Appeals Filed Under Arms Act / Explosive Substances Act Part-6 Reportable in the Supreme Court of India
Sanjay Dutt (A-117) Vs. The State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1060 of 2007]
Yusuf Mohsin Nulwalla (A-118) Vs. The State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1102 of 2007]
Kersi Bapuji Adajania (A-124) Vs. The State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1687 of 2007]
[Criminal Appeal No. 596 of 2011]
[Criminal Appeal No. 1104 of 2007]
[Criminal Appeal No. 1026 of 2012]
[Criminal Appeal No. 1001 of 2007]
[Criminal Appeal No. 392 of 2011]
Sanjay Dutt (A-117) Vs. the State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1060 of 2007]
Yusuf Mohsin Nulwalla (A-118) Vs. The State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1102 of 2007]
Kersi Bapuji Adajania (A-124) Vs. The State of Maharashtra, through CBI (STF), Bombay
[Criminal Appeal No. 1687 of 2007]
P. Sathasivam, J.
1) Mr. Harish Salve, Mr. Surendra Singh, Mr. B.H. Marlapalle learned senior counsel appeared for A-117, A-118, A-124 respectively and Mr. Raval, learned ASG duly assisted by Mr. Satyakam, learned counsel appeared for the respondent-CBI.
2) The above said appeals are directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 31.07.2007respectively by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.Charges:
3) A common charge of conspiracy was framed against all the co-conspirators including the appellants. The relevant portion of the said charge is reproduced hereunder: "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1-A), (1-B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance." In addition to the above-said principal charge of conspiracy, the appellants were also charged on other counts which are as under: Sanjay Dutt (A-117): At head Secondly;
The appellant, in pursuance of the aforesaid criminal conspiracy and during the period from January, 1993 to April, 1993, agreed to keep in his possession and acquired 3 AK-56 rifles and its ammunition, one 9mm pistol and its cartridges and hand-grenades, unauthorisedly, which were part of the consignments smuggled into the country by Dawood Ibrahim Kaskar and his associates knowingly and intentionally that these were smuggled into the country for the purpose of committing terrorists acts and that he thereby committed an offence punishable under Section 3(3) of TADA. At head Thirdly; The appellant, by doing the aforesaid act, unauthorisedly, in Greater Bombay which is specified as a Notified Area under Clause (f) of Sub Section (1) of Section 2 of TADA and thereby committed an offence punishable under Section 5 of TADA. At head
Fourthly;
The appellant possessed the above mentioned arms and ammunitions with an intent to aid terrorists and contravened the provisions of the Arms Act, 1959 and the Arms Rules, 1962, the Explosive Substances Act, 1908 and the Explosives Rules, 2008 and thereby committed an offence punishable under Section 6 of TADA. At head Fifthly; The appellant, by doing the aforesaid act, committed an offence punishable under Sections 3 and 7 read with Sections 25(1- A) (1-B)(a) of the Arms Act, 1959.Yusuf Nulwalla (A-118): At head Secondly; The appellant acquired AK-56 Rifles and its carridges and one 9mm pistol and its cartridges which were smuggled into the country for committing terrorist acts and destroyed the said AK-56 Rifle with the assistance of Kersi Adajania (A-124) and entrusted him the 9mm pistol and its cartridges for safe custody and thereby committed an offence punishable under Section 3(3) of TADA. At head
Thirdly; The appellant acquired the abovementioned arms and ammunitions from the house of Sanjay Dutt (A-117) and possessed the same, unauthorisedly, in a notified area of Greater Bombay and thereby committed an offence punishable under Section 5 of TADA. At head
Fourthly;
The appellant acquired and possessed the abovementioned arms and ammunitions and failed to give information to Police/Magistrate with an intent to aid terrorists and thereby committed an offence punishable under Section 6 of TADA. At head Fifthly; The appellant, by doing the aforesaid act, committed an offence punishable under Sections 3 and 7 read with Sections 25(1- A), (1-B)(a) of the Arms Act, 1959.
At head Sixthly; The appellant caused destruction of the abovementioned arms and ammunitions with an intention to screen him and other co-conspirators from legal punishment and thereby committed an offence punishable under Section 201 of the IPC . Kersi Adajania (A-124): At head Secondly;
The appellant aided and abetted Yusuf Nulwalla (A- 118) in destroying AK-56 rifle and disposing of 9mm pistol and its cartridges which were smuggled into the country for committing terrorist acts and thereby committed an offence punishable under Section 3(3) of TADA.
At head Thirdly; In the first week of April, 1993, the appellant had in his possession one AK-56 rifle, one 9 mm pistol and its rounds in a notified area of Bombay and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly; The appellant possessed the said arms and ammunitions with an intention to aid terrorists and thereby committed an offence punishable under Section 6 of TADA. At head Fifthly; The appellant, by possessing the abovementioned arms and ammunitions, unauthorisedly, committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.
At head Sixthly; The appellant caused destruction of the abovementioned AK-56 rifle, 9mm pistol and its ammunitions which were smuggled into the country for commission of terrorist acts with the intention of screening himself and the other co-conspirators from legal punishment and thereby committed an offence punishable under Section 201 of the IPC .
4) The appellants have been convicted and sentenced for the above said charges as under: Conviction and Sentence: Sanjay Dutt (A-117): A-117 has been convicted for the offence punishable under Sections 3and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 6 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. However, the appellant was not found guilty of all other offences for which he was charged and, accordingly, acquitted for all the said offences. Yusuf Mohsin Nulwalla (A-118):(i) A-118 has been convicted for the offence punishable under Sections 3and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to RI for 5 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months.(ii) The appellant has been further convicted for the offence punishable under Section 201 of IPC and sentenced to suffer RI for 2 years. However, the aforesaid accused being found not guilty of all other offences for which he was charged at trial.Kersi Bapuji Adajania (A-124):(i) A-124 has been convicted for the offence punishable under Sections 3and 7 read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959 and sentenced to suffer RI for 2 years along with a fine of Rs. 25,000/-, in default, to suffer further RI for a period of 6 months.(ii) The appellant has been further convicted for the offence punishable under Section 201 of IPC mentioned at head sixthly and sentenced to suffer RI for 2 years. However, the aforesaid accused also being not found guilty of all other offences for which he was charged at trial.
