Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.498 of 2012

SEENI NAINAR MOHAMMED ...APPELLANT(S)

:VERSUS:

STATE REP. BY DEPUTY SUPERINTENDENT

OF POLICE ...RESPONDENT(S)

With

CRIMINAL APPEAL NO.867 of 2012

SHAHUL HAMEED & ORS. ...APPELLANT(S)

:VERSUS:

STATE REP. BY DEPUTY SUPERINTENDENT

OF POLICE ...RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1.These two appeals are directed against the judgment and

order dated 8

th

September, 2011 passed by the Court of Designated

Judge for TADA Cases, Tirunelveli, in TADA Case No.1/1997,

whereby the learned Designated Judge found the appellants herein

guilty for offences punishable under Section 120(B) read with

Sections 302, 147, 148 & 149 of the Indian Penal Code, 1860

Page 2 2

(hereinafter referred to as “IPC”) and Sections 3(2), 3(3) & 3(4) of

the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( for

short “TADA”) and sentenced them to life imprisonment.

2.The facts of the case have been elaborately discussed by the

learned Special Judge of the Designated Court for adjudication of

TADA cases. We need not, therefore, recapitulate the entire factual

backdrop in which the appellants were tried, found guilty and

sentenced, excepting where it is absolutely necessary to do so.

There are six accused in this case, namely, Sahul Hameed (A-1),

Raja Hussain (A-2), Zubeir (A-3), Zakir Hussain (A-4), Azeez (A-5)

and Seeni Nainar Mohammed (A-6). On 10

th

October, 1994, at

about 06:30 a.m., A-1 to A-6 in pursuance of the conspiracy

hatched amongst them, went to the house of one Rajagopalan

(since deceased), who was President of Hindu Munnani

Association, with a motive to kill him. A day before the incident,

A-6 Seeni Nainar Mohammed had advised his brother Raja

Hussain (A-2) to meet him after completing the task of murdering

Rajagopalan. When Rajagopalan, after taking the newspapers from

a newspaper sub-agent Saravanam (PW-3), was going through the

newspapers facing East at his house, accused persons came from

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left hand side of Rajagopalan and while A-1 caught hold of the

neck of Rajagopalan from behind, A-3 and A-4 took out knives and

stabbed on his stomach. A-5 showing a sickle threatened the

public to run away and repeatedly attacked the said Rajagopalan

and thereafter they ran away towards west. On hearing the noise,

PW-1 Krishnaveni wife of the deceased came out of the house and

saw that her husband was lying down in a pool of blood. The

occurrence was witnessed by PW-1, PW-3, PW-4, PW-5 & PW-6.

PW-1 informed about the incident to the Market Police Station on

telephone. Upon receiving the information, PW-2 Inspector of

Market Police Station rushed to the spot and enquired from PW-1

who gave a written complaint to him.

3.Law was set into motion when PW-2 Stalin Michael, Inspector

registered the FIR Ext.P2 at 07:30 a.m. at Police Station Thilagar

Ground, Madurai District, under Sections 147, 148 and 302 of IPC

in Crime No.2490/1994. On the orders of DGP, the case was

transferred from local Police to CBCID and Shri Rajagopal, DSP

(PW-24) took up the investigation, went to the place of occurrence,

examined the witnesses and recorded their statements. Since

PW-24 was holding additional charge, he could not accomplish the

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task of investigation and further investigation was taken up by Shri

Jones, DSP (PW-30) and after receiving prior approval from

Superintendent of Police (PW-26), registered the case under TADA.

The records of the case were transferred to the learned Designated

Judge for TADA Cases and after trial, the learned Designated

Judge vide his judgment and order dated 08.09.2011 convicted all

the accused in TADA Case No.1/1997 holding that the prosecution

has proved the first charge as against A-1 to A-6. A-1 to A-5 were

convicted under Section 3(2) read with Section 3(1) of TADA read

with Section 149 of IPC and sentenced to undergo life

imprisonment and to pay a fine of Rs.10,000/- each, and in default

of payment of fine, to undergo rigorous imprisonment for 1 year.

