STATE OF RAJASTHAN v. AJIT SINGH AND ORS

Citation: [2007] 11 S.C.R. 251

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

STATE OF RAJASTHAN v. AJIT SINGH AND ORS.pdf

Judgment text

-l STATE OF RAJASTHAN v. AJIT SINGH AND ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ) i "..... ,, Terrorist and Disruptive Activities (Prevention) Act, 1987: ss. 3(3), 4(1), 15 and21-Terroristacts anddisruptive activities- \ On the statement ofone ofthe accused that they had been smuggling arms and ammunition, 19 persons prosecuted-Confessions ofother accused not indicating knowledge on their part that weapons were smuggledfor use in terrorist activities-No questionput to any accused u/s 313 Cr. P. C. as to their involvement in any terrorist or disruptive activity-HELD: Onfacts, sine qua nonfor applicability ofss. 3(3) and 4(1), i. e. "knowinglyfacilitates" commission ofthe offence, not made out~While recording confessions, provisions ofs. 15 and r. 15 not " ~ complied with-There is no evidence to show recovery ofweapons, or use thereofin the manner laid down ins.

3, therefore, presumption u/s 21 not applicable-Designated court rightly acquittedthe accused of the charges. s. 15-Confessions recorded by Superintendent ofPolice- Accusedinpolice custodyfor about 45 days-15-30 minutes time given to accused for reflection before recording confession-HELD: -1 Sufficient cooling offtime was not given to accused-Special report ~ under r. 15(5) not submitted to Magistrate-Confessions rightly not taken into accountfor anypurpose by designated court-Terrorist and Disruptive Activities (Prevention) Rules, 1987. According to the prosecution case, some Customs officials, while on patrol duty on the ludo-Pakistan Border in the State of -f Rajasthan, suspecting a vehicle stopped it. A-1, the passenger in the vehicle disclosed that they were returning from the house of'A-5', who with the assistance of'A-2' had on several occasions brought \-- ) arms and ammunition from Pakistan for use in Punjab so as to further terrorist efforts towards creation ofKhalistan.

'A2' was said to have / confirmed the statement of A-1. An FIR was registered. The investigatfon led to arrest of many persons, out of whom 7 made confessions before the Superintendent ofPolice (PW-8). 19 persons faced the trial and the designated court acquitted all ofthem ofthe offences punishable u/ss. 3(3) and 4(1) ofthe 1987 Act and convicted ·~· A-1 alone u/ss. 3/6 of the Passports Act, 1967. The instant appeal filed by the State was confined to the ,• challenge ofthe judgment ofacquittal passed by the trial court only with respect to those seven of the accused-respondents who had made confessions before PW-8. It was contended that a confession.

/ made under section 15 of the Act was per se admissible in evidenc~ and that such a confession could be used as corroborative of tt~e confessional statement of the other co-accused; that the 1 presumptions in favour ofthe prosecution under Section 21(1) ofthe 1987 Act placed a heavy --the activities ofthe accused as alleged by the prosecution fall within the ~ parameters ofSection 3(3) and 4(1), the two provisions under which they have been charged. A bare perusal of Section 3(3) would reveal that it would be applicable only if the accused "knowingly" facilitated the commission of a terrorist act or any act preparatory to a terrorist (5) Every confession recorded under the said Section 15 shall be sent forthwith to the ChiefMetropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded version so received to the Designated Court which may take cogniz.

ance ofthe offence. " 10. It will be seen that section 15 is a clear departure from the general law that a statement made to a police officer is not permissible in evidence. In Kartar Singh 's case (supra), this Court while upholding the vires of section 15 repeatedly dwelt on the severity ofthis provision as one laying down altogether a new procedure and emphasized that the provisions of G the Act and Rules must be scrupulously observed with particular reference to the provisions relating to the recording ofconfessions. 11. A serious challenge has been made by Mr. Sodhi to the effect that the confessions had not been recorded as per the procedure laid down H. and that Rule 15(5) which provided for the submission ofa special report to the Illaka Magistrate had been infracted.

It has also been emphasized that all the accused had been in police custody for 40 to 43 days when their confessions had been recorded and it appeared that adequate time for reflection had not been given which raised the possibility that they had been hustled into their confessions. The learned counsel has cited Rarljit Singh v. State of Punjab, (2002) 4 Crl. L. J. 4694 to argue that if adequate time for reflection was not given a confession could be said to involuntary. He has also drawn our attention to the statement of PW-8 Shri Rajeev Basot who deposed that before the confessions had been recorded the accused concerned had been released from police custody and he had been asked as to whether he was being coerced into giving a confessional statement and fore-warned that the confession could be used against him. 12. We have perused the confession ofthe seven accused and the prefatory proceedings relating thereto. We first examine the confession made by Noordeen. From Ext.