Brief Facts:-
5) Before adverting to the detailed analysis of the evidence and the contentions urged, the story of the prosecution is as under:
(a) Babri Masjid at Ayodhya was demolished on 06.12.1992. After its demolition, violence broke out throughout the country. Tiger Memon (AA)and Dawood Ibrahim (AA), a resident of Dubai, in order to take revenge of the said demolition, formulated a conspiracy to commit terrorist act in the city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and ammunitions from abroad. Tiger Memon, in association with his men, particularly, the accused persons, received those arms and ammunitions through sea-coasts of Bombay. The evidence on record establishes that the said consignment was a result of a conspiracy between Dawood Ibrahim Kaskar, Mohammed Dosa and Tiger Memon (all three absconding accused).
(b) On 15.01.1993, Samir Hingora (A-53), Hanif Kandawala (A-40), Ibrahim Musa Chauhan@Baba (A-41) and Abu Salem (A-139) - then absconding, came to the residence of the appellant (A-117) at Pali Hill, Bandra, Bombay and told him that they would deliver the weapons tomorrow i.e., on 16.01.1993.On 16.01.1993, A-53, A-41 and A-139 delivered 3 AK-56 Rifles and 250 rounds of ammunitions and some hand-grenades at the residence of A-117. On18.01.1993, out of the above said 3 AK-56 Rifles and ammunitions, 2 rifles and some ammunition were taken away by co-accused persons including one Mansoor Ahmed (A-89).
(c) On 12.03.1993, bomb explosions took place at various places in Bombay causing death of 257 persons, injuries to 713 and destruction of property worth about Rs. 27 crores.
(d) On 18.04.1993, A-89 was taken in police custody whereas A-117 was arrested from the Mumbai International Airport on 19.04.1993 upon his arrival from Mauritius. On the same day, at about 15:30-15:40 hrs., he made a statement to the police that the rifle and the pistol and its rounds thereof have been kept with A-118 and that he would identify him and his house in Dongri, Umarkhari. He also led the police party to the house of A-118 at 15:45 hrs. When whereabouts of A-118 were searched, it was found that he was detained by the Dongri Police Station in connection with then on-renewal of Arms licence.
(e) A-118 was summoned from Dongri Police Station and produced before DCB-CID. He made a statement mentioning the name of A-124 and led the police party to his house.
(f) During investigation, A-124 produced a spring and a rod remanent of the burnt AK-56 and also made a further statement regarding 9mm pistol and led the police party to A-125. A-125 made a statement and after that the police party proceeded to the house of A-120.
(g) A-120 produced a bag containing box wherein the pistol and its cartridges were found. His statement was recorded and the articles were seized and a Panchnama was drawn.
(h) All the above facts form part of the complaint culminated into the registration of a Local Act Case (LAC) bearing No. 21 of 1993 in respect of the above said 5 persons, namely, A-117, A-118, A-124, A-125 and A-120. The said complaint mentioned that the investigation being carried out in furtherance of C.R. No. 70 of 1993. The sequence of events after the arrest of A-117 till the recovery of pistol from A-120 formed part of an unbroken chain inseparably connected with each other.
(i) On 22.04.1993, Mr. Krishan Lal Bishnoi, the then DCP (PW-193), who was investigating Worli Blast from 13.03.1993 was withdrawn from investigation. On 26.04.1993, A-117 expressed his desire to make a confession and, accordingly, he was produced before PW-193, who after recording the preliminary statement (First part), awarded him a period of48 hours for cooling off.
(j) On 27.04.1993, the confession of A-118 was recorded by Mr. Bishnoi(PW-193) in first part and a further time for reflection was awarded to him.
(k) On 28.04.1993, PW-193 recorded the second part of the confession of A-117. Similarly, on 29.04.1993, the confession of A-118 was recorded by PW-193 which remained un-retracted.
(l) On 03.05.1993, A-117 was sent to the judicial custody. On05.05.1993, A-117 filed a writ petition before the Bombay High Court and the High Court released him on interim bail with the direction that the bail granted to A-117 would continue till the filing of charge sheet in the Designated Court and after that the said Court would consider his bail application.
(m) Between 18th and 20th May, 1993, and 24th and 26th May, 1993,confessions of A-53 and A-89 respectively were recorded by PW-193.
(n) On 04.11.1993, a consolidated charge sheet was filed against all the accused persons including the appellants (A-117, A-118 and A-124). On19.06.1994, A-117 applied for bail before the Designated Court. By order dated 04.07.1994, the Designated Court dismissed the said application.
(o) Against the said order, A-117 filed a special leave petition before this Court and prayed for grant of bail. After hearing the bail petition, this Court, by order dated 18.08.1994 in Sanjay Dutt Vs. State (I), (1994)5 SCC 402, referred the matter to the Constitution Bench on the question of interpretation and construction of the provisions of TADA, namely, Section5 as well as Section 20. By order dated 09.09.1994, the said reference was answered by the Constitution Bench in Sanjay Dutt Vs. State (II), (1994) 5SCC 410. After the reference was answered, the matter was placed before the regular Bench for consideration of the bail application. By order dated 23.09.1994, this Court rejected the application for bail filed by A-117. On 09.11.1994, A-117 filed a detailed retraction.
(p) In June, 1995, in view of the directions of this Court in Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, the Central and State Government set up a Review Committee in order to individually review the cases of the accused persons involved in the Bombay bomb blasts case to consider whether or not the provisions of TADA are applicable against individual accused persons and whether or not any of the accused person sought to be entitled to bail? On 08.08.1995, the report of the Review Committee recommended that the public prosecutor, on certain parameters, may recommend certain cases for bail. The case of A-117 was one such case that was considered for grant of bail by the public prosecutor. The said report was filed by the prosecution before the trial Court on 09.08.1995.The CBI, in M.A. No. 312 of 1995, filed an application before the Designated Court stating that they have no objection for grant of bail to A-117 and 11 others.
