Babbar Khalsa and had visited him sometime in
1990 at Nanded with four of his companions who are also
accused in the case and that he provided accommodation to
them in a Gurudwara. He admitted that he knew A-2 and also
that the said accused worked as a rock blaster. His further
statement as per Ex. P-124 is that he came to know sometime in
July, 1990 that A-4 was engaged in anti-national activities and
had gone back to Punjab with some ammunition. But he states
specifically that when he came to know about the nefarious
activities of some of these accused persons, he was worried
about them and thereafter, he refused to accommodate them.
But he admits that he did provide medical assistance to A-10 as
also to A-4 when they needed the same even after he came to
know of the activities of these persons. This accused in his
statement Ex. P-124 further states that when he came to know
of the seizure of the explosives by the Rajasthan Police, he told
A-2 that he had warned these accused persons not to indulge in
such activities but they did not pay any heed to his words,
therefore, they will have to suffer the consequences. From a
plain reading of Ex. P-124, we find it difficult to come to the
conclusion that this document can be treated as a confession of
A-1. The basic ingredient of a confession i.e. admission of guilt
is absent in the contents of this document. On the contrary, the
maker of this statement, namely, A-1 specifically exculpates
himself by stating that when he came to know of the activities
of other accused, he deprecated the same and distanced himself
from them. He also states that he had warned these accused
persons from indulging in such activities and expressed his
feeling that they will have to suffer the consequences of their
illegal acts. This is a clear indication of A-1 exculpating himself
from the crime rather than admitting any such crime in the said
statement. Then again we notice that nowhere in the body of
the statement this accused admits any prior knowledge of the
activities of these accused persons or their object of visiting
Nanded. He generally states that the accused persons visited
him at Nanded and sought for accommodation and since he was
a Granthi of a Gurudwara there, he provided them
accommodation, therefore, it should be held that a reading of
Ex. P-124 does not in any way inculpate A-1 with the crime
with which he is charged. Question then is can this document
be treated as a confession under Section 15 of the TADA Act
which is otherwise an inadmissible document.
Learned A.S.G., however, contends that this statement of
A-1 is a self-serving statement to prove his innocence therefore
this statement should be read along with confessional statement
of A-2 as per Ex. P-126 as also along with other evidence led
by the prosecution in the trial which would clearly show that A-
1 had the knowledge of the object of the visit of A-10 and other
accused persons and took an active part in procuring the
explosives, making the payment, providing accommodation,
medical assistance etc. Therefore, learned counsel submits that
these activities of A-1 which can be deduced from his statement
coupled with other evidence, is suggestive of his guilt,
therefore, his statement should be read in conjunction with the
other evidence led by the prosecution to find out whether Ex. P-
124 is a confession or not.
We do not think we can accept this argument of learned
ASG. While considering the contents of Ex. P-124 for the
purpose of finding out whether the said statement amounts to a
confession or not, the document in question will have to be
considered on the basis of the statement found in itself and
there is no scope for any external material being taken into
consideration to draw an inference that what the accused stated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 21
in the so-called confessional statement could be an admission of
a guilt. As stated above, in the instant case, we are not able to
find any inculpatory statement in Ex. P-124 by itself so far as
the maker of the statement, namely, A-1 is concerned and in the
absence of which, in our opinion, this document cannot be
construed as a confessional statement because at this stage we
are not considering the fact whether the prosecution has
established its case against A-1 from other evidence. We are at
this stage only considering whether Ex. P-124 is confession or
not for which we will have to look into the contents of Ex. P-
124 only.
Since we have come to the conclusion that Ex.P-124 by
itself is not a statement of confession, because of its
exculpatory nature, we need not consider the other grounds of
attack made by the appellant on the making of Ex. P-124 or the
alleged statutory violations in preparing the said document.
Be that as it may, learned A.S.G. contended that de hors
the aid of Ex. P-124, A-1 is liable to be convicted on the basis
of the confessional statement of A-2 Ex. P-109. Learned
counsel submits that from the statement of Didar Singh, A-2, as
per Ex. P-126, it is crystal clear that A-1 was actively involved
in providing accommodation to other accused persons knowing
fully well the illegal object of their visit to Nanded and in
helping them to procure the explosives by recruiting A-2 and
providing financial and medical assistance to the said accused
as also to transport the said explosives to Punjab. Therefore,
from the said statement of A-2 as per Ex. P-126, a conviction is
liable to be based against A-1 even without corroboration. He
also submits that if there was any need at all for any
corroboration, the same according to him is found in the
confessional statements of A-7 to A-9 i.e. Ex. P-109, P-128 and
P-129 respectively as also from the oral evidence of PW-24.
