LAL SINGH ETC. ETC v. STATE OF GUJARAT AND ANR

Citation: [2001] 1 S.C.R. 111

Court: Supreme Court of India

Bench: M.B. SHAH, S.N. PHUKAN

Judgment text

LAL SINGH ETC. ETC. \( STA TE OF GUJARAT AND ANR. JANUARY 9, 2001 [M. B. SHAH AND S. N. PHUKAN, JJ. ] Terrorisl and Disruptive Aclivities (Prevention) Ac! , 1987--Section 3(2) u11d 3(3)-0f/ences under-Nature o/-Convil:lion under-Held. un accused rnn be com·icted under Section 3(3) ll'ithout conl'icting any other uccu. W! d under Section 3(2)·-Section 3 (3) constitutes an independent ojfi'nce. Section 3-Benefit of doubt-Accused charged with conspiracy to commit terrorist acts-Recove1J· of arms on the hasis of the confessional statement of co-accused-Accused facilitating the activities of the coaccused-Held, presumption ofinnocence ceases lo exisl-Accused lo explain the recovelJ'· Section I 5-Confessional starement-Validity of-Statement recorded while the accused was in police custody-A/legalion that guidelines laid down in Kartar Singh v. State ofPunjab not followed-Held, the confessional statement is admissible in evidence-Can be relied upon against !

he accused-Terrorist and Disruptive Activities (Prevention) Rules, 1987-Rule 15. Terrorist and Disruplive Activities (Prevenlion) Rules, 1987-Rule /. /- Search-Validity of-Search carried out prior to registration ofa case under Terrorist and Disruptive Activities (Prevention) Act-Search by Superintendent of Police without warrant issued by the District Magistrale- Held, not vitiated-Code of Criminal Procedure-Sec/ion 165. Penal Code-Section I20-B-Cri111inal conspiracy-Burden ofproof- Conspiracyfor commission ofterrorisl activities-Confession by the accused- Held, proof reqz1ired is of such degree that a prudent 111an on its basis 111ay believe in the existence ofthefacl in issue-Terrorist and Disruptive Activities (Prevention) Ac1, 1987--Section 3.

Twenty-one persons, including the Appellants, were tried jointly for commission of offences under Sections 3(3) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 120-B of the Indian Penal Code, Section 5 of the Explosive Substances Act and Section 25 of the ... ,, Arms Act. The case of the prosecution was that Accused No. I was arrested on 16. 7. 1992 at Dadar Railway Station in respect of RC 5/92. The Bombay police recorded the confession of Accused No. I and on coming to know that his associates were operating from Baroda and other cities of Gujarat, the Commissioner of Police, Baroda was informed. The Baroda police interrogated Accused No. I and came to know that arms and ammunitions had been stored by the accused persons in two premises in Ahmedabad, i. e at Paresh Apartment and at Usman Harun Society.

The premises were raided by the Superintendent of Police, CID (Crime) in front ofp1111cl111s and huge quantities of arms, ammunitions and explosives were recovered from there. Thereafter, RC-6/92 was registered and investigations were carried out. J.. The prosecution alleged that the accused persons had hatched a criminal conspiracy to undertake subversive and terrorist activities in India and abroad between September 1988 to July 1992 for facilitating the creation of Khalistan and liberation ofJammu and Kashmir. Accused No. 2 was a Pakistani national and an agent of the Pakistani military intelligence, who had entered into India for getting information regarding defence base of India and for collecting other inside information in connection with defence personnel and army positions in India. For this purpose he contacted Accused Nos. I, 3 and 4. Accused Nos. I and 2 entered into India, lodged at different places in order to achieve the goal.

Both of them created contacts in India with Accused No. 20 at Aligarh and Accused Nos. 3 and 4 at Bombay. Accused Nos. I and 2 visited various places of India including Ahmedabad and Bombay under their fake names. The modus operandi of these two accused persons was to have their activities ur:der false identity. Their targets were to create hideouts, to have their own agents, to have their contacts with the agents in Pakistan, UK·, Canada etc. and to have hideouts elsewhere. Accused Nos. I and 4 visited Madras to survey the stock exchange building to find out the possibility of a bomb blast there. The accused persons were using various types of vehicles out of which vehicles, one jeep and scooter were recovered from Ahmedabad and one Gypsy was recovered from Bombay. During interrogation of Accused No. 1, hideouts of the accused in Paresh Apartment and Usman Harun Society at Ahmedabad came to be known and raids on these hideouts resulted in recovery of arms and ammunitions.

LAL SINGH v. STATE OF GUJARAT 113 The _further case of th«; prosecution was that all the Appellants gave their confessional statements in which they corroborated each other. Accused No. I in his confessional statenrcn. t admitted that after the Operation Blue Star, he _started working for the independent state of Khalistan and was sent to Pakistiln; Iu Pal aresh Apartnients and purchased a nat fo Usnian H~run s6ciety ti:> hide ac~nsignm~ent ofarms and ammunitions that w~~ comingto India. He~~ purcfliise . J ~as recovered which showed the clii°nplicity Of tiie accused ih the s~cret ~ctivities. . - , ·. l'o establish the r. ecove.. y of arms and ammunitions on the basis of the confessionai statement; hiring of nat in Paresh Apartments, purchase of the premises. at Usman. Harun Society", stay of the accused at Aligarh, Ahmedabad and.. Madras, the air flights taken by the accused, role of the ~ccus1;d in the alleged conspiracy,"several witnesses were examined by the . prosecution.

-~- The Designated Judge convicted all the Appellants under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and sentenced them to suffer life imprisonment and -fine. The Designated Judge further convicted the Appellants under Section 120-B(I) of the Indian Penal Code and Section 3(3) of Terrorist and Disrur. tive Activities (Prevention) Act, 1987 read with Section 120-B of the Indian Penal Code. Accused No. I was additionally convicted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 5 of the Explosives Substances Act and 25 (IA) ofthe Arms Act. The Designated Judge acquitted 16 other accused persons giving them the benefit of doubt. Against the order of the Designated Judge, the Appellants preferred appeals before this Court and contended that:- LAL SINGH v. STATE OF GUJARAT 115 the arms and ammuilitions. were recovered from two different ~ ' . , premises.

The arms and ammunitions allegedly recovered from Paresh Apartments and Usman Harun Society were deposited without any justifiable r4! ason at the police headquarters and not ,at the police stll,tion where the FIR )vas registered. 8. The prosecu. ti 1ffected the social security,. peace and stability. It is common knowledge that such terrorist activities are carried out with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person concerned. Hence, in case of conspiracy and particularly such activities, better evidence than acts and stateplents including that of co-conspirators in pursuance of the conspiracy is hardly available. In such cases, 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 ofsuch a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue. 1176-C-DI LALSlNGHv. STATEOFGUJARAT I19 "Collector a/Customs, Madras & Ors. v. D. Bhoormall, (19741 2 SCC 544, referred to. 9. Accused No. 2 is a Pakistani"national. If a foreign national is found staying in the country without valid passport and. visa and his movements from one place to another with Accused No. 1 are established and from the premises occupied by Accused No. 1, large quantitieS of arms and ammunitions arc found, it would be prudent and ·reasonable to draw inference of criminal conspiracy. 1176-AI 10. 1. The concept of benefit of doubt is vague. Since years it has been considered that before granting benefit of doubt to the accused, doubt should be a reasonable one which occurs to a prudent man and not to a weak or unduly vacillating or confused mind.