(q) On 11.09.1995, in view of the report of the Review Committee, A-117renewed his prayer for bail before the Designated Court but the Designated Court again dismissed the said application. In September, 1995,challenging the said order, A-117 filed Criminal Appeal No. 1196 of 1995before this Court and prayed for grant of bail. On 16.10.1995, this Court granted bail to him till the completion of his trial. (1995 (6) SCC 189).
(r) By order dated 28.11.2006 and 31.07.2007, the appellants (A-117, A-118 and A-124) were convicted and sentenced by the Designated Court as mentioned earlier. Evidence
6) The prosecution relied on the following evidence which is in the form of:-
(i) the evidence of their own confessions;
(ii) confessions made by other co-conspirators; (co-accused)(iii) Deposition of Prosecution witnesses, viz., - Shri Krishan Lal Bishnoi(PW-193), the then DCP, Pandharinath H. Shinde (PW-218)- who was on guard duty at the bungalow of Sunil Dutt, Manohar Vasudev Shirdokar (PW-219)-Sr. Inspector of Police, Suresh S. Walishetty (PW-680), Rajaram Ramchandra Joshi (PW-475), API, Panch Witness Shashikant Rajaram Sawant (PW-211),Gangaram Bajoji (PW-265)-independent witness and Karmegam Algappan, PW-472attached with computer cell of MTNL, Malabar Hill and;(iv) documentary evidence. Submissions made by Mr. Harish Salve, learned senior counsel for the appellant (A-117)
7) Mr. Harish Salve, learned senior counsel for A-117, at the foremost, submitted that reliance on the confessional statement made by A-117 is impermissible. He pointed out that the contention that the judgments of this Court have held that the prosecution can rely on the confession of an accused made before a police officer in every case where the accused is charged of a TADA offence, as long as the trial is joint, has been misconceived. He also pointed out that if the language of the provision sled to a situation that a confession to the police becomes admissible irrespective of the fate of the TADA charge, then it would lead to invidious discrimination between the accused, who were charged (but acquitted) under TADA along with other offences and those who were accused only of non-TADA offences.
8) Mr. Harish Salve further pointed out that in Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat (2005) 2 SCC 409, it was contended before the Court that "rigours of Section 12 are discriminatory and attract the wrath of Articles 14 and 21 of the Constitution as it empowers the Designated Court to try and convict the accused for the offences committed under any other law along with the offences committed under TADA thereby depriving the rights available to the accused under the ordinary law." This contention was rejected by holding that "Section 12 is to take care of the offences connected with or incidental to terrorist activities. The other offences being connected and inextricably intertwined with the terroristact.
"9) He further pointed out that a Bench of five Judges of this Court in Sanjay Dutt Vs. State (1994) 5 SCC 410, had observed in paragraph 14 that "the construction made of any provision of this Act must therefore be to promote the object of its enactment to enable the machinery to deal effectively with the persons involved in, and the associated with, terrorist and disruptive activities while ensuring that any person not in that category should not be subject to the rigors of the stringent provisions of the Act. It must, therefore, be borne in mind that any person who is being dealt with and prosecuted in accordance with the provisions of the TADA must ordinarily have the opportunity to show that he does not belong to the category of persons governed by TADA. Such a course would permit exclusion from its ambit of persons not intended to be covered by it " In paragraph 17, this Court cited with approval an earlier decision, viz., Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj BijayaI, (1990) 4 SCC 76 in which it was observed that "when a law visits a person with serious penal consequences, extra care must be taken to ensure that those whom the Legislature did not intend to become by the express language of the Statute are not roped in by stretching the language of the law." This Court read down the provisions of Section 5 of TADA and held that the presumption under the said section in relation to possession of weapons was a rebuttable presumption and an accused could always establish his innocence in relation to that statute.
10) According to him, only where the transactions in respect of which an accused is convicted are interrelated inextricably with the transactions which fall under TADA, then Section 12 would enable the prosecution to rely upon the confession of the accused made to a police officer. He further pointed out that it would be a travesty to apply this principle in the present case.
11) By poining out the confession of the appellant (A-117), learned senior counsel contended that even if we believe the statements made, it would simply establish a case of violation of the Arms Act, there is no suggestion of any terrorist act. On the contrary, the act was the resultant of the personal as well as the security need of the family of the appellant. He further contended that judicial notice must be taken of the state of affairs in Bombay during the post Babri Masjid demolition period, particularly, in January, 1993. It is further pointed out that the Legislature did not intend to cover such persons ever in a law dealing with terrorism. The victims of terrorism of a kind (vicious communal riots)cannot and should not be treated at par with perpetrators.
12) He further pointed out that the unchallenged finding of the trial Court in the present case is that the alleged acquisition of 2 illegal weapons by the appellant (A-117) was at a different point of time, much before even the conspiracy in relation to the Bombay blasts was commenced. He further contended that the provocation for the alleged acquisition was not the conspiracy or any act or omission related to the Bombay blasts, but related to an entirely different event, i.e., the riots in January 1993 and the appellant (A-117) allegedly, out of fear for his own life and for the security of his family, acquired those weapons. Under such circumstances, the question of any connection leave alone the acquisition of weapons or any act or omission relating to the Bombay blasts is conspicuous by itsabsence.1
3) With regard to the evidence in order to establish that the appellant was in conversation with Anees over phone, learned senior counsel contended that the alleged confession of Samir Hingora (A-53) as well as of Hanif Kandawala (A-40) (his partner) to the effect that the appellant (A-117) was in conversation with Anees relates to A-53's visit to the house of the appellant (A-117) on the night of 15th January whereas the call records relied on were of 16th January, 1993.