As noticed earlier, so far as A-2’s confession is
concerned, it is the confessional statement of a co-accused, and
on facts and circumstances of this case we think it is not safe to
base a conviction on A-1 unless we are able to find some
corroboration of general nature at least from the other evidence
led by the prosecution in this case. Though the learned
Additional Solicitor General has contended that there is
sufficient corroboration for the confession of A-2 in the other
evidence led by the prosecution, we are unable to find any such
corroboration in the other evidence led by the prosecution to
support the confessional statement of PW-2 as per Ex. P-126.
We are also unable to find any corroborative piece of evidence
of even general nature in the confessions of other accused
persons to implicate this accused. All that the other evidence
produced by the prosecution including the confessions of A-7 to
A-9 shows is that A-1 provided accommodation, financial and
medical help. This by itself will not help the prosecution
because as contended on behalf of A-1, there is no material to
show that A-1 had the knowledge of the motive of other
accused. No other material on record except Ex. P-126 connects
A-1 with A-5, A-6 or for that matter with other accused in
regard to the procurement and transport of the explosives. Thus
what remains is only the confession of A-2, a co-accused,
which as observed by us hereinabove requires corroboration
and having found none even generally, we think it not safe to
base the conviction of A-1 solely on the basis of Ex. P-126.
We will next take up the case of the prosecution as
against Didar Singh, A-2. As stated above, even in regard to the
confessional statement of Didar Singh, A-2 as per Ex. P-126,
learned counsel appearing for the said appellant has contended
that the same was never made by the said accused and his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 21
signature was taken on a blank paper and that this accused had
no knowledge of Hindi. It is also contended that the fact that he
had signed Ex. P-126 in Gurumukhi, itself shows that he had no
knowledge of Hindi. Learned counsel has contended that apart
from the above suspicious circumstance attached to the said
statement of A-2, the statement in question was not sent to the
CJM, Jaipur as required under Rule 15(5) of the TADA Rules,
therefore, the same being contrary to the statutory requirement
is inadmissible in law. It is also contended that A-2’s signature
is found in the margin of Ex. P-126 which itself shows that the
signature was taken on a blank paper.
As far as the argument of non-compliance of Rule 15(5)
of the Rules is concerned, we have held the same to be
directory and not mandatory. On facts, we notice that even
though the confessional statement as per Ex. P-126 is not sent
to the CJM or the CMM, the same has reached the Designated
Court without delay, therefore, there is no reason to even
suspect that the said confession has remained with the Police,
for an unduly long period, so as to suspect the genuineness of
the same, hence this argument is rejected.
Learned trial Judge while considering the attack on Ex.
P-126 as to its genuineness and truthfulness in the impugned
judgment has held that the allegation that A-2 did not know
Hindi, cannot be true. For this purpose he relied upon the
evidence of D. R. Meena, PW-42 who recorded the said
confessional statement of A-2 and noted that the said witness
had specifically stated that he verified and found out that A-2
knew Hindi, both to write as well as to read. He also noted from
the said evidence that the accused first signed the last page after
the statement was read over to him and thereafter in the other
pages, he signed in the margin. This explanation in the evidence
of PW-42 as accepted by the learned trial Judge in the absence
of any other material in support of A-2’s allegation sounds
plausible to us also.
It is also to be noticed that this accused has taken
contradictory stand in regard to the recording of his
confessional statement. In an application filed before the CJM
he had contended that his signature was taken on a blank paper
while in his Sec. 313 Cr.P.C. statement before the trial court he
stated that his signature was taken on papers in which statement
in Hindi was already written which statement he had not made.
These two contradictory statements themselves are sufficient to
belie the stand of the accused that the statement as per Ex. P-
126 was not made by him.