However, A-6 was convicted under Section 3(2) read with 3(1) of the

TADA read with Section 109 of IPC and under Section 3(4) of TADA

and sentenced to undergo life imprisonment and also to pay a fine

of Rs.5,000/- and in default of payment of fine, to undergo rigorous

imprisonment for 1 year. However, all the sentences were directed

to run concurrently. Hence, the present appeals under Section 19

of TADA read with the Supreme Court (Enlargement of Criminal

Appellate Jurisdiction) Act, 1970. Criminal Appeal No.498 of 2012

Page 5 5

has been filed by A-6 while Criminal Appeal No.867 of 2012 has

been filed by A-1 to A-5.

4.We have carefully perused the impugned judgment and the

material on record and have also meticulously examined the

testimonies of the witnesses and other relevant evidence produced.

Since the appellate jurisdiction against any judgment passed by

the Designated Court for TADA cases lies with this Court only, we

would consider the peculiar circumstances of the present case to

appropriately discuss every relevant issue in question before us.

5.The very first issue which falls for our determination as

pressed by the learned senior counsel for the accused-appellants

herein is whether the approval in the present case can be said to

be sufficient compliance of the provisions of Section 20-A of TADA

which reads as under:-

“20-A Cognizance of offence.- (1) Notwithstanding anything

contained in the Code, no information about the

commission of an offence under this Act shall be recorded

by the police without the prior approval of the District

Superintendent of Police.

(2) No court shall take cognizance of any offence under

this Act without the previous sanction of the

Inspector-General of Police, or as the case may be, the

Commissioner of Police.”

6.We have considered the fact that after the investigation,

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PW-30 DSP of CBI approached PW-28 IG on 13

th

September, 1997

seeking sanction for prosecution against A-1 to A-5 for offences

under TADA Act. PW-28 on 16

th

September, 1997 granted the

sanction (Ext.P-46) for prosecution against A-1 to A-5 under TADA

Act. It is stated by PW-28, IG that he perused all the records placed

by PW-30, along with requisition, seeking for sanction containing

the Inquest Report, Post-mortem Report, 164 Statements of

eye-witnesses and 161 Statements of other witnesses, confession of

A-1 and other materials and granted sanction for prosecution

against A-1 to A-5 under Section 3 of the TADA Act, 1987. It is also

to be noted that in the course of investigation, the confession of

A-6 (Ext.P-43) dated 25.10.1994 was recorded by PW-26 SP, on the

basis of the requisition given by PW-24 DSP, CBCID. The case was

subsequently transferred to CBI in July, 1996 and on transfer,

PW-30 CBI, DSP took up the investigation on 17.07.1996.

7.We have also noted that the sanction (Ext.P-46) granted on

16.09.1997 by PW-28 IG, referred to A-1’s confession (Ext.P-41)

only recorded on 3.04.1997 but it does not refer to the confession

of A-6 (Ext.P-43) which was recorded on 25.10.1994. This was the

only document which revealed that A-6 addressed and advised A-1

Page 7 7

to A-5 to commit the murder of Rajagopalan, with intention to

create terror in the minds of public at large in Tamil Nadu.

Therefore, the confession of A-6 (Ext.P-43) is the only document

which refers to the intention to create terror as required under

Section 3 of TADA Act. No other material or no other witness

speaks about the intention of the accused to commit the murder

with intention to create terror in the minds of public which is main

ingredient for invoking the TADA Act. Unfortunately, the said

document (Ext.P-41) has neither been referred to nor relied upon

by the Sanctioning Authority in the sanction order (Ext.P-46).

8.We have also noticed that the confession of A-1 (Ext.P-41) is

totally contradictory to the confession of A-6 (Ext.P43). It appears

from the facts that the Investigating Officer suppressed the

material document by not placing the same before the Sanctioning

Authority. We have further noticed that the TADA Court convicted

the accused under the TADA Act on the basis of confession of A-6

and not on the basis of any other material. The other point which

we have noted is that the Sanctioning Authority (PW-28) admitted

in his deposition that he did not know Tamil and did not go

through the entire records which were in Tamil. Therefore, it is

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clear that the Sanctioning Authority has not applied his mind to

the records in its entirety and granted sanction only after

considering certain documents which were in English. Therefore,

we have to accept the contention of the appellants that the

Sanctioning Authority without perusing the relevant documents

issued the order of sanction and thereby it has to be accepted that

the sanction was granted mechanically.