14) Learned senior counsel also pointed out that the prosecution has not appealed the findings of the Designated Court and the alleged confession which suggested that the appellant (A-117) was in conversation with Aneesis, in fact, unbelievable. One significant reason for the same is that it does not explain as to how Samir could have known that the appellant was in conversation with someone on a landline telephone which was inside his house. This attempt of the prosecution to unnecessarily create prejudice against the appellant (A-117) is baseless and, therefore, merits summary rejection. The judgment of this Court in Sanjay Dutt's case (supra) dealt with a pure interpretation of Section 5 of TADA. It clearly lays down that the possession of a weapon is not per se a TADA offence. Section 5 merely raises a presumption that a person, who is in possession of unauthorized arms or ammunitions of the specified variety, would be liable to be punished under TADA. According to him, this Court, in fact, read down the plain language of Section 5 to make it applicable only as a presumptive rule of evidence. This issue is no longer open because it has been conclusively found that the alleged acquisition of the weapon had absolutely nothing to do with any of the alleged terrorist activities of the other accused in the conspiracy. Learned senior counsel for the appellant further contended that the State has not filed an appeal in the matter, hence, stands concluded.
15) In addition to the above arguments, Mr. Surendra Singh, learned senior counsel for A-118 contended that everything was manufactured at the Crime Branch Police Station. He further contended that even if A-118 was having possession of AK 56 rifle, memorandum for the same was not signed by him and Sections 12 and 15 of TADA have no application in his case. He further submitted that his confession is hit by Section 25 of the Evidence Act, 1872 and his alleged statement is compelled one which is hit by Article 21 of the Constitution.
16) Similar to the contentions of Mr. Salve and Mr. Singh, Mr. B.H. Marlapalle, learned senior counsel for A-124 also contended that there was no constructive possession of any weapon and A-124 was not having any knowledge about it. He also contended that he was charged only under the Arms act and IPC which has nothing to do with TADA and the offence against him, if any, ought to have been referred to the normal criminal court and for that reason, the confession recorded under TADA ought to have been erased. He also very much relied on the decisions of this Court in Sanjay Dutt (supra), Prakash Kumar (supra) and Mohd. Amin Vs. CBI (2008) 15 SCC49.
17) Learned ASG met all the contentions and took us through the relevant materials relied on by the prosecution. Confessional Statement of Sanjay Dutt (A-117)
18) The confessional statement of A-117 was duly recorded under Section15 of TADA on 26.04.1993 at 15.30 hrs. (First Part) and on 28.04.1993 at1600 hrs. (Second Part) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following extracts from the confession of the appellant are pertinent:
"(i) I am having three valid license for fire arms and possess 3 fire arms as mentioned below:
(a) 270 Rifle of BRUNO make;
(b) 375 Magnum Double barreled Rifle; and (c) 12 Bore Gun of Double Barrel.
(ii) I purchased these weapons due to my fondness for hunting. I normally go for hunting with one friend of mine, viz., Mr. Yusuf Nullwala as he is an experienced hunter. I also know one friend of Yusuf Nullwala by name Kersi Bapuji Adajenia and met him three times.
(iii) In December, 1991, I had given dates for shooting to actor producer Firoz Khan for his film Yalgar. He had taken the whole unit for shooting in Dubai. During one of the shootings, Firoz Khan introduced me to one Mr. Daud Ibrahim and also to his brother Anees during another shooting session. After that, Anees used to visit us regularly during the shootings and also at the place of our stay.
(iv) Since Anees used to come frequently, I become well acquainted with him.
(v) I also know the proprietors of Magnum Video, namely Hanif Kandawala and Samir Hingora. I also signed for acting in one of their film Sanam. Samir is treasurer of Indian Motion Picture Association (IMPA). Hanif and Samir used to come quite frequently to my house for taking dates for shooting from my Secretary.
(vi) Hanif told me that if I so desire, he would make immediate arrangements to provide an automatic fire arm to me for my protection. Initially, I did not show any interest but when Hanif and Samir started repeatedly telling me to acquire a firearm from them, I gradually fell prey to their persistent suggestion and expressed my desire to Hanif and Samir. They said that they would immediately provide me with an automatic fire arm.
(vii) One day, in mid Jan., in the evening, around 9.00 to 9.30 p.m., Hanif and Samir came to my house along with one person by name Salem. I had met this Salem once or twice earlier also.
(viii) Then these 3 fellows told me that they were coming tomorrow morning with the weapons to be delivered to you. Then they went away.
(ix) Next day morning Samir, Hanif and Salem all three came to my house along with one other person who is not known to me.(x) They came in a Maruti Van and parked it in a Tin shed which is used by us for parking our vehicles. One person was sitting inside the Maruti Van. After about 15-20 min., he took out three rifles and they said it is AK-56 rifles.
(xi) I got some cloth from my house and gave it to them. Salem and the person who has come with him wrapped those rifles in the cloth and gave it to me.
(xii) When I opened and saw it, there were three rifles some magazines and rounds, they have told me that there are 250 rounds. The rounds were kept in another hand bag fetched by me.
(xiii) On seeing three rifles, I got scared and told them that I wanted only one weapon. Then Hanif and Salem told me to keep it for the time being and in case it is not required, we will take away the rest of the two weapons.
(xiv) They have also shown me some brown coloured hand-grenades and asked me whether I want that also. I do not want these grenades and you may please leave my house immediately, I told them.
(xv) I kept these rifles and ammunition in the dickey of my Fiat Car No. MMU 4372 and locked it.
(xvi) On the same night, I removed the three rifles and ammunition, kept the same in a handbag which I kept in my private hall which was on the 2nd floor of our bungalow.
(xvii) Two days thereafter, since I had considerable mental tension, I contacted Hanif Kandawala and requested him to take away the weapons. He said that he would arrange to send somebody to collect the same. After two days, Hanif Kandawala and Samir Hingora along with Salem came to my house in the evening in a car. I returned two AK-56 rifles and a part of the ammunition to them but retained one AK-56 rifle and some ammunitions with me.(
xviii) Around Sept. 1992, during one of my shooting at R.K. Studio, one Kayyum, who is a member of Dawood Ibrahim gang, who had also met me in Dubai at the time of shooting of the film Yalgar approached me with a stranger. They offered me a 9 mm pistol with ammunition. When I saw it, I liked it and had a strong desire to purchase the same. They offered it to me for a sum of Rs.40,000/-. I paid the said amount in cash to them at my house and purchased the same. I do not know the name of that person who was brought by Kayyum. However, he was aged about 35-38 years, apparently, Muslim, dark complexion, height about 5'8", fat built, moustache, medium curly hair, wearing shirt and pant. I will be able to identify him if brought before me. He also handed over 8 rounds of the said pistol.