We notice from the evidence of PW-42 and the
endorsements made in Ex. P-126 that PW-42 had put all the
required preliminary questions to this accused to find out the
voluntariness of the statement and satisfied himself about the
same. He had also cautioned this accused as to the
consequences of making such statement and made it known to
him that it was not mandatory for him to make such a
statement. He has also attached a certificate that he was
satisfied that the said statement was voluntary as required by
the Act and the Rules. The evidence on record clearly shows
that PW-42 even though was in some way connected with the
investigation has not shown any extraordinary interest in
recording confessional statements. In this regard we may notice
that PW-42 had also recorded the confessional statement of A-1
in this case and from a perusal of which we have held that there
is no inculpatory admission of A-1 in that statement. If really
PW-42 was the type of officer who will prepare false
confessional statement he would have also indulged in such
misconduct in the case of A-1 also. That apart, on behalf of A-2
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 21
no special reasons have been pointed out why PW-42 should
have indulged in getting a false confessional statement. This
also supports the case of the prosecution that the allegation of
fabricated confession is an afterthought. That apart, as it
happens very often it is the common defence of a person
making confessional statement to deny the same or retract from
the same subsequently and to allege compulsion in making such
statement. In this background, we think the trial court rightly
rejected the attack as to the genuineness of Ex. P-126. We are
also of the opinion that the contents of Ex. P-126 are truthful
and sufficient enough to accept the prosecution case as against
A-2 and the same do not require any further corroboration. Be
that as it may, even otherwise the evidence led by the
prosecution apart from the confessional statement in the form of
oral evidence of PW-1 Sanjay Gaware and PW-24 G.P.S.
Dhaliwal also establishes the involvement of A-2 in the crime,
therefore, we are in agreement with the trial court that the
prosecution has established the guilt of A-2 beyond all
reasonable doubt.
At this stage, we may take note of the fact that accused
A-7 to A-9 have also made confessional statements as per Ex.
P-109, P-128 and P-129 and based on those statements, they
have also pleaded guilty and have been convicted which
conviction and sentence have become final since the same was
not challenged. The court below has treated the statements
found in these confessional statements as corroborative pieces
of evidence to support the confession made by A-2. Learned
counsel for the appellants have contended that a confessional
statement of a co-accused cannot be used as a corroborative
piece of evidence if the court comes to the conclusion that the
confession of an accused requires corroboration from other
sources to accept the same. In other words, the argument of
learned counsel for the appellants is that confession of one
accused cannot be used as a corroborative piece of evidence to
support the confession of another accused. Their contention is
that if corroboration is necessary then the same should be not
from a confessional statement of a co-accused but should be
from other sources. We do not think there is any force in this
argument. As noticed hereinabove, Section 15 of the TADA
Act has statutorily made the confessional statement of an
accused as an evidence admissible against a co-accused,
therefore, it is futile to contend that if corroboration is
necessary to accept a confessional statement of an accused, the
same cannot be found in another confession of a co-accused in
the same trial, unless, of course, the Court on facts and
circumstances of a case considers it necessary to seek
corroboration from an independent source. However, if both the
confessions are of such quality that the Court does not consider
it safe to act on such confessions then like any other piece of
evidence the confessions of co-accused cannot be used even for
corroborating another confession of another accused on the
principle that one doubtful piece of evidence cannot be
corroborated by another doubtful piece of evidence. Therefore,
in our opinion, an acceptable confession of a co-accused can be
used as a corroborative piece of evidence in a trial under TADA
Act, even to corroborate a confession of another accused in the
same trial.
On facts of the case, learned counsel then argued that the
confessional statements of accused A-7 to A-9 as per Ex. P-
109, P-128 & P-129 are not made in the same trial in which
these appellants were tried. They contend since accused A-7 to
A-9 pleaded guilty, they were convicted by the trial court at the
stage of recording of their pleas, therefore, the trial of those
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 21
accused got separated from that of the appellants, hence the
trial leading to the conviction of A-7 to A-9 is different from
the trial in which the appellants were tried. This argument is
based on the proviso to Section 15(3) of the TADA Act.