It is true that under the existing jurisprudence in criminal matter, the Court has to proceed with presumption ~ of innocence, but at the same time, that presumption is to be judged on the basis of concepti. ons of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. 1177-H; 178-A-FI VijayeeSingh & Ors. v. State of UP.. 119901. 3 SCC 190 and Miller v. Minister of Pensions, 119471 2 All E. R. 372, referred to. 10. 2. In cases of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by the accused, it can be stated that presumption of innocence would not thereafter exist and it would be for the accused to explain its r. ossessiou or discovery or recovery and would depend upon facts of. each ca~e which are to be appreciated on the scales of common sense of a prudent man possessing capacity to "separate the chaff from grain": If it is established on record that Accused No.

20 was found in the COl)lpany of Accused No. Ofand Accu~ed No. 2 at Aligarh and that at Bombay also he had introduc;ed himself as a friend of Accused No. 1 and . . : Accus. ed No. 3 t0 his childhood friend, then it would be reasonable to infer that he was co-conspirl! tor and assisting Accused No. 1 and Accused No. 2, as stated in his confessional statement. With regard to the confessional statement of a co-accused, it has been held that it can be relied upon. 1178-G; 179-AI 11. 1. The evidence of PWS and PW12 clinchingly establishes that the Accused No; 1 along with other persons occupied the premises at Pares~ Apartments and Usman Harun Society from where large quantity of arms, ammunitions and explosive substances were found. The evidence of PW 43 who was knowing Accused No. I since years clearly establishes the presence .. 120 SUPRE;:ME COURT REPORTS . . . . [2001) I S. C. R. . ·• of Accused No. I, Accused No. 2 a·nd·Accused _No. 20 at tlie house of Accused No. I at Aligarh.

PW 86 also proves· beyo. nd reasonable doubt that Accused No. 2 stayed at Aligarh and joined computer course run by this witness. Similarly, PW 44 provesthe movcment·of Accused No. I frcim. Aligarh to Gwalior,. who visited him as. being friend of his brother. This clinching evidence leaves ilo doubt that Actus~d No. f and A~cuse~ No. 2, fo. f11rtherance of their conspiracy stayed at Aligarh· and were aided by Accused No. 20. ·' [157-F; 159-FI . . . · II. 2.. There can"not be any doubt that Acci1sed No. 3, Accused No. 4 and . . .. . Accused. No, 20 have co11spired along with Accused No. ·i and Accused No. 2 in their ~reparatory terrorist activities, Apart from cpnspiring, Accused No. 4 specifically accompanied _Accused No.. I·at Ahmedabad for the purpose of finding a. hideout. H~ also accompanied Accused No. I at Madras for sun·eying the Madras Stock Ex~~ang~ to find out ·a possibility of bomb blast · thue. If Accused No. 4 was not at all connected with Accused No.

I, there was no necessity of travelling together under fake names. For Accused Nos. 3 and 20, 'it is true thafapart from their confessional statements, the role proved agairist them i. n conspiring 1~·ith _Accused No. i is limited. However; Accused No. 3 had_ kept substantial arirount for carrying the expenditur~ incurred in these activities. F'rom his premises. a letter. written by him was found indicating his secret acth•ities. In this-~iew ofthe matter, it cannot be said that their conviction _under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Actis in any way illegal or erroneous. ·[I82-D-EI . . . . 11. 3. Considering the role played by Accused No. 3, Accused No. 4 and Accused·No. 20, the interest of fustice would be served iftheir sentence is ·reduce. d from life imprisonm~nt to rigornus imprisonment for IO years. 1182-FI CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal No. 219of1997. · Froin the Judgment and Order dated 8. 1.

97 of the Designated Court at · Ahmedabad in TADA case No. 2 of 1993. With Criminal Appeal Nos. 244 of 1997, 294 of 1997, 407-409/97 and 1409-1411 of 1999. Sushil Kumar, R. B. Mehrotra, P. P. Malhotra, R. K. Talwar, D. M. Sinha, Yash Pal Dhingra, Sanjay Jain, R. P. Wadhwani, Anis Ahmed Khan, W. A. LAL SINGH"· STATE OFGUJARAT [SHAH, J. J 121 Noomani, Z. K. Fazan, B. U. Burqi, Aili I Kumar Gupta-II, (Ms. K. Sarda Devi) (SCIS to let him complete the work unhindered. He collected copy of feasibility report from Mohd. Aslam of the construction work at Jet"Air Base, Avantipur and passed on these documents to Military Intelligence of Pakistan. On his return in April, 1991. Mohd. Ayub Dar @ Ashfaq introduced him to Tahir (accused no. 3) and Gullu, local muslims of Delhi. Tahir and Gullu were having · stayed in the hotel as Iqbal Ahmed and accused no. 3 Tahir Jamal as one of the persons who accompanied Iqbal Ahmed.

The handwriting expert PWl 16 has opined that signature on check-in and check-out entries Ex. 240 made in the register of hotel in the name of Iqbal Ahmed bear his signature. From the prosecution version, it appears that the witness has committed mistake in identifying accused no. 3 as one of the persons who accompanied Iqbal -... Ahmed as it is not the prosecution story that A3 Tahir Jamal came to Ahmedabad alorigwith accused no. I. PW77 Raghuvirchandra Amamath Laher (Ex. 469), who was General Manager of hotel Grant, Bombay firstly stated about maintaining ofrecord by the hotel and about the duty of the receptionist. On seeing the entry No. 5950 I dt. 28. 2. 1992 he stated about the entry of one guest namely Mr. H. lqbala resident of Aligarh, in hotel Grant. He further stated that H. Iqbal left the hotel on 29. 2. 1992 at 12 noon. He has further stated about Ex. 470, which is receipt memo. By this receipt memo, the register containing the entry made '~ in the name of H.

Iqbal was taken away by the CBI Officer on 16. 8. 1992. PW88 Sureshbhai Ramnikhbhai Master Ex. 515 receptionist of hotel Grant, Bombay, on seeing the entry no. 59501, Ex. 516 made in the guest register stated that on 28. 2. 1992 one guest Mohd. Ikbal arrived at 14. 00 hrs. He has stated that -Iin the guest register, name M. Ikbal is mentioned and that he has come from Aligarh. He left the hotel on the next day i. e. on 29. 2. 1992 at 12 noon. He has identified A1 as M. lkbal. Even though the opinion of the handwriting expert-PWl 16 is not positive yet there is no reason to disbelieve the evidence ofPW88. PW79 Vishwanathan Ex. 479 Receptionist of Hotel New Woodland, Madras stated about visit of AI and A4 in their hotel under the name of Mohd. S. A. and Kishore Kumar on 2. 7. 1992 at 6. 00 p. m. He further stated that both the persons left the hotel on 4. 7. 1992. On seeing the entries Ex. 480 made on page no.

131 of arrival register of the hotel, he stated that both the above persons were allotted room nos. 1351 and 1352 respectively. Both the entries bear signatures of both the customers. He has identified accused no. I and 4 as the persons who stayed in the hotel\ He stated that accused no. 4 is the same person who had written entries in th~ arrival register of the hotel. PW116 has given positive opinion (Q. 6 and Q. 7) pertaining to entries, Ex. 480, made in the arrival-departure register of the hotel, which were written by Mohd. S. A. , who was identified as accused no. 4. To prove the visit of A1 and A4 at Madras, the prosecution has further examined PW97 Shrinivas Samugham, who was Security Guard at Stock Exchange Building, Madras between December, 1990 to September, 1993. He stated that on 3. 7. 1992, he was on duty at visitors gallery on 4th floor of the building. On that day, two persons came to the visitors gallery and desired to go inside.

