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CASE NO.:

Appeal (crl.) 371 of 2001

PETITIONER:

NAZIR AHMAD BHATT

Vs.

RESPONDENT:

STATE OF DELHI

DATE OF JUDGMENT: 02/11/2001

BENCH:

K.T. Thomas & S.N. Variava

JUDGMENT:

THOMAS, J.

The manager of a bank had undergone the entire term of

imprisonment to which he was sentenced by a designated

judge under the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (TADA for short). He still

persists in challenging the conviction and sentence

presumably because the consequence of it would entail

dislodgment from his office in the bank. He was found

having involved in disruptive activities ranging to defying

the sovereignty and territorial integrity of India. On the

strength of the aforesaid finding the designated judge

convicted him under Section 4 of TADA and sentenced him to

rigorous imprisonment for 5 years besides a fine of

Rs.5,000/-. He was also convicted on other counts of

offences such as Sections 120B, 419, 468 and 471 of the

Indian Penal Code, for which he was sentenced to

imprisonment for lesser terms. As he completed his

sentence by undergoing the term of imprisonment imposed

under Section 4 of TADA he is deemed to have undergone the

sentences imposed under the other counts as well because of

the direction that the sentence of imprisonment under all

the different counts shall run concurrently.

This appeal under Section 19 of TADA is, therefore, as

of his statutory right and his senior counsel (Shri Sushil

Kumar) has tenaciously pursued it despite the advantage

that he need not now go back to jail. But as the fall out

of the conviction would visit him with dire consequences

for his service tenure, learned senior counsel did not

spare any effort to get him exonerated. We heard the

arguments with all seriousness with which learned counsel

projected them.

Appellant belonged to the State of Jammu & Kashmir.

Though he joined Jammu & Kashmir Bank at the lower tier he

was able to reach the position of manager of the bank.

During the relevant period he was manager of the Delhi

Branch (Connaught Place) of the aforesaid bank. A raid was

conducted by the police at his residence on 12.4.1995, as a

sequel to some sleuth information which the police

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succeeded in extracting from one Mohd. Yakub who was

arrested at Srinagar on 2.1.1995. In the raid, police

recovered an audio cassette, some stickers and two

floppies. According to the prosecution those materials

contained exhortations made by leaders of secessionists

organisations for liberation of Kashmir from India. They

are produced before us for our scrutiny. We have noticed

that the stickers contained such exhortations inscribed in

English. The writings in other materials are in Urdu but

we did not have the advantage of getting the authenticated

translation of them. Nonetheless, we are not disposed to

convict a person merely because some stickers and leaflets

etc., containing exhortations for liberation of Kashmir,

were found in his house unless it is shown that he had a

part in making or using such materials.

The prosecution, however, relied on a confession

attributed to the appellant as recorded by a Deputy

Commissioner of Police (PW-4). That confession is sought

to be admitted under Section 15 of TADA. If the contents

of the documents styled as confession can be acted on as

voluntary and genuine it would provide evidence for the

disruptive activities said to have been perpetrated by the

appellant. According to the appellant he was picked up by

the police on 8th April, 1995 and was detained in illegal

custody and the statement attributed to him was not in fact

made by him. He was made to sign some documents the

contents of which were not even read out to him, according

to the appellant.

Ext.P-25 is the document containing the confessional

statement of the appellant. The relevant portions of it

are the following: Appellant was told by one Maulana Masood

Azhar that his house at Srinagar was raided by security

forces because of his links with Harkat-ul-Ansar (a

terrorist organisation) and he escaped from being caught.

Later, one Mohd. Asraf Dhar told him that he was a worker

of the terrorist organisation and he was assigned the task

of raising funds for carrying out the activities connected

with the liberation of Kashmir. It was the said Mohd.

Asraf Dhar who gave him audio cassette containing

inflammatory speeches of Maulana Masood Azhar exhorting the

Muslims to fight against Indian people for separating Jammu

and Kashmir from the rest of India. After hearing the

speeches from the cassette appellant agreed to work for

Harkat-ul-Ansar. A code name was given to the appellant as

Abid. Money would be despatched to him through Hawala,

for the various operations planned by Harkat-ul-Ansar. He

was to exchange messages with Mohd. Asraf Dhar. A total of

Rs.25 lakhs was received by him from Sharjah in about seven

instalments through Hawala for being used in connection

with terrorist activities. He was allowed to take Rs.25

thousand for his personal expenses. He also got other

floppies as well as literature of Harkat-ul-Ansar

containing anti-India propaganda. The confession further

narrates some more activities involving money transactions

for the use of the same disruptive activities.

If one reads Ext.P-25 he cannot but form the

irresistible impression that activities were targeted

against the sovereignty and territorial integrity of India

vis-à-vis the State of Jammu and Kashmir. Hence it is

unnecessary to ponder over the question whether Ext.P25

would really amount to disruptive activities. None can

even doubt, reading Ext.P-25, that it amounts to disruptive

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activities as defined in Section 4 of TADA. It is not

necessary to cogitate over the question whether Ext.P-25 is

admissible in evidence as Section 15 of TADA has removed

the lid of inadmissibility, if the confession was made to a

police officer not lower in rank than a Superintendent of

Police. There is no dispute that PW-4 was holding such a

rank during April 1995.