Learned ASG opposing this contention submitted that all
these appellants including A-7 to A-9 were sent up for trial in
one chargesheet, the Designated Court took cognisance of the
offence against all these accused together, all charges were
framed by a common order, the recording of pleas was also
simultaneous and more importantly, there has been no order
separating the trial of A-7 to A-9 from the other accused
persons which includes the appellants herein. Learned counsel
relied on Section 229 of the Cr.P.C. to contend that it is not
always obligatory on the part of the trial court to convict a
person at the stage of recording of the pleas based on his plea of
guilt and the court has the choice of convicting accused persons
who plead guilty either at the stage of recording of plea or even
at the final stage when the trial in regard to the other accused
persons concludes. Therefore, the mere fact that the trial court
chose to convict A-7 to A-9 at the stage of recording pleas
would not amount to separating their trial from that of the other
accused including the appellants herein unless there was a
separate order to the effect that the trial of A-7 to A-9 was
separated.
Having considered the arguments of learned counsel for
the parties on this question we find no substance in this
argument of the appellants. As contended by learned Additional
Solicitor General, there has been no order separating the trial of
A-7 to A-9 from that of these appellants and the facts narrated
by learned A.S.G. clearly show that the same trial continued
even after A-7 to A-9 were convicted based on their pleas.
Therefore, the argument of learned counsel for the appellants
that A-7 to A-9 were not tried in the same trial as the appellants
cannot be countenanced.
In regard to the case of Jameel Ahmed, A-5, the
argument of learned counsel for the said appellant is that apart
from the confession of A-2 there is no material whatsoever to
show that this appellant had any knowledge as to the purpose
for which A-2 purchased the explosives. It is argued that A-2
was a regular customer of this appellant and was purchasing the
explosives for the purpose of his professional work therefore
assuming that some of the explosives sold by this accused
person was proved to have been transported to Punjab for use
by the terrorists, there is no material to establish that this
accused had any knowledge that the explosives were meant for
the use of terrorists, therefore this accused cannot be accused of
either conspiring or abetting any terrorist activities. It was
contended that A-5 is a licensed dealer in explosives therefore it
is in the normal course of his business he had sold the
explosives to A-2. It is also contended that there is no material
to connect the explosives seized at Bhilwara with the explosives
sold by this appellant to A-2. It is also contended confession of
A-2 being a confession of a co-accused, the same should not be
relied upon without corroboration and there being no
corroboration, the appellant is entitled to succeed in this appeal.
We have already considered the probative value of the
confession of Didar Singh, A-2, made as per Ex. P-126 and
have held that the same is made voluntarily and the contents are
truthful. We have not accepted the contents of the said
confession as against A-1 not because the contents are not
truthful but because we felt it is prudent to seek some
corroboration generally in the evidence led by the prosecution
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 21
to support the contents of the confession of A-2 against his co-
accused (A-1). In this background, if we discuss the confession
of A-2 we find that he has stated that Jameel Ahmed A-5
owned a shop in Akola in the name of Asian Explosives and in
July, 1989, A-5 met him and said that he would provide him
with explosives for his work and requested him to buy
explosives from him. It is thereafter Jameel Ahmed A-5 and his
servant started delivering the explosives to him. It is the further
statement in the said confession that A-5 used to come to
Nanded once a month to collect the cost of explosives supplied
and would find out the future requirement for the purpose of
such future delivery. A-2 also states in the said statement that
A-5 was normally being paid in cash or when required A-5 used
to sell him explosives on credit basis. It is the further statement
of A-2 that around 28/29.11.1990 Jameel Ahmed A-5 came to
his house when he told Jameel that terrorists of Punjab required
2 1/2 to 3 Qtls. of gelatine and 400 detonators and were ready to
pay a sum of Rs.1,000 per carton, A-5 agreed to sell the said
quantity of explosives but told him that he did not have ready
stock therefore he will make arrangements for the same. It is the
further statement in Ex. P-126 that on 2/3.12.1990 A-2 made a
telephonic call from Akola to telephone No.4878 from a PCO
to A-5 but he could speak only to Ismail Bhai A-6 father of A-
5. He was told by said Ismail that A-5 had told him about A-2