He instructed them to obtain passes from 3rd floor. Then the said persons obtained passes and went inside. After coming out from the visitors gallery, they enquired about drinking water. He told them that water is available ___,, on 3rd floor in staff lunch room. Thereafter, they went away. One of them was looking like Punjabi and was having turban and other was having beard and moustaches. He has identified AI as that Punjabi man and A4 as Muslim like person. With regard to identification of A I and A4 much reliance cannot be placed because of time lag. PW78 Silas Benjamin Ex. 47 t was working as Receptionist-cum- Cashier of Hotel Heritage, Bombay in July, 1992. On seeing the entry at page no. 637 , of the guest book of hotel Heritage, he stated that one guest in the name of Kishor Pilot arrived in the hotel on 4. 7. 1992 at 8. 30 a. m. and he was allotted room no. 404. The entries in the guests register were filled in by the guest and he was expected to check out on 6. 7. 1992.

However, he checked out on 5. 7. 1992 at 11. 00 a. m. The guest registration card no. 637 mark 86/44 is Ex. 472. The witness was not in a position to identify Kishor Pilot. In our view, from the above said evidence, it is quite clear that AI and A4 stayed together in different hotels at Ahmedabad and Madras. (e) Evidence with regard to record of Air Flights against Al, A2 andA4:- PW68 Shahjad Ex. 433 is a Station Manager for Air Lanka (Airways) at Bombay Airport. On the basis of the manifest Ex. 434 of Karachi Colombo (Via Bombay) flight No. UL-182 dated 11. 12. 1991, he has stated that two passengers had travelled in that flight under the names of Iqbal C. M. and Ahmad M. PW69 Sudhakar Nivrutti Tilekar (Ex. 436) is sub-inspector in the State of Maharashtra. In the year 1991-92 he was in the Special Branch-II {Immigration) in the office of Commissioner of Bombay and was posted at Sahara International Airport. He has deposed about the procedure of routine check up of passengers.

I-le has proved Ex. 336, the visa application form in the name of ... ,. _ Ch. Mohd. Iqbal ofdated 26. 11. 1992. PW70 Suresh Bapurao Gayakwad, Ex. 443, Asstt. Police Inspector Police Station Matunga stated that in October, 1991 he was working as Sub Inspector-cum-Immigration Officer at Sahara International Airport, Bombay. He has proved the visa form and TRP of Manzoor Ahmad (accused no. 2) issued on 8. 10. 1991. He has produced Ex. 338, which is visa application and bears his stamp and signature; Ex. 444 TRP and Ex. 445 is disembarcation card. Ex. 445 card was tendered before him by the passenger and he put his stamps on the same. He had also put the R. P. No. 36740 dated 8. 10. 1991 on the card. PW82 Shyam Prahlad Huilgol, Controller Reservation, Bombay has been examined by the prosecution to prove that passengers Chaudhari lkbal and Manzoor Ahmad had travelled from Bombay to Calcutta by flight No. IC-175 (Bombay-Calcutta) dated 12. 12. 1991.

He was controller of that flight on the relevant day. He has proved the manifest Ex. 496 and that Chaudhari Ikbal and Manzoor Ahmad had travelled at SI. Nos. 62 and 35 respectively. PW7 I Mrs. Pushpa Shantaram, a Senior Traffic Assistant of Indian Air Lines has stated that she had prepared passengers manifest, Ex. 452 of flight No. IC-133 (Bombay-Ahmedabad-lndore-Bhopal-Bombay) and that two passengers named Mohd. S. (A4) and lkbal M (Al) had travelled from Bombay to Ahmedabad by that flight on 29. 2. 1992. Similarly, PW35 Nikhil Mahendrakumar Bhavsar, Traffic Assistant of Indian Airlines, had made the manifest of passengers of Flight No. IC604 (Ahmedabad-Bombay) on 3. 3. 1992 and has proved travelling of one person named Mohd. S. (A4) in this flight from Ahmedabad to Bombay. PW37 Jagdishbhai Karsanbhai Baria, Sr. Traffic Assistant of Indian Airlines proved the entries at page no. 3 of passenger manifesto of flight no. IC614 (Ahmedabad-Bombay) dated 30. 6. 92 stating the names of Mr.

K. Kumar and Mr. M. Hussain in the manifest. PW72 Shaikhmohmad who at the relevant time was working as Senior Traffic Asstt. , Santacruz has stated from the Manifest of Passengers for IC-613 that on I. 7. 1992-one passenger in the name of Hussain M had travelled and was having two way ticket i. e. Ahmedabad-Bombay Sector. PW73 Mrs. Vrinda Jairam Shetti, who at the relevant time was working as Traffic Assistant, LALSINGHv. STATEOFGUJARAT[SHAH,J. ] 165 Santacruz produced Passenger Manifest of JC-171 Bombay Madras Sector and stated the travelling of one passenger in the name of Kumar K. from Bombay to Madras in the said flight on 2nd July, 1992. Aforesaid evidence lends assurance to the confessional statements of AI, A2 and A4 for their travel from one place to another in different fake names. (t) Evidence against A2, Mohd. Sharief:- __,,. PW! 36 Dharampal Singh, who was Dy. S. P. CBI in SIC Branch, New Delhi at the relevant time, stated that he took over the investigation of RC. 6.

(S)/92 on 11. 11. 1992. During investigation, he arrested accused Mohd. Sharief on 19. 6. 1993, who was initially arrested by Delhi Police in some other crime. He applied for the custody and remand of accused Mohd. Sharief, which was allowed by the Metropolitan Magistrate, Delhi. During -4,_ interrogation, accused Mohd. Sharief expressed his wish to give confessional statement voluntarily and, therefore, he was produced before P. C. Sharma, SP, CBI, SIC II, New Delhi on 8. 7. 1993 and his ccnfessional statement was recorded. A2 has confessed that he is a Pakistani national and ISi agent. He visited India several times in different fake names. He also disclosed that the entire conspiracy was hatched by him alongwith AI Lal Singh and others as narrated earlier. He inter alia stated that he was arrested by Delhi Police on 18th June, ·- _ _:J; 1993, when he went to Railway Station for going to Gorakhpur.

His statement was recorded after prolonged custody at Lal Qilla and constant physical and mental torture. As per his say, firstly he visited India on 20th January, 1991 on a valid passport in his genuine name. After reaching Delhi, he stayed at Qureshi Guest House. Thereafter, he returned to Pakistan in February, 1991. He again entered into India on 12th March, 1991 through Attari Border on new passport. Again he stayed at Qureshi Guest House. He returned in April, 1991. Pakistan Ml gave him training in three phases. Thereafter, he came to India on 8th October, 1991 by PIA flight under the assumed name of Manzoor Ahmed and on a new passport. At Bombay he stayed in Hotel Kalpana at Grant road. Thereafter, he went to Aligarh. He returned back to Pakistan on 8th November, 1991. Again he along with Lal Singh left Pakistan for going to India on 11th December, 1991 by Sri Lankan Flight.