(xix) On 2nd April, I left for Mauritious for shooting of the film 'Aatish'. There I was informed by a casual contact that Hanif and Samir have been arrested by the Bombay Police for their complicity in bomb blasts.
(xx) On hearing the news, I got frightened as these fellows had given me the AK-56 rifles and they may tell my name to the police to involve me in the bomb blasts case. I contacted my friend Mr. Yusuf Nullwala on telephone and asked him that something is lying in a black coloured bag which is kept in my hall at the second floor of my house and it should be taken away immediately and destroy the things completely which are there in the bag, otherwise, I shall be in a great trouble. By this time, the news about my possession of AK-56 rifles had appeared in the press and on coming to know about this, my father asked me about the truthfulness of this news, but I denied the same. My anxiety about the whole episode became unbearable and I decided to return to Bombay in between. My father informed my flight details to the Police and I was picked up by police as soon as I landed at Bombay and I confessed the whole things to them.
"19) The above said confession highlighted the crime for which the appellant-Sanjay Dutt has been charged. The following facts emerge from the above said confession:
i) He was already having three licensed firearms .
ii) He developed acquaintance with Anees Ibrahim - brother of Dawood Ibrahim during a film-shooting in Dubai.
iii) He expressed his desire to Samir Hingora (A-53) and Hanif Kandawala (A-40) to have an automatic fire-arm.
iv) They came with one Salem with whom Sanjay Dutt was already acquainted with and they assured him of the delivery of weapons the next day in the morning.
v) They came in the morning of 16.01.1993 with one other person and delivered 3 AK-56 Rifles and 250 rounds.
vi) After 2 days, he returned 2 AK-56 and ammunitions but retained 1 AK- 56 and some ammunition.
vii) In April, while he was shooting at Mauritius, he heard the news of the arrest of Samir and Hanif, on which, he got frightened and requested his friend Yusuf Nulwalla to destroy the weapons.
20) The appellant (A-117) not only implicates himself in the above said statement but also amongst others the appellant-Yusuf Nulwalla (A-118).The above said confession has been duly recorded by PW-193 who has proved the compliance with the provisions of law while recording the confession. The abovesaid confession is a substantive piece of evidence and it has been held in a series of judgments that the confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA. Further, the confessional statement establishes the unauthorized possession of weapons in the notified area of Bombay. Confessional Statements of co-accused:
21) The confession of the appellant (A-117) is substantiated and corroborated with the confession of other co-accused, namely, Samir Hingora(A-53), Baba @ Ibrahim Musa Chauhan (A-41), Mansoor Ahmed (A-89), Hanif Kandawala (A-40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-124)which are as under. Confessional Statement of Samir Ahmed Hingora (A-53) Confessional statement of A-53 under Section 15 of TADA was recorded on 18.05.1993 (17:00 hrs.) and 20.05.1993 (17:30 hrs.) by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
i) He started a Video Library and Mustafa Dossa @ Mustafa Majnoo (A-138) - brother of Mohd. Dossa (AA) was a member of his Video Library and he had 2-3 shops in the same market.
ii) Tiger Memon used to work with Mustafa Dossa and became a friend of A- 53.
iii) A-53 started film distribution and production business by the name of 'Magnum' in partnership with Hanif Kandawala (A-40 - since died).
iv) Anis Ibrahim (AA) became a member of his Video Library and was referred to by everyone as Anisbhai since he was the brother of Dawood Ibrahim.
v) A-53 received a payment of Rs. 21.90 lacs from Ayub Memon sent through someone on 13.03.1993 (one day after the blasts) as advance for purchasing rights of films.
vi) A-53 had visited Dubai and met Anis Ibrahim many times and sold the rights of many films to M/s Kings Video, managed by Anis. Anis also controls Al-Mansoor Video Company through Chota Rajan.
vii) On 15.01.1993, A-41 and A-139 met A-53 at his office. Anis Ibrahim called him from Dubai and said that A-41 and A-139 are his men and they have some weapons which have to be delivered to A-117 at his residence.
viii) A-53 and A-139 went to Sanjay Dutt's (A-117) house where he hugged Abu Salem and asked him about the weapons. A-117 then told A-139 to bring the weapons next day at 7 am.
ix) On 16.01.1993, A-53 led A-139 and A-41 to the house of Sanjay Dutt. A-139 and A-41 were in a blue maruti van while A-53 was in his own car.
x) At the residence of A-117, A-53 saw that the blue van was containing 9 AK-56 rifles and hand grenades and they gave 3 AK-56 rifles and some magazines to A-117. A-117 also asked for some hand grenades which were put in a black bag by A-139.
xi) A-139 kept the rifles in a fiat car belonging to A-117. The hand grenades were kept in the car of A-53 and he left the car at A-117's residence and took an auto rickshaw.
xii) A-53 collected his car from A-117's residence after 3 days when he called him and said that grenades have been taken out. Confessional statement of Baba @ Ibhrahim Musa Chauhan (A-41) Confessional statement of A-41 was recorded under Section 15 of TADA on 23.04.1993 (12:45 hrs.) and 25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay.
The said confession shows that:
(i) A-41 was introduced to Anees Ibrahim Kaskar (AA)-brother of Dawood Ibrahim and Abu Salem when he had been to Dubai and, thereafter, he developed good acquaintance with both of them.
(ii) On 15.01.993, A-139 telephoned A-41 and asked him to arrange for a garage having facility of closing it by shutter.
(iii) Abu Salem is an extortionist and worked for Anees Ibrahim.
(iv) Thereafter, A-139 went to the office of A-41 and inquired if he had received a phone call from Anees Ibrahim. On replying in the negative, A-139 went to a nearby STD booth and called Anees and then made A-41 talk to him, at that time, A-41 told him that the garages, as required, cannot be arranged by him.