Therefore, Shri Sushil Kumar learned senior counsel,

focussed on the reliability of the said confession. The

first point raised against the confession is that when

appellant was produced before PW-4 on 18.4.1995, he did not

administer a caution to him that he was not bound to make

any such confession. Rule 15 of the Terrorist and

Disruptive Activities (Prevention) Rules (for short the

Rules) was cited before us which contained regulations for

recording confession under Section 15 of TADA. Sub-rule

(3) of the Rules says, inter alia, that the police officer

who records the confession shall make a memorandum at the

end of the confession to the following effect:

I have explained to (name) that he is not

bound to make a confession and that, if he

does so, any confession he may make maybe

used as evidence against him and I believe

that this confession was voluntarily made.

It was taken in my presence and hearing and

recorded by me and was read over to the

person making it and admitted by him to be

correct, and it contains a full and true

account of the statement made by him.

There is no dispute that a memorandum to the above

effect has been appended to the confession signed by PW-4.

But learned senior counsel submitted that mere appendage of

such a memorandum is insufficient, as the caution envisaged

in the rule should really have been administered to the

appellant, i.e. he was not bound to make a confession and

that if he did so the confession could be used against him.

Learned counsel pointed out that in the minutes recorded by

PW-4 on 18.4.1995 there was no mention about administering

a caution to the appellant that he was not bound to make a

confession. Nonetheless, PW-4 recorded in the said minutes

that he cautioned the appellant that the confession could

be used against him during trial and that the appellant

replied that he fully understood the consequence of making

a confession. On 19.4.1995 PW-4 asked him the question

whether he was aware that he was not bound to make a

confession to which the appellant answered in the

affirmative, then only he proceeded further and recorded

the confession.

Thus, it is clear that what was required by law for

compliance with as precautionary measures have been

complied with by PW-4. Of course, the witness PW-4 has

deposed in court that he explained to the confessor even on

18th itself that he was not bound to make such a confession.

Learned senior counsel for the State contended that the

court can regard the said evidence for satisfying itself

that there was no such non-compliance. Section 463 of the

Code of Criminal Procedure enables the court to take

evidence in regard to any non-compliance and to act on such

evidence if the court is satisfied that such non-compliance

has not injured the accused in his defence on the merits.

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In our view, resort to Section 463 of the Code is

unnecessary on the facts of this case because PW-4 had

administered the caution to the confessor on 19.4.1995,

before proceeding to record the confession, that the

confessor is not bound to make such a confession. There is

no requirement that the confessor should be administered

with such caution on every day the officer meets him. It

is enough that the caution is administered before the

accused made the confessional statement.

Learned senior counsel then adopted an alternative

attack on the confessional statement basing on a guideline

laid down by this Court in Kartar Singh vs. State of Punjab

{1994 (3) SCC 569}. A Constitution Bench of this Court was

considering the constitutional validity of Section 15 of

TADA and learned judges of the Bench upheld its validity in

the aforesaid decision. However, certain guidelines were

formulated for compliance by the officers to ensure that

confession is not tainted with any vice. Guideline No.2,

to which focus is made by the senior counsel, reads thus:

The person from whom a confession has been

recorded under Section 15(1) of the Act,

should be produced before the Chief

Metropolitan Magistrate or the Chief

Judicial Magistrate to whom the confession

is required to be sent under Rule 15(5)

along with the original statement of

confession, written or recorded on

mechanical device without unreasonable

delay.

In order to drive his point home learned senior

counsel contended that it is for the prosecution to show

that everyone of the guidelines has been complied with by

the police officer. Learned senior counsel for the State

submitted that it is open to the court to presume that

official acts have been regularly performed and hence it is

for the party who wants to show non-compliance of any

official duty, to satisfy the court about the lapse. In the

present case we do not propose to enter on a discussion

regarding the aforesaid question of burden of proof because

there is material on record to show that appellant was

produced before the Additional Chief Metropolitan

Magistrate for the purpose of verification of the statement

attributed to the appellant. PW-38 the Investigating

Officer said so in his evidence. Nothing has been shown to

us for disbelieving the aforesaid evidence.

Learned senior counsel for the appellant then made an

endeavour to show that PW-4 had only copied the statement

prepared by the Investigating Officer under Section 161 of

the Code of Criminal Procedure and secured the signature of

the appellant thereon. We do not have any material to

think that PW-4 did so as contended by the learned counsel.

In this context we may point out that appellant did not

make a mention to the Additional Chief Metropolitan

Magistrate before whom he was produced on 19.4.1995 that he

was made to sign any document without his consent or that

he did not make a confession as recorded by PW-4.

We have to bear in mind the answer given by the

appellant to a question put by the trial judge during

examination under Section 313 of the Code after bringing

his attention to Ext.PW-4/B. That document is dated

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18.4.1995 and it shows that appellant gave his consent to

make a confessional statement before the senior officer.

Appellant owned Ext.PW-4/B though he explained that he

signed it at the instance of the Investigating Officer.

This means, appellant was told in advance about the

possibility of recording his confession. He never had any

complaint that he was physically or even mentally tortured

by the police at any time. He thought of retracting from

the confession only during trial of the case and not at any

previous stage.

From all the above broad circumstances, we are

inclined to believe that confession was voluntarily made by

him. The seizure of the stickers and other materials from

his house would only lend assurance to the court that the

confession contained only the truth.

We do not find any good reason to upset the conviction

passed by the designated court under TADA. We, therefore,

confirm the conviction. We need not vex our mind about the

quantum of sentence because, as pointed out earlier,

appellant has already undergone the period of imprisonment

covered by the sentence.

In the result, we dismiss this appeal.

J

[ K.T. Thomas ]

J

[ S.N. Variava ]

November 2, 2001.