After reaching Bombay, they went to Calcutta by flight and subsequently went to Aligarh on 14th December, 1991 by train. Finally, he came to India on 7. 6. 1993. On 9th June, 1993 he reached New Delhi. When he was leaving for Nepal, he was arrested on 18th June, 1993. To prove the entry of A2 Mohd. Sharief in India in the month of March, I991, the prosecution has examined PW52, Ex. 334 Mr. Surendrasingh Kartarsingh Kadian, who was serving as Upper Division Clerk in the Ministry of External Affairs of Central Government. He has produced visa application Ex. 340 and carbon copy Ex. 341 dated 5. 3. 1991 having ·photograph of A2 Mohd. Sharief. There is no reason not to accept the aforesaid original documents produced on record. We would only mention that the learned counsel for the appellant has contended that photograph on the said applications can be substituted and that there is no evidence that the said photographs are of A2.

In our view, this submission is without any substance because it is difficult to believe that official record can be tampered by substituting the photograph of A2 on the original visa application. Jn any case, for that purpose there is no basis. Secondly, with regard to the photograph accused has not disputed and on behalf of accused no such suggestion was made to the witness. The prosecution has also examined PW60 Ex. 379 Navalkishore Jayadayal Asstt. PSI, Delhi CID Pak Section, who has stated that he was maintaining ).. the register for arrival and departure of persons who were coming from Pakistan. Entry No. 833, Ex. 380 in the said register pertains to Mohd. Shanef son of Umardin which is in hand writing of SI Bhup Singh. This entry Ex. 380 corroborates Ex. 340 and Ex. 341. It also shows that Mohd. Sharief was staying in Qureshi Guest House. For proving the stay at the Qureshi Guest House, the prosecution has examined PW5 l, Ex.

327 Dilavarhussain Sardarali, who "----/ stated that he joined the service at Qureshi Guest House situated in Bazar Chitli Kabar, Jama Masjid, Delhi, as Manager-cum-Receptionist from 1990 till 1992. He stated that if a passenger is a foreigner, the entries are required to be made in foreigners, register and if foreigner is a Pakistani national, hotel has to submit one C form containing necessary information to CID Pak Section, New Delhi. He further stated that in the said Guest House, most of the foreigners were Pakistani nationals and some of them were Bangladeshi. ~- On reception counter, they were verifying three things (1) passport, and the necessary endorsements made on it, (2) temporary permit issued in small slip and (3) visa document. They were further verifying as to whether the initial visa was for Delhi and if the visa or first permit is of Delhi, only then they were allowing the passengers to stay in their guest house. This witness has established the stay of A2, Mohd.

Sharief at Qureshi Guest House, who came to Guest House on 16. 3. 1991 and left on 5. 4. 1991. Thereafter, Mohd. Sharief ~ again visited the Guest House on I0. 4. 1991 and left on 15. 4. 1991. He again arrived at Guest House on 20. 4. 1991 from Madras and left on 21. 4. 1991. Entries in this regard were made in the register of Guest House. He has further stated about visit of Furkan Ahmad son of Mohmad Ismail and Khurshidabegam, the alleged relatives of Mohd. Sharief, to the Guest House on 26. 3. 1991 and of ... _,. Mohd. Ashfak on 21. 4. 1991. On that day, Mohd. Sharief was not having money with him. Mohd. Ashfak assured the Guest House officials including PWS I that he will make the payment within couple of days. Thereafter, Mohd. Ashfak was arrested and the amount due to Mohd. Sharief was deducted from his (PW51 's) salary by the owner of the Guest House. He has identified A2 as Mohd. Sharief, who had stayed in his guest house.

Further, as stated earlier, his stay at Aligarh is also established by the evidence of Major Singh PW 43 and PW 86 who was running a computer course at Aligarh. (g) Evidence against A3, Tahir Jamal:- Tahir Jamal, A3 in his confessional statement has stated that he worked in SIMI as President, Secretary and Treasurer in different periods. He has stated that after his retirement from SIMI, when he was in Lahore, he was introduced with Amir-ul-Azim, Press Secretary ofJamait-e-lslam, Pakistan with whom he had discussion about political situation in India and Pakistan, particularly problems of Punjab and Kashmir where terrorism continued. Next day he was introduced with Iqbal who was speaking in Punjabi. His photograph was shown to him and he identified him as the same person who had been introduced to him in Lahore. Amir-ul-Azim wanted him to help him in India for hiring a house for him. He went to Karachi from Lahore and then came to Bombay in December 1991 for Conference of SIMI.

He went to see off Amir-ul-Azim at Delhi Airport for Karachi. While en-route, Amir-ul-Azim asked him to help in publicity of cause of Kashmir habitants and gave him a packet of money saying that it would be useful in the proposed activity. The packet contained 1700 pounds which he took and came back home. Then he went to his native place, village Liandih in January I992 and came back in the end of the month. After return, his brother Jaffar Jamal told him that one Iqbal had tried to contact him repeatedly from Aligarh. He has stated that he called him at his residence where he came with one more person called Swab. Then Iqbal requested him to hire a house at Ahmedabad for safe keeping of weapons, explosives smuggled into India from Pakistan for terrorist activities. He also told him that he would transport the weapons to Punjab and Kashmir in trucks. Iqbal also stated that this matter should be kept secret. Next day he shifted Iqbal to Hotel Grant and went to the house of Saquib.

He told Saquib about Iqbal and his requirement of a house at Ahmedabad. He brought the air tickets for Iqbal and Saquib. After about one week, Amir-ul-Azim telephoned him that he was sending Rs. 5 lakhs for a house at a place near Paydhoni Police Station. He reached the place and collected Rs. 5,80,0_00. Next day he went and met Saquib and informed him that money had been received and gave him Rs. I lakh. He spent some amount and Rs. 2, 15,000 was kept in the • almirah. Then he went to his village and c?. me to Bombay after Ramzan Id and again went to his village for some marriage. From there he wrote a Jetter to his brother Jaffar through Asif and sent the key of the almirah saying that out of the money in ahnirah Rs. 1,00,000 should be given to Saquib and the balance may be kept back. It 1vas also conveyed that there were 1700 pounds in the almirah which should be kept safe. Thereafter, he was arrested by the police from his village.

His statement gives the account of income and expenditure incurred in the activities The fact of recovery of 1700 pounds and substantial cash is mentioned in the statement. The opinion of hand writing expert PW 116 as regards Ex. 602 (Q. 5) and 603 (Ex. 6) is positive. PW83 Gulamhasa Habibulla Ahengar was working as a Branch Manager of J&K Bank at Ahmedabad and in his presence the specimen hand writings of A3 were taken. He has identified A3 as the person who had executed the specimen writings in his presence at Karanj Bhavan, Ahmedabad. PW135 Jafar Jamal Ex. 676 is brother of A3 Tahir Jamal and a resident of Millatnagar, Andheri (West), Bombay. His native village ls Luniadih of District Azamgarh, UP. He came to Bombay in 1982 and shifted to Millatnagar, Andheri (West). It is his say that he was staying in the flat belonging to his maternal uncle's son. His maternal uncle was also having another flat. His brother Tahir Jamal was residing with his maternal uncle.