but he had not received the goods then therefore they were not
able to send the goods to Nanded. It is the further statement of
A-2 that thereafter on about 9/10.12.1990 he again telephoned
to A-5 but again could not talk to him but Ismail Bhai A-6 told
him certain goods, detonators and Calcium Ammonia Nitrate
bags will be sent to A-2 soon and that subsequently the said
goods were delivered and stored in a room rented by A-2 at
Usman Road. From the above confessional statement of A-2 it
is seen that A-5 was known to A-2 and was supplying
explosives knowing very well that A-2 had no licence for using
the same. It can also be noticed that sometime around
September, 1990 on a request being made by A-2 for supply of
certain quantities of gelatine and detonators for use of terrorists
in Punjab, A-5 knowing the object of purchase, agreed to
supply the same. It is also to be noticed since it has come in
evidence that the prevailing price of gelatine at that point of
time was Rs.650 per carton, A-5 had agreed to accept the
enhanced amount of Rs.1,000 per carton which is also
indicative of the fact that A-5 knew that these explosives were
being used for some more serious offences, rather than illegal
blasting of rocks, because the price which he collected from A-
2 for this supply was more than the price he used to get from A-
2 for his normal purchase. It is further seen that whenever it
was not possible for A-5 to be present at the time of delivery of
explosives, he used to instruct his father Ismail Bhai A-6 to
supply the explosives as agreed by him with A-2. Whether A-6
actually knew about the purpose of the sale is a different matter
which we will consider separately when his case is taken up,
but suffice it to notice at this stage that from the confession of
A-2 it is established that A-5 knowingly that the explosives will
be used by the terrorists of Punjab, supplied explosives to A-2.
The next question for our consideration then will be: has
the prosecution adduced any corroborative evidence in support
of the confession of A-2 even generally, to persuade us to
accept that part of the confessional statement which implicates
A-5. In this process, it is seen that apart from the confessional
statement there is the evidence of PW-1 Sanjay Gaware which
shows that at the time mentioned in the confessional statement,
he had travelled to the shop of A-5 at Deepak Chowk along
with A-2 and he was also present as stated in the confessional
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 21
statement when A-2 gave money to Ismail Bhai A-6 as also
while collecting the explosives from the magazine belonging to
A-5. Evidence of this witness corroborates the statement found
in Ex. P-126 to the extent that certain explosives were collected
from the magazine belonging to A-5 and the costs of the said
explosives were paid in the shop of A-5 to A-6 though A-5 was
not present at the shop. The agreed price of the explosive of
Rs.1000 was known to A-6 because he was told so by A-5
therefore this fact corroborates the statement in the confession
of A-2 that Rs.1,000 per carton was agreed to be paid because
the explosives were going to be used by the terrorists of Punjab.
This apart, PW-14 in his evidence stated for the period between
January, 1990 and December, 1990 (the relevant period) Asian
Explosives of which A-5 was a partner, had not sent their
statement/returns. This witness being Joint Chief Controller of
Explosives was aware of that fact because he had examined the
register of the firm of A-5. Evidence of PW-14 is further
supported by evidence of PW-23 K.T. Lokhande who was
Controller of Explosives at Nagpur at the relevant time who has
also stated that Asian Explosives in its registers had kept the
relevant columns blank, contrary to the requirements of law
which in the normal course would have recorded the batch No.
and date of consignment received by it, which failure also
indicates Asian Explosives of which A-5 was In-charge Partner
was concealing the fact of receipt of explosives and the sale
thereof to prevent the identification of the explosives sold by
him to A-2. This omission in the register which pertains to the
date when he sold the explosives to A-2 also indicates the guilty
mind of A-5. Further the evidence of PW-30 who had rented 2
rooms to A-2 as also evidence of PW-24 Gurusewak Pritam
Singh (G.P.S. Dhaliwal) shows that A-5 was visiting A-2 at the
relevant point of time. The fact that the prosecution has
established that A-5 had supplied two bags of Calcium
Ammonia Nitrate to A-2 also supports the prosecution case that
the supply of explosives made by A-5 to A-2 was not for use by
A-2 in rock blasting because the said Calcium Ammonia Nitrate
is not an explosive which can be used for the said purpose of
rock blasting as is evident from the report of chemical
examiner.
From the above material we are satisfied that the
prosecution has produced material which could be treated as
evidence generally corroborating Ex. P-126 which in our
opinion is sufficient to establish the guilt of A-5.