9.The confessions of A-1 and A-6 are not voluntary as has been

evidenced by us from the materials since those confessions were

not recorded in a free atmosphere thereby it violated the directions

given by this Court. Further, the said confessions could not be

relied upon as they contradicted with each other.

10.We, without hesitation, are of this considered opinion that the

answer to this question is in the negative for settled principle of

non-application of mind by sanctioning authority while granting

approval for taking cognizance under TADA Act and undermining

the objective of the Act. This relevant provision was inserted by Act

43 of 1993 which came into force on 23.05.1993 which is prior to

the date of commission of the offence i.e., 10.10.1994 disputed in

instant appeal which makes it crystal clear that Section 20-A(1) of

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TADA must be construed by indicating that prior approval from the

competent authority is mandatory for taking cognizance of offence

punishable under TADA. However, it shall always be borne in mind

by the sanctioning authority that application of such provisions

which forms part of penal statues requires strict interpretation and

failure to comply with the mandatory requirement of sanction

before cognizance is taken, as mentioned in TADA, may vitiate the

entire proceedings in the case. In the recent past, it has been

observed by this Court in respect of Section 20-A of TADA in the

case of Hussein Ghadially @ M.H.G.A Shaikh & Ors. Vs. State

of Gujarat, (2014) 8 SCC 425, at para 21, as follows:

“A careful reading of the above leaves no manner of doubt

that the provision starts with a non obstante clause and is

couched in negative phraseology. It forbids recording of

information about the commission of offences under TADA

by the Police without the prior approval of the District

Superintendent of Police.”

11.The most important factor for determination before the

sanctioning authority was that the acts done by a person must fall

within the ambit of terrorist activity and the accused must be a

terrorist as defined in Section 3(1). This position of law was

discussed by this Court in the case of Kalpnath Rai Vs. State

(Through CBI), (1997) 8 SCC 732, as follows:

Page 10 10

“34. Sub-section 3(5) was inserted in TADA by Act 43 of

1993 which came into force on 23-5-1993. Under Article

20(1) of the Constitution ‘no person shall be convicted of

any offence except for violation of a law in force at the time

of the commission of the act charged as an offence’. So it

is not enough that one was member of a terrorists’ gang

before 23-5-1993.

35. There are two postulates in Sub-section (5). First is

that the accused should have been a member of ‘a

terrorists gang’ or ‘terrorists organisation’ after 23.5.1993.

Second is that the said gang or organisation should have

involved in terrorist acts subsequent to 23.5.1993. Unless

both postulates exist together Section 3(5) cannot be used

against any person.

36. ‘Terrorist act’ is defined in Section 2(h) as having the

meaning assigned to it in Section 3(1). That sub-section

reads thus:

‘3(1) Whoever with intent to overawe the Government as

by law established or to strike terror in people or any sec-

tion of the people or to alienate any section of the people or

to adversely affect the harmony amongst different sections

of the people does any act or thing by using bombs, dyna-

mite or other explosive substances or inflammable sub-

stances or fire-arms or other lethal weapons or poisons or

noxious gases or other chemicals or by any other sub-

stances (whether biological or otherwise) of a hazardous

nature in such a manner as to cause, or as is likely to

cause, death of, or injuries to, any person or persons or

loss of, or damage to, or destruction of, property or disrup-

tion of any supplies or services essential to the life of the

community, or detains any person and threatens to kill or

injure such person in order to compel the Government or

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any other person to do or abstain from doing any act, com-

mits a terrorist act.’

37. The requirements of the sub-section are: (1) the person

should have done an act in such a manner as to cause, or

as is likely to cause death or injuries to any person or

damage to any property, or disruption of any supplies; (2)

doing of such act should have been by using bombs, dyna-

mites etc.; (3) or alternatively he should have detained any

person and threatened to kill or injure him in order to com-

pel the Government or any other person to do or abstain

from doing anything.”