For sometime, Tahir had gone to Delhi but he was not knowing that for what reason he had gone there. He has stated that his brother Tahir Jamal was connected with SIMI and was Secretary of SIMI at Delhi. He further gave some names of his brothers companions like Salim Khan, Ibrahim and Saquib Nachan (A4). In August, 1992 he came to know about arrest of his brother Tahir Jamal. He has stated that on 12. 8. 1992 the CBI Officers raided their house after the arrest of Tahir and recovered some papers and diaries relating to Tahir. With regard to the seized documents, he admitted his signatures on Exhibits 601, 602 and 603, which also bear the signatures ofAriff and Ansar. In the cross-examination by Public Prosecutor, he denied of having produced Rs. 90,000 in Indian Currency and 1700 pounds before CBI Inspector. It is his say that he was detained and interrogated by the police at Santacruz police station, Bombay and at Ahmedabad for some days in connection with this case.

PW127 Harbhajanram Shantaram, Dy. S. P. -CBI, S. l. C. II Branch, New ~ Delhi, stated that on 14th August, 1992 he took over the investigation of RC No. 5-S/92 from Mr. M. K. Zha, Dy. S. P. , who was camping at Bombay. He '\ further took over the custody of five accused including accused no. I of this - case, who was in custody at Santacruz police station. On 21. 8. 1992 he recovered papers relating to sale of vehicle No. MH. 01. 8942 from Daljit Singh Shetty (PW67). On 26. 8. 1992 he, accompanied with Inspector Mr. J. C. Prabhakar, carried out search of the house of Jafar Jamal for recovery of certain amount. The search was carried out under the instructions of DIG Mr. M. L. Sharma. Jafar Jamal requested not to carry out search and agreed to handover the amount and other incriminating documents. Jafar Jamal took out Rs. 90,000 and 1700 pounds and some pieces of torn letters.

Thereafter, Jafar accompanied him to Santacruz police station, where he handed over the amount, torn pieces of letters and two pieces of paper by affixing the same on a paper. Pieces of papers were written in Urdu Script. Jafar Jamal read over those papers and ~. ', Sub-Inspector of Bombay police wrote the same in Hindi. A production memo Ex. 60 I was prepared for pieces of papers and currency notes, which is signed by Jafar Jamal and two witnesses namely Mohd. Aarif and Ansar Ahmad. He and Inspector J. C. Prabhakar also put their signatures on the same. He further stated that torn pieces of letter affixed on a plain paper are Ex. 602. The two pieces of paper are Ex. 603. He further stated that he formally arrested Lal - . __,,, Singh in this case i. e. , RC. 6-S/92. He has denied the suggestion that during police remand of Lal Singh any third degree method was adopted.

Rather, accused Lal Singh had tried to cut his tongue by his own teeth and tried to hit his head with iron bars of lock up room. Doctor was brought for treatment of Lal Singh and two CBI officers were posted in the lock up room of Lal Singh for his safety. According to the prosecution, Tahir Jamal A3 was mainly dealing in financial transactions and as contact point. The amount of Rs. 90,000 and "" 1700 pounds were recovered from his house. The prosecution has further led the evidence that on 12th August, 1992 Flat No. 6/208, Almadina Apartments was raided by CBI officers and from that place they recovered some papers, diaries and the documents written by A3 Tahir Jamal. The relevant document upon which reliance is placed to connect A3 is Ex. 602. It is in the form of -it- letter written in Urdu addressed to his brother Jafar Jamal. This letter inter alia mentions that work is in progress and that they were facing money crises.

It is also written that witness should not pay to Saquib from the fund of karobari. Under torn pieces of letter, it is mentioned that one envelope may contain 18 to 1900 pounds, which is an exclusive property of one gentleman, ·A only his exclusive property. PW87 Syed Mcihd. Azim Varasi, a totally independent witness also establishes that A3 was connected with AI and A20. He has also deposed that A20 had asked him to contact his friend Tahir Jamal, A3 and thereafter they met at Bombay Central Railway Station. Shoaib Mukhtiar, A20 introduced AI Iqbal and A3 Tahir Jamal to him as his friends. (h) Evidence against A4, Mohd. Saquib Nachan:- He has stated in his confessional statement that in 1981 he joined SIMI ·"! '-and during his association with SIMI he came in contact with Tahir Jamal, A3. During 1990, he visited Pakistan twice.

His real purpose was to meet Salahuddin Sudani and Abdur-Rahim-Rasool Sayyef to discuss ways and means to train Muslim youths in arms, ammunitions and explosives. Till 1991 he was sending Sikh youths to Pakistan for military training. Throughout this period, he was in touch with A3. In December 1991 he came to Bombay to attend SIMI }. _ Conference where he met Amir-ul-Azim along with Bashir and Tahir. Azim told that Iqbal would meet them and asked them to arrange hideouts for him at Ahmedabad so that the weapons which were to be smuggled from Pakistan could be safely stored. In February 1992, he had gone to Masina Hospital, Byculla where Tahir Jamal-A3 came looking for him. He told him that Iqbal had come to Bombay and met him. He was supposed to go to Ahmedabad and that he should accompany him. He met Iqbal at Grant Hotel where he was staying and discussed Ahmedabad plans. On 29. 2. 92, he and Iqbal left for Ahmedabad.

On reaching there, they stayed at Sidhdhartha Hotel in separate rooms booked in their names. On 3. 3. 92, Iqbal asked for change of hotel, so they shifted to Hotel Butterfly where Iqbal took one room and he went to Bombay. At the end of June 1992, Iqbal arrived at Hotel Balwas, Bombay. His photograph was shown to him and he identified that photo as that of Iqbal and he put his initials on it also. He met Iqbal who asked him to look for a person at Madras who can help him in blowing up the Madras Stock Exchange. On 2. 7. 1992, he along with Bashir and Iqbal left for Madras by I. A. Flight. He and Iqbal stayed in Woodland Hotel. Next day they all surveyed the Stock - Exchange Building and Iqbal told them in detail about his plan of blowing it up by means of a remote controlled bomb. Since, he was not feeling well, he expressed a desire to go to Bombay.

Iqbal agreed to come with him and told him that whenever he has to contact him, he should ring up one Sharma in USA introducing himself as Raveesh. After some time he came to learn about Iqbals arrest in Bombay through newspapers. Apprehending. his arrest, he absconded till he was arrested. ,,_ Prosecution has established that A4 accompanied AI at Ahmedabad ;; and stayed along with him in hotels, that too in different fake names. '\: Prosecution has also led evidence of his travels from Bombay to Ahmedabad and Ahmedabad to Bombay lending assurance to his confessional statement that he travelled by air from Bombay to Ahmedabad and from Ahmedabad to Bombay by producing passengers manifests. Flight coupon Ex. 450 and 'B Entry No. 1567 in the guest register of hotel Sidhdhartha at Ahmedabad in the name of Mohd. S. have been proved beyond reasonable doubt by the prosecution in support of their case. Further, prosecution has produced evidence regarding their stay at Ahmedabad, i. e.

registers and bill books of various hotels signed by AI and A4. By the evidence of PW79 Vishwanathan, Receptionist of Hotel New Woodland, Madras, prosecution has established that A I and A4 stayed in that Hotel. The entries of register Exs. 315 and 317 (mark Q-2 and Q-3) were sent to the handwriting expert. PW75, the handwriting expert has proved his signatures. The entries Ex. 315 and Ex. 317 ..... , also stand proved by PWI 16. Further, AI and A4 had travelled in fake names and came from Ahmedabad on 29. 2. 1992. If A4 was not at all connected with AI there was no necessity of travelling together in fake names. In travel manifest Ex. 452, the name which is mentioned as Mohd. S. is proved by Ex. 450. (i) Evidence against A20, Shoaib Mukhtiar:- -. + A20 Shoaib Mukhtiar in his confessional statement has stated that he was a resident of Aligarh. In the month of February, 1991 Barkat Ahsani came to Aligarh and opened a shop known as Ahsani Colour Lab. He was friendly to Mohd.