We now take up the case of A-6, father of A-5. In regard
to this accused person, apart from the confession of A-2 Didar
Singh as per Ex. P-126 the prosecution relies on the evidence of
PW-1 Sanjay Gaware which according to the prosecution,
sufficiently corroborates the confession of A-2. In his
confessional statement as per Ex. P-126 A-2 has stated that
after he struck a deal with A-5 as to the supply of explosives to
be used by the terrorists in Punjab, he telephoned to A-5
sometime around 2/3.12.1990 but could get only his father
Ismail Bhai (A-6) who told him that A-5 had told him about the
supply of explosives but the ready stock was not available and
the same will be sent to Nanded when it is available. Again on
9/10.12.1990 when A-2 telephoned A-6 told him that the
explosives will be sent as soon as possible. Then on 11.12.1990
when he went to the shop of A-5 he found A-6 was sitting there
and when A-2 reminded A-6 about the telephonic talk A-6 told
him that A-5 had told him about the same. The confessional
statement at this stage states : "Ismail Bhai enquired from me as
to whether I am talking about the same explosives which are to
be given to the kharkuous of Punjab. On my saying, Ismail bhai
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 21
told me that Jamil (A-5) had already told him about this." The
confession then goes on to say that A-6 collected the cost of
explosives at Rs.1000 per carton and in total Rs.12,000 for 12
cartons. Thereafter he sent one of the employees of the firm
with A-2 to the magazine of the firm to collect the explosives.
The statement made in Ex. P-126 in regard to A-2 going to the
shop, paying money to A-6 and A-6 sending a servant with A-2
to the magazine of the firm to collect the explosives is
supported by PW-1 Sanjay Gaware but his evidence does not
establish the statement attributed to A-6 in the confession that
he asked A-2 whether the explosives are meant for terrorists of
Punjab. If we could solely rely on the confession of A-2 then
the contents of the same would certainly implicate A-6 also of
the charges framed against him. But in view of the fact that we
have as a measure of prudence decided to seek corroboration to
the confession of A-2, we find no corroboration in the evidence
led by the prosecution for the fact that A-6 had knowledge that
the explosives were being purchased by A-2 to be used by the
terrorists of Punjab. De hors the statement in the confession, no
other evidence is led to show that A-6 had the knowledge that
the explosives are being purchased by A-2 to be used by the
terrorists of Punjab. It is true that in regard to A-5 we have
accepted the other corroborative piece of evidence, which could
be argued is also available against A-6 but it is not so because
A-6 is neither the owner nor partner of the firm which sold
explosives to A-2, he was only helping his son A-5 in the
transactions of the firm as and when required on a casual basis.
When A-6 spoke to A-2 it has come in evidence that he
specifically told A-2 that he will be informing A-2 of the arrival
of explosives as desired by A-5. Even on the date when he
collected the money and sent one of the servants of the firm
with A-2 to collect the explosives, it has come in evidence that
A-6 did so because he was told to do so by his son. Even the
excess amount collected by way of Rs.1000 per carton from A-
2 was done by A-6 because he was asked to do so by A-5. Thus
there is no evidence even indirect, other than the solitary
statement found in the confession of A-2 that A-6 had the
knowledge that the delivery of explosives was for and on behalf
of Punjab terrorists. Since A-6 was not a partner of the firm, no
adverse inference can be drawn against A-6 on the ground of
the deliberate failure to make entries as to the receipt and sale
of explosives in records of the firm. For these reasons we say
that the prosecution has failed to produce any corroborative
evidence in addition to the confessional statement of A-2
therefore by the standard adopted by us for relying on the
confession of A-2 to base a conviction on the co-accused, we
find it difficult to uphold the conviction of A-6.
For the reasons stated above, we allow Crl. A. No.215 of
2003 filed by Gyani Pratap Singh and Crl. A. No.1308 of 2002
filed by Ismail Bhai (A-6). If the appellants are in custody, they
shall be released forthwith, if not required in any other case. If
they are on bail, their bailbonds shall stand discharged.
We confirm the conviction and sentence imposed on
Jameel Ahmed (A-5) in Crl.A. No.1308 of 2002 as also on
Didar Singh Saini in Crl.A. No.1361 of 2002 and the said
appeals stand dismissed. If these appellants are on bail, their
bailbonds shall stand discharged, and they shall be taken into
custody to serve out the remainder of their sentences.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 21