P-18, the note recorded by Shri Ranjit Dasot as a prelude to the recording ofthe confession, it transpires that he had been produced before him at 12. 30 p. m. on the 21st September 1991 and after the completion of the formalities the recording of the confession had started at 12. 45 p. m. Likewise Ajit Singh @Guru Lal Singh had been produced before the officer at I0. 50 a. m. and the recording ofthe confession had started half an hour later. We have seen the record ofconfessions ofthe other accused as well and it shows that 15 to 30 minutes time was given to the accused for reflection before the actual confessions were recorded. We accordingly find that sufficient cooling offtime had not been given to the accused, in the background >-- • that they had been in police custody over a long period of time. It has \ been held in Rarljit Singh 's case (supra): "According to the deposition ofP. W.

3 in cross-examination, the accused were in police custody 18-20 days prior to recording oftheir confessional statements. P. W. 3 has deposed that he gave the requisite warning to the accused that they were not bound to make the confessional statement and ifthey make it will be used STATEv. AJITSINGH[HARJITSINGHBEDI,J. ] 265 as evidence against them, but despite the warning they were prepared and willing to make the statement. After recording the introductory statement in this behalfin question answer form he still considered it proper to give them some time for rethinking and for this purpose they were allowed to sit in separate room for some time and brought to him after about half an hour and expressed their desire to make statement and thereafter the confessional statement were recorded.

Before adverting to the facts said to have been narrated by the accused as recorded in the two confessional statements, it deserves to be noticed that in case the recording officer ofthe confessional statement on administering the statutory warning to the accused fom1s a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would, of course, depend upon the facts and circumstances ofeach case. At he the same, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time. In a given case, depending on facts, the ·recording officer without granting anytime may straightway proceed to record the confessional statement but ifhe thinks it appropriate to grant time, it cannot be a mechanical exercise for completing fom1ality.

In Sarwan Singh Rattan Singh v. State of Punjab, AIR (1957) SC 63 7, where a Magistrate granted about half an hour to the accused to think over and soon thereafter recorded the j confessional statement, this Court reiterated that when an accused is produced before the Magistrate by the Investigating Officer, it is ofutmost importance that the mind ofthe accused person should 0 be completely freed from any possible influence ofthe police and the effective way ofsecuring such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the ,,_ \ . _ time which should be allowed to an accused person in any given case. " 14.

Applying the aforesaid principles to the facts ofthe present case, we are of the opinion that adequate time had not been given to any of the accused as they had been in police custody for almost 45 days in each case. We also observe that there is no evidence on record to suggest that the special report envisaged under sub-rule (5) ofRule 15 had been ,. _ submitted to the Magistrate. The confessions cannot therefore be taken into account for any purpose. .. 15. The learned Government counsel has nevertheless argued that in the light ofthe judgment ofthis Court in Jamil Ahmed's case (supra) the confessional statement made by Ajit Singh implicated all the other accused in terrorist and disruptive activities and as such could be used against them as well. We notice Jamil Ahmad's matter pertained to an incident which happened in December 1990.

In paragraph 22 this Court while dealing with the questions as to whether sections 25 to 30 ofthe Evidence Act would apply to confessions recorded under section 15 of the Act observed: ""' "Since the prosecution case in these appeals is primarily founded on various confessions ofthe accused involving themselves as well as other co-accused, we will first consider the argument ofthe 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 ofthe confession, and ifso, can it also be used against a co-accused and ifso whether >-· such confession requires corroboration or not, and ifso required whether such corroboration need be general or should be ofall material facts in the confession.

The argument oflearned counsel in this regard is that the prosecution should prove the involvement ofthe 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 STATEv. AJITSINGH[HARJITSINGHBEDl,J. ] 267 confessions recorded under section 15 of the TADA Act. In support ofthis argument, the learned counsel relies on the line of judgments ofthis Court which considered the scope of sections 25 to 30 ofthe Evidence Act and the probative value of such a confession; one ofsuchjudgments is Mohd. Khalid v. State ofW. B The passage relied upon by the appellants in support of this contention of theirs in the said judgment runs thus : (SCC p.

357,para 31) "It is only when the other evidence tendered against the coaccused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect (sic) him as lending support or assurance to such other evidence. " 16. It has accordingly been emphasized that the statement made by the accused could be used one against the other. Mr. Sodhi has however pointed out that the decision in Jamil Ahmed's case had been rendered ;- without noticing thatthe words in section 15(1) ofthe Act (which have been underlined above) that is "or co-accused, abettor or conspiratoi-" had been inserted in the Act in 1993 and as such could not be retrospectively applied to an incident of 12th August 1991. He has also referred us to State (NCT ofDelhi) V.