Mujib Shamshi and Mohd. Habib Shamshi who were residents of Chowk Sheikh Dawood in Aligarh. Through these two persons he came to know Barkat Ahsani. Before opening shop in Aligarh, Barkat Ahsani was doing business in Srinagar. He shifted his business to Aligarh because of disturbances in Srinagar. He started visiting the shop of Barkat Ahsani alongwith his friends Mujib and Habib. He was introduced to Javed Yousuf by Barkat as his friend. Javed had also opened a shop. He had come to India to create a situation which could destabilize the Govt of India in the States of Punjab and Jammu & Kashmir. Sometime in the third week of December 1991, when he had gone to Barkat Ahsanis house, he found two + persons sitting with Barkat Ahsani. They were introduced to him as Javed and Iqbal, businessmen from Pathankot. After 2/3 days he took them to their house. Then they started meeting frequently and he came to know that Javed's real name was Mohd.

Shariefand that Iqbal's real name was Lal Singh and they were the same persons who had formed K-2 for the purpose of ::_ destabilizing Govt. of India particularly in the States of J & K and Punjab. -/ In the month of September/October 1991, in the shop of Barkat Ahsani, he was introduced to Sajjad who talked about the atrocities on Muslims in India. He has again stated that in the house of Javed Yousuf, they agreed to procure weapons for killing BJP/Hindu leaders/Police Officials in India so that they may strike terror amongst the people and alienate Muslims from Hindu community. Knowing their terrorist activities, on their request, sometime in the end of December 1991 or in the beginning of Jan. 1992 he had arranged accommodation for Lal Singh and Mohd. Sharief in the house of Amir Hassan at New Sir Syed Nagar, Aligarh. In 1992, he had arranged for another accommodation for them as the earlier was not found to be good by them. He stated that in the house of Lal Singh and Mohd.

Sharief. they made plan to obtain fire arms for committing terrorist activities including killing of BJP leaders, Police Officials: to locate houses at differen"t places in India for J.. concealing weapons, for increasing terrorist activities in India and to recruit young beys for going to Pakistan for training in handling of weapons etc. In the last week of January 1992 or beginning of February 1992, Lal Singh, Mohd. Sharief and Salim informed him that large consignment of weapons was to be collected from Jodhpur and for collecting the weapons a truck was immediately required. Lal Singh gave him Rs. I0,000 and requested to arrange a truck for the purpose. Despite his efforts he could not arrange for a truck. On 27. 2. 92, he and Lal Singh left Aligarh by Gomti Express for Delhi. Thereafter, Mohd. Sharief and Javed Yousuf met him. Mohd. Sharief gave them two tickets for Bombay and in the evening of 27. 2. 92, they left New Delhi by Rajdhani Express for Bombay. On 28. 2.

92, they reached Bombay Central Railway Station and hired a taxi and went to Tahir Jamal's house from where he contacted Mohd. Azim Varasi on telephone who was working in Tarapore Atomic Power Project as Scientific Officer. Azim Varasi met them at Bombay Central Railway Station. There Lal Singh gave him a ticket for Aligarh and told him that Shafiq @ Deepak would be coming to Bombay and that he should go to Aligarh and help Mohd. Sharief and Deepak to look after their interests in Aligarh. On 2. 3. 92, he reached Aligarh where he met Mohd. Sharief. It is stated by A20 that on JO/I 1. 3. 92 he and Deepak came to Delhi by train and proceeded to Bombay by the evening flight. He requested Azim Varasi to arrange one room flat for Shafiq at Bombay. For one week, they stayed at the ~ house of Varasi. Varasi arranged for a room (flat) through a property dealer at monthly rent of Rs. 1100. They left Bombay on 17/18. 3. 92.

In April 1992, he received a call from Lal Singh at his residence that he wanted to talk to Mohd. Sharief and Javed Yousuf next day. He called them the next day at his residence where Lal Singh informed them that the consignment of arms, ammunitions and explosives would be arriving Ahmedabad shortly and that they should be ready for receiving the same and also to strike at the targets. On 9. 4. 92, he and Mohd. Sharief left for Muradabad enroute to Nepal after getting the news of arrest of Javed Yousuf. On 14. 4. 92, they reached Kathmandu and stayed in Hotel Ice Land. From Kathmandu he returned to Belia on 17. 4. 92 and stayed for 2 weeks. From there he went to Pune. During his stay at Pune, he got financial help from Kamal Mehboob and Anand Pratap Singh. From Pune, he went to Kathmandu sometimes in the end of March 1993. From Kathmandu he reached Gorakhpur on 15. 1. 94 to his relations house, i. e. Iqbal Ahmed, Advocate and stayed till 17. 1. 94.

He was arrested by Gorakhpur Police on 18. 1. 1994. In his confessional statement, he has stated that he was aware that AI was interested in the creation of Khalistan and A2, who is Pakistani national, was interested in separation of Kashmir and that AI and A2 were interested in transporting fire-arms and explosives. His presence at the house of AI in company of A2 at Aligarh and his meeting with Al and A3 at Bombay is established by leading evidence of independent witnesses. PW43 Major Singh has specifically stated that along with AI and A2, accused No. 20 was also found at Aligarh at the house of Lal Singh. PW87 Sayeed Mohd. Azim Varasi, a Scientific Officer in Tarapur Power Project Group with Nuclear Power Project Corporation of India at Bombay has stated that he was knowing Shoaib Mukhtiar-A20, who is resident of Aligarh. He became friend ofShoaib Mukhtiar at Aligarh and during his study of B. Sc. Engineering, he took help from Shoaib Mukthiyar. In 1991, he shifted to Bombay.

Whenever he used to visit Aligarh, he used to meet Shoaib. In December, 1991 he received a call from Shoaib in his office from Bombay asking him to contact his friend, Tahir Jamal, at Millatnagar. But since it was not possible for him to contact Tahir Jamal A3, they decided to meet at Bombay Central Railway Station. Shoaib Mukthiyar was there alongwith his friends. Shoaib introduced Iqbal-A I and Tahir Jamal-A3 as his friends. Thereafter, he (PW87) and Shoaib went to meet M. N. Ansari, uncle of Shoaib and his two friends went away at some unknown place. They took dinner there. He has further stated that ~ he met Shoaib in January, 1992 and thereafter, Shoaib met him again in the month of March, 1992 alongwith his friend Shafiq Ahmad. They stayed with , . him for about five to six days. They were having samples of locks etc. with them for business purpose. Shoaib and Shafiq were in need of one room house. He arranged one house for them through one broker against payment c. of Rs.

16000 on account of advance rent and brokerage. After some days, Shoaib made call to him and asked to cancel the said rent deal. He has further identified AI as Iqbal and and A3 as Tahir Jamal. It is to be noted that the witness has specifically stated that AI and A3 were introduced by A20 as his friends. IN SUCH CASES, TO WHAT EXTENT BURDEN OF PROOF IS ON PROSECUTION? : In the light of the aforesaid evidence led by the prosecution next question- for consideration is whether the accused have been rightly convicted. At this stage. we would reiterate submissions of Mr. Sushil Kumar, learned senior counsel for AI and A4, that AI Lal Singh was arrested on 16. 7. 1992 by PW56 in CR 423/92 of Santacruz Police Station but the case was registered prior to his arrest. AI was interrogated by PW9 at Santacruz Police Station on 22. 7. 1997 and his statement was also recorded but no FIR was registered. AI made a confession to PW 128 on 12. 9. 1992 and report under Section 169 Cr.