(v) Thereafter, at the behest of Anees Ibrahim (AA), A-41 along with A- 139 went in search for garages in Bandra and Pali Hills area and Samir Hingora (A-53) and Hanif Kandawala (A-40) also joined them.
(vi) Since they did not find any garage, A-139, A-53 and A-41 informed the same to Anees over phone who was in Dubai and it was decided that the work of finding out the garage would be carried out the next day. In the meanwhile, A-139 told A-41 that he will keep 2 to 3 AK-56 rifles with him for 2/3 days.
(vii) On the next day i.e. 16.01.1993, A-139 went to the house of A-41 and told him to take a white coloured Maruti van bearing registration number of Gujarat, which was parked near the Arsha Shopping Centre, and to reach the office of Magnum Video. Accordingly, he went to the said place and from there he along with A-139 and A-53, went to the house of A-117.
(viii) At that time, A-139 introduced A-41 to A-117.
(ix) A-41 parked the above white coloured Maruti Van which he had driven to reach the house of Sanjay Dutt in his garage.
(x) There were 9 AK-56 rifles, 80 hand grenades, 1500/2000 cartridges and 56 magazines in the cavities beneath the rear seat of the aforesaid Maruti Van as well as inside the lining near the front and rear side doors, out of which, 3 rifles, 9 magazines, 450 bullets and 20 hand grenades were asked to be kept by A-139 in Sanjay Dutt's Fiat car.
(xi) Accordingly, A-41 shifted the cartridges and magazines to a sports bag and kept it in Sanjay Dutt's car.(xii) A-53 packed the above mentioned 20 grenades in another sports bag and kept it in Sanjay Dutt's car and gave another long sports bag to A-41 in which he filled 3 rifles, 16 magazines, 25 hand grenades and 750 cartridges. A-41 took the said bag to his house and hid it beneath his bed and on the next day, A-41 loaded all the bullets in the magazines of the rifles. Confessional Statement of Manzoor Ahmed Sayyed Ahmed (A-89) Confessional statement of A-89 under Section 15 of TADA was duly recorded on 24.05.1993 (11:15 hrs.) and 26.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193) the then DCP, Zone III, Bombay.
The said confession reveals as under :
i) A-89 was a good friend of Abu Salem.
ii) He owns a Maruti 1000 bearing No. MP 23 B-9264.
iii) On 22/23rd January, 1993, A-89 met A-139. A-139 gave the keys of his car to A-41 who kept a black bag of weapons in it.
iv) A-139 and A-89 then went to the first floor of 22 Mount Mary, Vidhyanchal Apts. They gave the bag to an old lady, viz., Zaibunisa Anwar Kazi (A-119) and told her that the arms were for the purpose of causing riots, and were sent by Anees Ibrahim - brother of Dawood Ibrahim.
v) A-119 looked at the contents of the bag and then kept it at her residence.vi) After 8 days, A-139 called A-89 again and together with A-40, they went to the residence of A-117 where he gave them a blue rexin bag and a carton.
vii) Abu Salem and A-89 then went to the house of A-119 and gave the carton and the bag to her. Abu Salem told A-119 to keep those weapons safely as they were to be used for orchestrating bomb blasts.
22) The above said confessional statements of the co-accused clearly establish the case against the appellant-Sanjay Dutt and also corroborate with each other in material particulars. The following facts emerge from the above said confessional statements:-
(i) The appellant had acquired 3 AK-56 rifles and its ammunitions unauthorized.
(ii) Samir Hingora (A-53), Hanif Kandawala (A-40) and Salem (A-139)provided the above said arms and ammunitions to the appellant at his residence.
(iii) On being frightened after seeing the weapons, the appellant contacted Hanif Kandawala (A-41) and requested him to take away the weapons.
(iv) Abu Salem came after few days and the appellant returned 2 AK-56rifles and also ammunitions, but retained one AK-56 rifle and some of its ammunitions. Confessional Statement of the appellant - Yusuf Mohsin Nulwalla (A-118)
23) Confessional statement of A-118 under 15 of TADA was recorded on27.04.1993 at (14:20 hrs.) and 29.04.1993 at (16:00 hrs.) by Shri K.L.Bishnoi, the then DCP, Zone-III, Bombay. The following extracts from the confession of the appellant are pertinent:- "Somewhere around the year, 1970, I came in contact with one person by name Azhar Hussain and later on I became very friendly with him. He was cousin of Sanjay Dutt through him I met Sanjay Dutt and developed friendship with him as he was also fond of hunting, fishing and staying in camp life. After this myself and Sanjay Dutt used to go out for hunting with other friends occasionally. I came in contact with Sanjay Dutt's father and other family members due to my friendship with Sanjay Dutt and his cousin Azhar Hussain. Later on Sanjay Dutt had started taking on drugs and because of this he used to remain out off from us and started avoiding me. However, my contact with Sanjay's father and other family members was as it is and they normally used to ask me to convince Sanjay to give up the drugs but my convincing and persuasion did not help him." "Somewhere in the year 1984, Sanjay has taken me out to one of his friend by name Tariq Ibrahim's place in Kanpur. From there his friend had taken us out of his farm in Tarai and we stayed there for one week. During the stay, I casually mentioned to Tariq Ibrahim that I am quite fond of guns but I am not getting arms license. Then he told me that don't worry my brother is Supdt. of Police at Ratlam and he will get you arms license as and when you wanted. Later on, I contacted his brother Asif Ibrahim, who was Supdt. of Police, Ratlam to give me arms license, he did it and subsequently he gave me two more arms licenses.
After getting these licenses, I was gifted two guns by Sunil Dutt out of which one was 12 Bore DBBL gun and another was 22 Rifle. I purchased the 3rd weapon, which is single barrel 375 Magnum Rifle." "In the meanwhile, I had come in contact with one Kesi Bapuji Adajenia, who was also in steel fabrication business and was also an old hunter so we became friends. He also used to give me sub contracts for steel fabrication. I had introduced him to Sanjay Dutt also and later on he went with us for hunting to a place near Surat once." "Later on Sanjay Dutt became quite popular in Hindi movies and most of the times he used to remain busy in his shootings.