12.Mr. Karpaga Vinayagam, learned senior counsel appearing for

the appellants submitted that the Prior Approval for investigating

the case under TADA, granted by PW-26 in the present case, is bad

in law as the same has been granted by PW-26 mechanically,

without going through the records and without recording his

satisfaction. A careful perusal of the requisition given by PW-24 to

PW-26 for seeking prior approval (Ext.P-35) reveals that a single

murder on 10.10.1994 was mentioned therein but no act of murder

with intent to create terror and panic in the minds of public, which

is the main ingredient of the offence under TADA Act, was

mentioned. The incident prior to this murder relating to objections

raised by Hindus on the construction of mosque near Hindu temple

in Madurai was mentioned in the deposition of PW-24, which could

Page 12 12

nowhere be referred or connected to act of murder. Admittedly, as

per his deposition, till 19.10.1994, none gave any complaint that

there was any commotion or violence at the place of occurrence,

resultantly connecting the case under IPC to be a prima facie case

under TADA leading to seeking prior approval, which if granted,

would be bad in the eyes of law.

13.We have also noticed that the Sanctioning Authority under

Section 20-A(2) of TADA, i.e. PW28 - IG, CBI in present case, had

granted permission to file a case under TADA on 16.09.1997 vide

permission order being Ext.P.46 and in his deposition PW-28

stated that “… I verified the TADA Rules very carefully. Upon

perusing the said documents as I was satisfied that there are ample

evidences to file a case against A1 to A5, namely Shahul Hameed,

Raja Hussain, Subair, Zahir Hussain and Aziz alias Abdul Aziz

under the TADA Act, I issued orders granting permission to file a

case under section 3 of the TADA Act…”. We may straightaway

observe that the sanctioning authority did not have necessary

material before him to show that the alleged act of causing death of

the deceased was done with intent to create terror in the minds of

public at large. Had there been any such terror in the minds of

Page 13 13

people, then as an aftermath of the death of the deceased there

would have been an adverse effect on the harmony amongst

different sections of people in the vicinity of the place of incident.

However, no such incident of striking terror in the minds of people

or adverse effect on the harmony amongst any section of society

was reported. The alleged act of causing death of an individual was

only an attack by the accused-appellants with weapons on the

deceased who later succumbed to the injuries.

14.We have noticed that sanction under Section 20-A(2) of TADA

in respect of A-6 was granted by PW-29 on 16.09.1998, which was

delayed due to time consumed in the investigation against him. In

our considered opinion, the same is also unlawful for the reasons

mentioned above. Furthermore, cross examination of PW-30 is also

reflecting the non-application of mind when after specifically

stating about relationship of the accused-appellants herein with

Alumma organization, it was deposed by him that he did not collect

any evidence or document to show that accused belonged to that

organization. In our considered opinion, the said sanctions, which

have not been proved by the depositions of these witnesses, are not

as per the mandate of law laid down by this Court in the case of

Page 14 14

State of Maharashtra Vs. Mahesh G. Jain , (2013) 8 SCC 119,

and Kootha Perumal Vs. State, (2011) 1 SCC 491.

15.After going through the records, it appears to us that the ac-

cused-appellants had grudge in their minds because the deceased

used to organize Vinayaga Chaturthi Celebrations in various places

and criticize Muslims and Islam which includes a public notice by

the deceased wherein he had demanded protection of Madurai City

which, according to the deceased, was being used by Pakistan as

the base for spying activity. The issuance of this public notice was

proved by PW-11, A.R. Kalidasan. Instances of pelting stones by

the appellants herein were proved by the evidence of PW-10, as

corroborated by the deposition of PW-13.

16.Mr. P. K. Dey, learned counsel for respondent-CBI has drawn

our attention to the decision of this Court in Kartar Singh Vs

State of Punjab, 1994 (3) SCC 569, wherein at para 451, this

Court observed:

“Mere possession of arms and ammunition specified in the

section has been made substantive offence. It is much se-

rious in nature and graver in impact as it results in prose-

cution of a man irrespective of his association or connec-

tion with a terrorist or terrorist activity. A comparison of

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this section with Sections 3 and 4 demonstrates the arbi-