PC was submitted on I0. 12. 1992 in RC 5 but there is no evidence on record of the same. He was never told that his confession may be used against him in TADA Case. Further, confessional statement is not recorded in CR No. 423/92. He has not stated about his visiting Madras Stock Exchange and about his getting the places with the help of A4, where arms were recovered. The submission of learned counsel that AI has not stated in his confessional statement about his visit at Madras after verification of the said confessional statement, appears to be incorrect because AI has specifically stated that he along with Raveesh and his friend went to Madras by flight and stayed at different roon! > in hotel Woodland. They came back to Bombay on4. 7. 1992 by flight. Further, we would state that presuming that there is some irregularity with regard to the recording of FIR it would not vitiate recording of his confessional statement. The report under Section 169 Cr. PC submitted in RC 5/92 on 10.

12. 1992 has no bearing on the present case. Further, for this purpose there is evidence of PW56 Shamrav Baburav Jedhe, Sr. P. I. Crime Branch, CID, Greater Bombay, who stated that at the relevant time he was posted as Police Inspector in Anti Terrorist Squad, North Region, Bombay. In the year 1985, there was a bomb blast of Kanishka Air Craft in Canada and Lal Singh was wanted in that case and intelligency had provided photographs and other information of Lal Singh to them. On 15. 7. 1992, Mr. A. A. Khan, J- Addi. P. C. _directed him to arrest Lal Singh, who was reported to be coming '¥ at Dadar Railway Station by Dadar-Amritsar Express on 16. 7. 1992 at 5. 00 a. m. After due preparation, they apprehended Lal Singh outside Dadar Railway Station. Lal Singh told his name as Keshore Kumar. In the presence of two panchas namely Mohd. lmran and Stivan Fransis, he took personal search of Lal Singh and prepared panchnama Ex. 350, which bears his signature and signature of both the panchas.

The driving licence found in the pocket of Lal Singh, which was issued by RTO, Ahmedabad in the name of Keshore Kumar was also seized, which is Ex. 351. The visiting card of Hotel Samrat, Ahmedabad found in the purse of Lal Singh is Ex. 352. He further stated that he recovered Rs. 30664 and 200 American dollars from the possession of Lal Singh. He has identified AI Lal Singh as the person who was arrested by him. Thereafter, Lal Singh was taken to Santacruz Police Station and he was arrested for the offence C. R. No. 423/92, which was registered prior to the arrest of Lal Singh as he was wanted in that case. Further, PW124 Mith ileshkumar Avadhnarayan Zha, who at the relevant time was Dy. S. P. C. B. I. New Delhi stated that the investigations of RC. 5. S/92 and of the instant case were being conducted simultaneously. In any case, if these are considered as irregularities, the same are of no significance as they would not in any way affect the prosecution case.

As stated earlier, qua A I the evidence, apart from his confessional statement, is in abundance. In short, during his interrogation it was revealed that in two premises at Ahmedabad, he had kept large quantity of arms, ammunitions and explosive substances. The evidence on this aspect is that of police officers with regard to the raid and seizure. Apart from the evidence of police officers including SP A. K. R. Surolia (PWI03) who conducted the raid, with regard to the stay of A I in the said premises, there is evidence of independent panchas which supports the prosecution version. For hiring of the premises C-33, Paresh Apartments and for purchasing of the house 4A, Usman Harun Society, Ahmedabad, there is unimpeachable evidence on record.

Further, prosecution has led evidence with regard to th cases, 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. For assessing evidence in such cases, this Court in Collector of Customs, Madras & Others v. D. Bhoormall, [1974] 2 SCC 544 dealing with smuggling activities .... ,.. __ and the penalty proceedings under Section I67 of the Sea C!.! stoms Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus: 30.

that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it all exactness is a fake. E1 Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a- day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case. 3I. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the LAL SINGH v. STATE OF GUJARAT [SHAH,l] 177 evidence is to be considered to use the words of lord Mansfield in A.

Blaich v. Archar, (1774) I Cowp 63 at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department t9 unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Depai1ment altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that bui·den to discharge which very slight evidence may suffice. 37. For weighing evidence and drawing inferences from it, said Birch, J in Queen v. Madhub Chander, ( 1873) 21 WR Cr. 13 at p. 19 there can be no canon.

Each case presents its own peculiarities and in each common sense and shrewdness must be brought tg bear upon the facts elicited. Learned senior counsel Mr. i<.. T. S. Tutsi appearing for A20, submitted that the trial court has given the benefit of doubt to 16 co-accused despite their confessional statements and there was no reason for the Court not to give benefit of doubt to A20. He submitted that confessional statement of A20 was recorded under coercion and torture and that confessional statement is having serious discrepancies. He also pointed out that presuming that A20 was found in the company of AI at Aligarh or at Bombay, this would not indicate that he was involved in any criminal conspiracy with Al or A2. It is his contention that confession of other co- accused cannot be used against the appellant. We have already dealt with confessional statement in earlier paragraphs and, therefore, we do not want to repeat the same.

Confessional statements are held to be admissible in evidence. With regard to the confessional statement of co-accused, it has been held that it can be relied upon. The next question would be whether benefit of doubt ought to have been given to A20. It is well understood that concept of benefit of doubt is vague. Since years it has been considered that before granting benefit of doubt to the accused, doubt should be reasonable one which occurs to a prudent man and not to a weak or unduly vacillating or confused mind. On this point in Vijayee Singh I and Others v. Stale ofU. P. , [1990] 3 SCC 190 this Court succinctly observed thus:- "'There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind.

It must be the doubt of the prudent man who is assumed to possess the capacity of separate the chaff from the grain. It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind. In that case, the Court also referred to the following observations in Miller v. Minister ofPensions, (1947) 2 All E. R. 372 by Lord Denning, J. : "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable," the case is proved beyond reasonable doubt. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land.

In such type ofterrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that presumption of innocence would not thereafter exist and it would be for -4 the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to separate the chaff from grain. In such cases, as stated by Lord Denning J. , law would fail to LAL SINGH v. ST1}TE OF GtJJARAT [SHAH, . I. ) 179 _, protect the· community if it admitted fanciful possibilities to deflect the course of justice.

If it is established on record that A20 was found in company of \ A1 and A2 at Aligarh and that at Bombay also he had introduced himself as friend of AI and A3 to PW87, who is his childhood friend, then it wou)d be reasonable to infer that he was co-cohspirator and assisting AI and A2, as stated in his confessional statenient The learned senior counsel Mr. Sushi! Kmiiar further contended that ~ Rule 14 of the TADA rules was not followed in this case, which contemplates procedure of issuing warrant authorizing any police officer above the rank of constable to enter and search the place in the manner specified in the warrant and to seize anything found in or on such place, whkh the police officer has reason to believe, has been or is being, tir is intended to be, used for the purpose of or in connection with any such contravention or offence. Power ,4.