Many times, I also used to get to the place for shooting to meet Sanjay Dutt. He had taken me to Bangalore, Mysore, Ooty, Kodai Kanal and various other places during this outdoor shooting to these places. Normally, I used to meet Sanjay two to three times in a week either at his house or at the place of shootings." "In the first week of April, he left for Mauritius and I got busy with my normal business. Then one day, I read in newspaper the news item that "Sanjay dutt is in possession of AK-56 Rifles." In the same day evening, I received a telephone call at my residential telephone from Sanjay dutty, who was speaking from Mauritius.
He told me that there is something which is kept in a black coloured bag kept in his room at his residence (i.e. 58, Pali Hill Bandra, Bombay-50) and I shall take that bag from his room and destroy the things inside it immediately otherwise he will be in a great trouble. Next day morning, I went to Sanjay's residence and took the black bag from his second floor room and opened it there only. When I opened it I found it containing one AK-56 rifle, two empty magazines and approximately two hundred fifty rounds of AK-56, one pistol and one loaded magazines of pistol. I took out the AK-56 rifle there only and cutted it in pieces with a hexa, which I had taken along with me then I put all the cut pieces in the bag and came to my friend Kersi Bapuji Adajenia's house as he used to keep all the tools of his steel fabrication in the godown in his house. I told him the whole story and also that Sanju is in great trouble, so I required your help in melting and destroying the cutted pieces of AK- 56 rifles.
Both of us came to his godown and I tried to melt the cutted pieces of AK-56 with the help of cutter, but could not succeed, then my friend Adajenia melted all the pieces of AK-56 rifle with the help of gas cutter. After that I gave the pistol to Kersi Bapuji Adajenia asked him to burn it also after sometime. I collected the melted remains of AK-56 Rifle and threw it in the sea at Marine Drive. Next day morning, I kept the rounds of AK-56 in two separate bundles wrapped in papers and threw it in the sea in front of Oberoi Towers and returned to my home. Next day in the early morning, I got telephone call from Sanjay Dutt at my residence No. 3755092 and I informed him that your work is done and had normal talk with Sanjay Dutt. After this, I spoke to Kersi Bapuji Adajenia once and told him that you burn the pistol also but he told me that you do no worry about this. I will take care of this. Then I stayed at my house and did my normal business till I was picked up by the Police.
"24) From the above said confession, the following facts emerge :
i) Yusuf Mohsin Nulwalla is an old and well known friend of Sanjay Dutt.
ii) In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.iii) On reaching there, he discovered AK-56 and a pistol and ammunition.
iv) He tried to destroy them.
v) He took all these objects to a friend of his, namely, Kersi Bapuji Adajania (A-124)
vi) A-124 helped him to destroy the same but he retained the pistol with him.
vii) Upon being reminded about destroying the pistol, A-124 assured A-118 that he would take care of it.
25) In view of the above, it is seen that the appellant (A-118), upon instructions, caused destruction of evidence related to an offence, which were unauthorisedly possessed automatic firearms/weapons in a notified area, attracting the provisions of the Arms Act. The confession of A-118not only involves and implicates him, but also implicates Kersi Adajania (A-124). The confession of A-118 corroborates with the confession of A-117 as well as A-124.Confessional Statement of the appellant - Kersi Bapuji Adajania (A-124)
26) The confessional statement of A-124 under Section 15 of TADA was recorded on 27.04.1993 (15:10 hrs.) and on 30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP, Zone-III, Bombay. The following extracts from the confession of the appellant-Kersi Bapuji Adajenia are relevant:-
"I am Kersi Bapuji Adajenia, age 63 years. I stay at 605, Karim Manzil, JSS Road, Bombay-2 with my family. I normally take contracts for steel fabrications and the work is done at the sites of the parties only. I normally keep the equipments and the tools for steel fabrications at the temporary godown in my house and I take these equipments to the sites as and when it is required. Due to the work load, I have purchased two or three sets of all the equipments and tools. Whenever there is a heavy work load, I give the excess work on sub-contracts to other persons. Sometimes, I provide my own tools and equipments to sub-contractors. Yusuf Mohsin Nullwala was my one such sub-contractor. I had come in contact with him about ten years back. Since then, I used to give him sub-contracts regularly. During the days of my youth, I used to be very fond of hunting and used to go out for hunting occasionally with my friends. But I had given up this hobby (hunting) since 1969 onwards. This, Yusuf Nullwalla was also very fond of hunting and he used to talk a lot about hunting and about his friend cine actor Sanjay Dutt. He introduced me with him about seven years back and they had taken me out once for hunting to a place near Surat, I stayed with Sanjay, Yusuf and three - four their other friends there for two days and we all came back. After that I met Sanjay Dutt for two or three times more.
Somewhere around the end of first week of April, 1993, one day Yusuf Mohsin Nullwalla came to my house around 10.00 a.m. in the morning, he was having a black coloured Rexin bag hung to his shoulder with him and he said to me that Sanjay Dutt had telephoned him saying that on AK-56 rifle and other things are lying at this house and police had come to know about his and he is in great trouble and he has asked me to collect it and destroy it, so I had gone to his house and collected it and I have also cut it into pieces and now I want gas cutting set to completely destroy it, then he showed me the cut pieces of AK-56 rifle by opening the bag. Since I have read about Sanjay Dutt's possession of AK-56 rifle and police being after him in the newspaper about a day or two earlier. So initially, I told him that I do not went to get involved in this thing. Then Yusuf said to me that in case he goes out to some other place for destroying it he is likely to be caught and requested me to again to give my gas cutter, so I agreed. Then he went to my godown and started destroying the cut pieces of AK-56 rifle with the help of gas cutter. I also went to the place to see that no mishap takes place. When I went there I saw that he was fumbling with the gas cutter and was in no position to destroy the pieces properly.