trariness inherent in it. Section 3 operates when a person

not only intends to overawe the Government or create ter-

ror in people etc. but he uses the arms and ammunitions

which results in death or is likely to cause death and

damage to property etc. In other words, a person be -

comes a terrorist or is guilty of terrorist activity

when intention, action and consequence all the

three ingredients are found to exist. Similarly Section

4 applies to those activities which are directed towards

disrupting sovereignty and territorial integrity of the coun-

try. Thus a terrorist or a disruptionist and a person pos-

sessing any of the arms and ammunition mentioned in the

section have been placed on a par. In Sections 3 and 4 the

offence arises on the act having been done whereas in

Section 5 it is founded only on possession. Even under

sub-section (3) of Section 3 a person is liable to be prose-

cuted for abetting the offence if he assists or communi-

cates with a terrorist. Sub-sections (5) and (6) inserted by

Act 43 of 1993 to Section 3 also require that a person can

be prosecuted only if he is found to be a member of a ter-

rorist gang or terrorist organisation etc. The Act, therefore,

visualises prosecution of the terrorist or disruptionist for

offences under Sections 3 and 4 and of others only if they

are associated or related with it. That is in keeping with

the objective of the Act. The legislation has been upheld as

the legislature is competent to enact in respect of a crime

which is not otherwise covered by any Entry in List II of

the Seventh Schedule. The definition of the crime, as has

been discussed earlier, is contained in Sections 3 and 4 of

the Act and it is true that while defining the crime it is

open to the legislature to make provision which may serve

the objective of the legislation and from a wider point of

view one may say that possession of such arms, the use

of which may lead to terrorist activity, should be taken as

one of the offences as a preventive or deterrent provision.

Yet there must be some inter-relation between the two,

howsoever, remote it may be. The harshness of the provi-

sions is apparent as all those provisions of the Act for

prosecuting a person including forfeiture of property, de-

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nial of bail etc., are applicable to a person accused of pos-

sessing any arms and ammunition as one who is charged

for an offence under Sections 3 and 4 of the Act. It is no

doubt true that no one has justification to have such arms

and ammunitions as are mentioned in Section 5, but un-

justifiable possession does not make a person a terrorist

or disruptionist. Even under Ireland Emergency Provisions

Act, 1978 on which great reliance was placed by learned

Additional Solicitor General there is no such harsh provi-

sion like Section 5. Since both the substantive and proce-

dural law apply to a terrorist and disruptionist or a terror-

ist act or a disruptive act, it is necessary, in my opinion,

that this section if it has to be immune from attack of arbi-

trariness, may be invoked only if there is some material to

show that the person who was possessed of the arms in-

tended it to be used for terrorist or disruptionist activity or

it was an arm and ammunition which in fact was used.”

(emphasis supplied)

17.He further relied upon judgment of this Court in the case of

Girdhari Parmanand Vadhava Vs. State of Maharashtra ,

(1996) 11 SCC 179, wherein it was enunciated that a crime even if

perpetrated with extreme brutality may not constitute “terrorist ac-

tivity” within the meaning of Section 3(1) of TADA. For constituting

“terrorist activity”, the activity must be intended to strike terror in

people or a section of the people or bring about other consequences

referred to in Section 3(1). Terrorist activity is not confined to un-

lawful activity or crime committed against an individual or individ-

uals but it aims at bringing about terror in the minds of people or

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section of people disturbing public order, public peace and tran-

quillity, social and communal harmony, disturbing or destabilising

public administration and threatening security and integrity of the

country.

18.Therefore, it will be very dangerous for us, in the absence of

legislative attempt, to provide with an opinion to define whether

any activity falls within the definition of terrorist activity or not.

After all the legislative intent behind enactment of any statute shall

prevail. This Court had opined in the words of Justice Dr. A. S.

Anand in Hitendra Vishnu Thakur & Ors. Vs. State Of

Maharashtra & Ors., (1994) 4 SCC 602, that

“7. 'Terrorism' is one of the manifestations of increased

lawlessness and cult of violence. Violence and crime

constitute a threat to an established order and are a revolt

against a civilised society. 'Terrorism' has not been

defined under TADA nor is it possible to give a precise

definition of 'terrorism' or lay down what constitutes

'terrorism'. It may be possible to describe it as use of

violence when its most important result is not merely the

physical and mental damage of the victim but the

prolonged psychological effect it produces or has the

potential of producing on the society as a whole. There

may be death, injury, or destruction of property or even

deprivation of individual liberty in the process but the

extent and reach of the intended terrorist activity travels

beyond the effect of an ordinary crime capable of being

punished under the ordinary penal law of the land and its

main objective is to overawe the Government or disturb

harmony of the society or "terrorise" people and the society

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and not only those directly assaulted, with a view to