, to issue search warrants by a District Magistrate under Rule 14 is, to some extent, similar to the power which could be exercised under Section 94 ofthe Cr. P. C. This contention was not raised by the learned counsel for the accused before the trial court, may be, because at the time of carrying out the search, there was no pending case under the TADA Act and that police officers were entitled to carry out the search and seizure under Section I65 of the Criminal _.... Procedure Code. The search and seizure was carried out by higher officer, namely, S. P. C. l. D. , Crime Branch. Further, exercise of such power by the District Magistrate does not take away the authority of the police officer to search under Section 165 of the Cr. P. C. In the present case, there is no question of application of Rule 14 of the TADA Act as at that stage, no case for the offence was pending.

Being cognizable offence, on the basis of information received that large quantity of arms and explosive substances ~ were stored in the premises, the police officer was entitled to exercise power under Section 165 Cr. P. C. Hence, we find no force in this contention. The learned counsel pointed out that before carrying out the raids ':. neither FIR was registered and even after breaking open locks the procedure is not followed. It is true that in this case FIR was registered after carrying out the raids. For this contention, it has been pointed out on behalf of the ~ prosecution that before raids were carried out there was no certainty that arms ·and ammunition would be recovered. These raids were carried out only on the basis of information received after interrogation of A:I Lal Singh. Secondly, the raid was carried out in the presence of higher officer, namely Mr. A. K. R. Surolia, Dy. C. P (PWI03).

For breaking of locks in the said premises, there is no questi'on of different procedure in such cases. For this purpose panchnama was prepared and it is mentioned that after breaking open the locks, search -I was carried out. Learned counsel further submitted that there was no justifiable reason to deposit the arms and ammunitions which were found in the said two premises at the police head quarter. It is the say of the witness that muddamal arms and ammunitions were deposited at the police head quarter because of its large quantity. It is quite possible that there may not be sufficient space at the police station where FIR was registered. In any case, for the purpose of safety if the muddamal articles are deposited at the police headquarters, it cannot be said that the recovery is in any way vitiated. The next contention that Rule 15 of TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW128, PW132 and PWI 33.

PWI 28 Satishchandra Rajnarayanlal, who was S. P. , CBI II, Punjab Cell at New Delhi in 1992 stated that he registered the offence R. C. 6-Sil/92. He recorded the confessional statements of AI Lal Singh Ex. 620 and A3 Tahir Jamal Ex. 618 alongwith other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary -. confessional statements, he recorded their confessional statements. PW 132 Padamchandra Laxmichandra Sharma, who was SP CBI SIC. II at the relevant time stated that when he took over the charge of this case RC. 6. (S)/92 from Mr. Satishchandra, this case was on the last phase. Dy. S. P. CBI, D. P. Singh (PW! 36) had produced A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8. 7. 1993 and 6. 2.

1994 for recording their voluntary confessional statements, which are Ex. 650 and Ex. 654 respectively. Before recording their -"" statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PWI 33 Sharadkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was S. P. in the same branch at New Delhi. On 5th November, 1992 he was directed by DIG M. L. Sharma to proceed to Ahmedabad in order to record statement of A4 Saquib Nachan under -.. f Section 15 ofTADA Act. On 6th November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A4 Saquib Na.. :han.

Before recording confessional statement, he ascertained from him whether he was voluntarily ready to give confessional statement and warned him that if he made confessional stiltement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt; lie recorded the confessional statement of A4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of accused. In view of the aforesaid evidence, the prosecution has proved its case . ,... ,. beyond reasonable doubt against the appellants who are convicted by the trial court. (I) For accused no. I, the evidence as narrated above proves, beyond reasonable doubt, his involvement in criminal conspiracy.

He moved from one place to another in India in different fake names; he along with other persons went to Ahmedabad, hired C-33, Paresh Apartments and got transferred building 4A in Usmanharun Society, Juhapura. Ahmedabad. On the basis of his interrogation, the police at Ahmedabad raided the premises and found large quantity of arms, ammunitions and explosive substances. His stay at Ahmedabad in the said premises is established without any shadow of doubt by examining independent witnesses including residents of aforesaid two premises, the washerman and other persons. He was staying in the name of Ashok Kumar Khanna or Iqbal. His stay in different hotels is also established. The purchase of Mahindra Jeep and Maruti Gypsy is also proved. Therefore, it cannot be said that the trial court erred in convicting him for the offences punishable under Section 3(3) and 5(1) of the TADA Act as well as Section 1208 IPC and under Section 25 (I) (a) of Arms Act. (2) Against accused no.

2, apart from his confessional statement, it is proved that he is a Pakistani national. He moved from one place to another in India. He stayed at Aligarh with AI and in Qureshi Guest House at Delhi in different names during different period. Hence, there is no reason to discard his confessional statement that he was LS. I. agent and that he was involved in terrorist activities and hatched conspiracy with AI. (3) For accused no. 3, apart from proving his confessional statement, prosecution has proved that he was found in the company of 182 SUPREME COURT REPOR'b. S [2001] l S. C. R. . ~, ;~. ' , A1and A20 at Bombay. From his prer? iises, the letter written by him (Ex. 602 and 603) was found indicating his secret activities. I (4) For accused No. 4, apart from his confessional statement, it is proved that he accompanied AI at Ahmedabad and Madras and stayed in different hotels in different names. He was present at Aligarh alongwith AI and A2. He was also absconding.

(5) Similarly for A20, in addition to confessional statement, the prosecution has led the evidence to establish his association with AI and A2 at Aligarh. Thereafter, it is proved that he went to Bombay and introduced AI and A3 as his friends to his friend PW87. The next question would be with regard to the conviction of A3. A4 and A20 for the offence punishable under Section 3(3) of the TADA Act. In our view, there cannot be any doubt that A3, A~ and A20 have conspired alongwith AI and A2 in their preparatory terrorist activities. Apart frc.. 11 conspiring, A4 specifically accompanied AI at Ahmedabad for the purpose of finding hide out. He also accompanied AI at Madras for surveying the Madras Stock Exchange. If A4 was not at all connected with AI, there was no necessity of travelling together in fake names. For accused nos. 3 and 20, it is true that apart from their confessional statements, role proved against them in conspiring with AI is limited.

However, A3, Tahir Jamal had kept substantial amount for carrying the expenditure incurred in these activities. The torn letter Ex. 602 and 603 establishes that he was involved in secret karobar. In this view of the matter, it cannot be said that their conviction under Section 3(3) of the TADA Act is in any way illegal or erroneous. However, considering the role played by A-3, A-4 and A-20, we think interest ofjustice would be served iftheir sentence is reduced from life imprisonment to R. l. for 10 years. In the result, Criminal Appeal No. 219 of 1997 filed by A- I Lal Singh and Criminal Appeal Nos. 1409-1411of1999 filed by A-2 Mohd Shariefare dismissed and their conviction and sentence as imposed by the learned Designated Judge are confirmed. Conviction ofA-3 Tahir Jamal, A-4 Mohd Saquib Nachan and A-20 Shoaib Mukhtiar for the offence under Section 3(3) of TADA Act 4 is confirmed, but their sentence is modified to the extent that they are directed to suffer R. l.

for 10 years for the same and to pay a fine of Rs. I0,000 each and in default to suffer R. l. for 6 months. Howeve, their conviction and sentence under Section 120B and 120B (1) ofl. P. C. imposed by the Designated Court are maintained. Hence, Criminal Appeal No. 244of1997, Criniinal Appeal A No. 294of1997 and Criminal Appeal Nos. 407-409of1997 filed by A-4, A-20 and A-3 respectively are allowed to the aforesaid extent only. B. K. M. Appeals dismissed against accused Nos. 1 and 2 Appeals partly against accused Nos. 3, 4 and 20