Then I adjusted the gas and started melting the pieces of AK-56 rifle myself with the gas cutter. These parts were having lot of grease on them so lot of smoke was coming out. Somehow, I managed to destroy all the parts of AK-56 which he had brought in the bag. Then he took out one pistol from the bag and wanted me to destroy that along but I was quite tired and had some breathing problem due to the smoke which was coming out while the pieces of AK-56 reifle were being destroyed. So I told him to leave the weapon with me and I will destroy it some other time.
Then he collected the meted remains of AK- 56 rifle in a plastic bag, gave the pistol to me for destruction and he went away. After two days, he telephoned me and enquired whether I have destroyed pistol or not. I told him not to worry about that. As I was to go to Calcutta on 9th April morning so I telephoned and called a friend of mine, by name Rusi Framrose Mulla to my house. He came to my house next day morning and I gave the pistol to him and asked to keep it in sae custody as I was going out to Calcutta. I did not tell him anything about the history of the pistol and told him that I will collect it as soon as I come back from Calcutta.
27) From the above confession, the following facts emerge:-
(i) A-118 was a sub-contractor of A-124. A-124 was also acquainted with A-117. All three of them were fond of hunting and, in fact, went together for hunting once.
(ii) A-124 had his workshop in his house where he was keeping all his tools including the gas cutter.
(iii) In or around April, A-118 contacted A-124 in order to destroy an AK- 56 and a pistol belonging to Sanjay Dutt (A-117).
(iv) A-124 permitted him to do so.
(v) A-124 personally destroyed AK-56.
(vi) A-124 kept with himself the pistol.
28) The above said confession establishes the charge framed against A-124that he knowingly destroyed evidence related to an offence. A-124 was thereafter in unauthorized possession of the fire-arm. The above said confession also corroborates in material particulars, the confession of A-118.
29) The above said confessions of the appellants, viz., A-117, A-118 and A-124 have been recorded by PW-193, who has proved that the said confessions were recorded after following the requirements of the provisions of Section15 of TADA. It is relevant to point out that notwithstanding vigorous cross-examination of the witness (PW-193), he stood firmly without being shaken. A long line of arguments was placed before the Designated Court attacking the voluntariness of the confession on various occasions, which had been considered in detail by the trial Court and we fully agree with the same. Law relating to Confessions under TADA
30) It is contended on behalf of the appellants that their confessional statements, and the confessional statements of the co-accused relied upon by the prosecution against them, are confessions recorded by a police officer, and it is hence not proper to base the conviction on the basis of the said confessions under Section 15 of TADA. Section 15 of TADA reads asunder: 15. Certain confessions made to police officers to be taken into consideration.-
(1) Noth withstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or [co- accused, abettor or conspirator] for an offence under this Act or rules made there under: Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
31) In Jayawant Dattatray Suryarao Vs. State of Mharashtra, (2001) 10 SCC109, this Court considered in detail the evidentiary value and admissibility of a confessional statement recorded under Section 15 of TADA and held that it is settled legal position that a confessional statement recorded by a police officer is in fact, substantive evidence, and that the same can be relied upon in the trial of such person or of a co-accused, an abettor or a conspirator, so long as the requirements of Section 15 and of the TADA rules are complied with. It was observed: "60. Confessional statement before the police officer under Section 15 of the TADA is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules.
The police officer before recording the confession has to observe the requirement of sub-section (2) of Section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed."It was further held by this Court, that minor irregularities do not make the confessional statement inadmissible as substantive evidence and observed as under: "50. In this view of settled legal position, confessional statement is admissible in evidence and is substantive evidence. It also could be relied upon for connecting the co-accused with the crime. Minor irregularity would not vitiate its evidentiary value."
32) In Ravinder Singh @ Bittu Vs. State of Maharashtra, (2002) 9 SCC 55,this Court, while considering the reliability of a confession recorded under Section 15 of TADA against the maker, as well as the co-accused, held that after State Vs. Nalini, Kalpnath Rai Vs. CBI, it does not reflect the correct position of law. It was observed: "13. In Kalpnath Rai v. State (through CBI) it was observed that the confession made by one accused is not substantive evidence against a co-accused. It has only a corroborative value. In the present case, we are, however, primarily concerned with the confession made by the maker i.e. the appellant himself. Besides this confession, there is also a confession made by co-accused Nishan Singh which too implicates the appellant in commission of the offence of the bomb blast in the train. The observations made in Kalpnath Rai case were considered in State through Supdt. of Police, CBI/SIT v. Nalini, a decision by a three-Judge Bench.
It was held that the confession recorded under Section 15 of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of it but also against its co- accused. In this view, the observations in Kalpnath Rai case do not represent the correct position of law. 17. It is thus well established that a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration. Here, we are concerned primarily with the confessional statement of the maker. The weight to be attached to the truthful and voluntary confession made by an accused under Section 15 of the TADA Act came to be considered again in a recent three-Judge Bench decision in Devender Pal Singh v. State of NCT of Delhi.
It was held in the majority opinion that the confessional statement of the accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. 18. There can be no doubt that a free and voluntary confession deserves the highest credit. It is presumed to flow from the highest sense of guilt. Having examined the record, we are satisfied that the confession made by the appellant is voluntary and truthful and was recorded, as already noticed, by due observance of all the safeguards provided under Section 15 and the appellant could be convicted solely on the basis of his confession.
"33) In Mohmed Amin Vs. Central Bureau of Investigation, (2008) 15 SCC 49,it was observed: "28. In Devender Pal Singh case majority of three-Judge Bench made a reference to Gurdeep Singh case and Nalini case and held (at SCC pp. 261-62, para 33) that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the prosecution to prove that all the conditions specified in that section read with Rule 15 of the Rules have been complied with and once that is done, it is for the accused to show and satisfy the court that the confession was not made voluntarily. The Court further held that the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. However, as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence. 29. In Jameel Ahmed case a two-Judge Bench after discussing, considering and analysing several precedents on the subject, including Devender Pal Singh case, culled out the following propositions: (Jameel Ahmed case, SCC pp. 689-90, para
35)
"(i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made there under, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient t