disturb even tempo, peace and tranquillity of the society

and create a sense of fear and insecurity. A 'terrorist'

activity does not merely arise by causing disturbance of

law and order or of public order. The fall out of the

intended activity must be such that it travels beyond the

capacity of the ordinary law enforcement agencies to

tackle it under the ordinary penal law. Experience has

shown us that 'terrorism' is generally an attempt to

acquire or maintain power or control by intimidation and

causing fear and helplessness in the minds of the people

at large or any section thereof and is a totally abnormal

phenomenon. What distinguishes 'terrorism' from other

forms of violence, therefore, appears to be the deliberate

and systematic use of coercive intimidation. More often

than not, a hardened criminal today takes advantage of

the situation and by wearing the cloak of 'terrorism', aims

to achieve for himself acceptability and respectability in

the society because unfortunately in the States affected by

militancy, a 'terrorist' is projected as a hero by his group

and often even by the misguided youth. It is therefore,

essential to treat such a criminal and deal with him

differently than an ordinary criminal capable of being tried

by the ordinary courts under the penal law of the land.

Even though the crime committed by a 'terrorist' and an

ordinary criminal would be overlapping to an extent but

then it is not the intention of the Legislature that every

criminal should be tried under TADA, where the fall out of

his activity does not extend beyond the normal frontiers of

the ordinary criminal activity. Every 'terrorist' may be a

criminal but every criminal cannot be given the label of a

'terrorist' only to set in motion the more stringent

provisions of TADA. The criminal activity in order to invoke

TADA must be committed with the requisite intention as

contemplated by Section 3(1) of the Act by use of such

weapons as have been enumerated in Section 3(1) and

which cause or are likely to result in the offences as

mentioned in the said section.”

Page 19 19

19.We would, therefore, make it abundantly clear that these

relied cases do not help the respondent to make a case under the

provisions of TADA in the absence of intention to cause terror in

the minds of people or strike on them with terror. Therefore, in our

considered opinion, the approvals granted by the Superintendent of

Police (PW-26) and the IG, CBI (PW-28), in the facts and

circumstances of the present case, were completely invalid lacking

compliance of the requirements prescribed under Section 20-A of

TADA. Albeit, it can rightly be opined that prior approvals were bad

in law in the present case, nevertheless, it cannot be said that the

entire proceedings against the accused-appellants under TADA,

were vitiated in the light of the judgment in the case of

Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State

of Guajrat, (2012) 11 SCC 606, wherein this Court observed:

“33. Now we proceed to consider the submission

advanced by the State that non-compliance with Section

20-A(1) i.e. absence of approval of the District

Superintendent of Police, is a curable defect under Section

465 of the Code. We do not have the slightest hesitation in

holding that Section 465 of the Code shall be attracted in

the trial of an offence by the Designated Court under

TADA. This would be evident from Section 14 (3) of TADA

which reads as follows:

‘14.Procedure and powers of Designated Courts.-

(1)-(2) …

(3) Subject to the other provisions of this Act, a

Page 20 20

Designated Court shall, for the purpose of trial of any

offence, have all the powers of a Court of Session

and shall try such offence as if it were a Court of

Session so far as may be in accordance with the

procedure prescribed in the Code for the trial before a

Court of Session.’

34. From a plain reading of the aforesaid provision it is

evident that for the purpose of trial Designated Court is a

Court of Session. It has all the powers of a Court of

Session and while trying the case under TADA, the

Designated Court has to follow the procedure prescribed in

the Code for the trial before a Court of Session. Section

465 of the Code, which falls in Chapter 35, covers cases

triable by a Court of Session also. Hence, the prosecution

can take shelter behind Section 465 of the Code. But

Section 465 of the Code shall not be a panacea for all

error, omission or irregularity. Omission to grant prior

approval for registration of the case under TADA by the

Superintendent of Police is not the kind of omission which

is covered under Section 465 of the Code. It is a defect

which goes to the root of the matter and it is not one of the

curable defects.”

20.We are therefore of this considered opinion that as a result of

illegal sanction order the criminal proceedings for prosecution

under the TADA Act are vitiated entirely. Suffice it to say that

Learned Court under the TADA Act has grossly erred in taking

cognizance of the case.