Navjot Sandhu [2005] 11 sec 600 to submit that this issue had been specifically raised and while noticing the addition made in 1993 it had been observed that a confessional statement recorded under section 15 would be sufficient to base a conviction on the maker ofthe confession but on the other proposition whether such a confession could be used against a co-accused was . 1 another matter. This Court distinguished Jamil Ahmed case and observed ; thus in Paragraph 49: "It is, however, the contention ofthe learned counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confession of the co-accused as well. The omission of the words in POTA "or co-accused, abettor or conspirator" following the expre3sion "in the trial ofsuch person" which are the words contained in Section 15(1) of TADA does not make material difference, according to him. It is his submission that the words "co-accused", etc. were included by the 1993 + 1 ..

_ Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co-accused. According to the learned Senior Counsel, the phrase "shall be admissible in the trial ofsuch person" does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected ,_ by the confession. The learned Senior Counsel highlights the crucial words "in the trial ofsuch person" and argues that the confession ... would not merely be admissible against the maker but would be. admissible in the trial ofthe maker which may be atrial jointly with the other accused persons. Our attention has been drawn to the provisions ofCr. P. C. and POTA providing for ajoint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC.

We find no difficulty in accepting the proposition that there could be a joint trial and the expression "the trial ofsuch person" may encompass a trial in which the accused who made the confession is triedjointly with the other "accused. From that, does it follow that the corifession made by one accused is equally admissible against others, in the absence ofspecific words? The answer, our view, should be in the negative. On a plain reading of Section 32(1), the corifession made by an accused before a police officer shall be admissible against the maker ofthe confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession ofthe co-accused within the fold ).. ofadmissibility. Such stretching ofthe language oflaw is not at all 1varranted especially in the case ofa law which visits a person with serious penal consequences [vide the observations ofAhmadi,J.

(as he then was) in Niranjan Singh v. Jitendra, SCC at p. 86, which were cited with approval in Kartar Singh case]. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession ofthe co-accused within the net ofadmissibility on a par with the confession ofthe maker. An Evidentiary rule of s~ch importance and grave STATE v. AJIT SINGH [HARJIT SINGH BEDI, J. ] 269 consequence to the accused could not have been conveyed in deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration ofthe pros and cons, by dropping the words "co-accused",etc. These specific words consciously added to Section 15(1) by the 1993 Amendment ofTADA so as to cover the confessions of the coaccused would not have escaped the notice ofParliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession ofthe co-accused 1.

under the ordinary law ofevidence, should be allowed to have its . sway taking a cue from the observations in Kartar Singh case at para 255. The confession recorded by the police was, therefore, allowed to be used against the maker ofthe confession without going further and transposing the legal position that was obtained under TADA. We cannot countenance the contention that the words "co-accused'',etc. were added in Section 15(1) ofTADA, ex majore cautela. " 17. It is therefore clear that the Division Bench in Navjot Sandhu's case clearly repelled the contention raised by the State counsel that a confession made by an accused could be used as against a co-accused. Some argument has also been addres~ed ( based on the observations in Jameel Ahmed and Navjot Sandhu 's cases (supra)) that even assuming that confessions had been made it had still to be found whether they were a true and accurate narrative of the facts.

We have gone through the confessional statements of the seven accused and we observe that Noordeen who says that they had received weapons from Ajit Singh is not corroborated by Ajit Singh who has not said a word as to whether he had handed over any weapon to any person. We reiterate that there is not even a suggestion in the evidence that the money that had allegedly been handed over to some ofthe accused was payment for the Jonga or the camels used for smuggling arms from Pakistan to be used in Punjab. 18. The learned counsel for the State has however submitted that in the light ofthe presumptions drawn under section 21 ofthe Act it had to be found that the arms and ammunition were to be used in terrorist activity and a heavy onus lay on the accused. We find this provision would be applicable only ifit is "proved" that the arms and ammunition had been recovered from the accused and had been used in the manner laid down in section 3.

We have on the contrary found that there is no evidence to show a recovery ofweapons or that any ofthe accused (other than Ajit Singh) had any knowledge as to the ultimate destination and end use of the weapons . that had been brought in. The presumption therefore under section 21(2) cannot therefore be raised in the present case. In the light of what has been held, we are of the opinion that the other arguments raised by the learned counsel for the parties with regard to the recoveries etc. pale into insignificance and do not require any discussion. We according! '. )' dismiss the appeal. RP. Appeal dismissed. ..