21.Mr. M. Karpaga Vinayagam, learned senior counsel appearing

for the appellants advanced three main submissions, apart from

Page 21 21

challenging the sanction granted by the competent authority which

has already been discussed in earlier paragraphs. He submitted

that the eye-witnesses and PW-7 are not reliable. He further

submitted that A-1’s confession is not voluntary and there has

been non-examination of material witnesses. Concluding with his

arguments he would say that the Identification Parade is a farce

and that there are infirmities in the depositions of the Investigating

Officers being PW-2, PW-24 & PW-30.

22.We have reappreciated the evidence on record and considered

the arguments advanced by Mr. P.K. Dey, learned counsel

appearing for the respondent-CBI. Though we find little difficulty in

accepting the view taken by the learned Designated Court in its

entirety, as it arises from several notable facts, it is not and cannot

be disputed that the deceased was killed at the entrance of his

house. The post-mortem report being Ext.P-14, which was duly

proved by PW15 - Dr. Thiagarajan, also mentioned the cause of

death being shock and haemorrhage due to multiple cut and stab

injures sustained by the deceased somewhere near 5 O’clock in the

morning on 10.10.1994. We have noticed that PW-1 was never

called for identification of the accused-appellants.

Page 22 22

23.Apropos question of reliability of the test identification parade

in the present case, when admittedly accused were already seen

through newspaper, we emphasise on few judgments of this Court

before coming to the answer to this question. This Court in the

case of Suresh Chandra Bahri Vs. State of Bihar , 1995 Supp

(1) SCC 80, has held:

“ 78….From this point of view it is a matter of great

importance both for the investigating agency and for the

accused and a fortiori for the proper administration of

justice that such identification is held without avoidable

and unreasonable delay after the arrest of the accused

and that all the necessary precautions and safeguards

were effectively taken so that the investigation proceeds

on correct lines for punishing the real culprit. It would, in

addition, be fair to the witness concerned also who was a

stranger to the accused because in that event the chances

of his memory fading away are reduced and he is

required to identify the alleged culprit at the earliest

possible opportunity after the occurrence. It is in adopting

this course alone that justice and fair play can be assured

both to the accused as well as to the prosecution. But the

position may be different when the accused or a culprit

who stands trial had been seen not once but for quite a

number of times at different point of time and places

which fact may do away with the necessity of TI parade.”

24.We accept the contention of the learned senior counsel for the

appellants that the test identification parade was a farce as after

the pictures of the accused had been published in the newspaper,

the identification parade which is a very weak piece of evidence

Page 23 23

should not have been conducted.

25.Before concluding this judgment, it would be necessary to

consider the most important factor to which our attention was

invited by the learned counsel for the respondent, i.e., confession

of accused and unearthing of conspiracy and recovery of evidences

thereafter. Having regard to observation recorded so far, emphasis

on the judgment delivered by this Court in State (NCT of Delhi)

Vs. Navjot Sandhu, (2005) 11 SCC 600, is necessary wherein it

was observed:

“28. In the Privy Council decision of Pakala Narayana

Swami vs. Emperor, AIR 1939 PC 47, Lord Atkin eluci-

dated the meaning and purport of the expression 'confes-

sion' in the following words:

"[A] confession must either admit in terms the offence,

or at any rate substantially all the facts which consti-

tute the offence. An admission of a gravely incriminat-

ing fact, even a conclusively incriminating fact is not of

itself a confession…"

29. Confessions are considered highly reliable because no

rational person would make admission against his inter-

est unless prompted by his conscience to tell the truth.

"Deliberate and voluntary confessions of guilt, if clearly

proved are among the most effectual proofs in law". (vide

Taylor's Treatise on the Law of Evidence Vol. I). However,

before acting upon a confession the court must be satisfied

that it was freely and voluntarily made. A confession by

hope or promise of advantage, reward or immunity or by

force or by fear induced by violence or threats of violence

cannot constitute evidence against the maker of confes-

Page 24 24

sion. The confession should have been made with full

knowledge of the nature and consequences of the confes-

sion. If any reasonable doubt is entertained by the court

that these ingredients are not satisfied, the court should

eschew the confession from consideration. So also the au-

thority recording the confession, be it a Magistrate or some

other statutory functionary at the pre-trial stage, must ad-

dress himself to the issue whether the accused has come

forward to make the confession in an atmosphere free

from fear, duress or hope of some advantage or reward in-

duced by the persons in authority. Recognizing the stark

reality of the accused being enveloped in a state of fear

and panic, anxiety and despair while in police custody,

the Evidence Act has excluded the admissibility of a con-

fession made to the police officer.”

In a subsequent para of this relied judgment this Court further

observed:

“32. As to what should be the legal approach of the Court

called upon to convict a person primarily in the light of the

confession or a retracted confession has been succinctly

summarized in Bharat vs. State of U.P. [1971 (3) SCC

950]. Hidayatullah, C.J., speaking for a three-Judge

Bench observed thus:

Confessions can be acted upon if the court is satisfied that

they are voluntary and that they are true. The voluntary

nature of the confession depends upon whether there was

any threat, inducement or promise and its truth is judged

in the context of the entire prosecution case. The

confession must fit into the proved facts and not run

counter to them. When the voluntary character of the

confession and its truth are accepted, it is safe to rely on

it. Indeed a confession, if it is voluntary and true and not

made under any inducement or threat or promise, is the

most patent piece of evidence against the maker.

Retracted confession, however, stands on a slightly

different footing. As the Privy Council once stated, in India

it is the rule to find a confession and to find it retracted

later. A court may take into account the retracted

Page 25 25

confession, but it must look for the reasons for the making

of the confession as well as for its retraction, and must

weigh the two to determine whether the retraction affects

the voluntary nature of the confession or not. If the court is

satisfied that it was retracted because of an after-thought

or advice, the retraction may not weigh with the court if

the general facts proved in the case and the tenor of the

confession as made and the circumstances of its making

and withdrawal warrant its user. All the same, the courts

do not act upon the retracted confession without finding

assurance from some other sources as to the guilt of the

accused. Therefore, it can be stated that a true confession

made voluntarily may be acted upon with slight evidence

to corroborate it, but a retracted confession requires the

general assurance that the retraction was an after-thought

and that the earlier statement was true. This was laid

down by this Court in an earlier case reported

in Subramania Gounden v. The State of Madras(1958 SCR

428).”

26.We are of this considered opinion that the confessions of A-1

and A-6 are involuntary as they were taken in the immediate

custody of high security of CBI and a non-voluntary confession

cannot form the basis of conviction. We would like to emphasize on

another observation made by this Court in Ashrafkhan’s case

(supra):

“41. We have held the conviction of the accused to have

been vitiated on account of non-compliance with Section

20-A(1) of TADA and thus, it may be permissible in law

to maintain the conviction under the Arms Act and the

Explosive Substances Act but that shall only be possible

when there are legally admissible evidence to establish

those charges. The Designated Court has only relied on

the confessions recorded under TADA to convict the

Page 26 26

accused for offences under the Arms Act and the

Explosive Substances Act. In view of our finding that

their conviction is vitiated on account of non-compliance of

the mandatory requirement of prior approval under Section

20-A(1) of TADA, the confessions recorded cannot be

looked into to establish the guilt under the aforesaid

Acts. Hence, the conviction of the accused under Sections

7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of

the Explosive Substances Act cannot also be allowed to

stand.”

27.We would also like to recapitulate observation of this Court in

Ashrafkhan’s case (supra) which reads as follows:

“44. The facts of the case might induce mournful reflection how

an attempt by the investigating agency charged with the duty

of preventing terrorism and securing conviction has been

frustrated by what is popularly called a technical error. We

emphasize and deem it necessary to repeat that the gravity of

the evil to the community from terrorism can never furnish an

adequate reason for invading the personal liberty, except in

accordance with the procedure established by the Constitution

and the laws.”

28.In the light of the judgments cited above and the material on

record, we have no hesitation in holding that whole proceedings in

the present case were vitiated. Therefore, the order of conviction

and sentence passed by the Designated Court is hereby quashed

and set-aside. The appellants herein be released forthwith, if not

required in any other case.

29.In the result, the appeals filed by the accused-appellants are,

accordingly, allowed.

Page 27 27

. . . . . . . . . . . . . . . . . . . . .J

(Pinaki Chandra Ghose)

….. . . . . . . . . . . . . . . . . . . J

(Rohinton Fali Nariman)

New Delhi;

April 27, 2017.