Sharafa Thussain Abdulrahaman Shaikh and Ors. v. State of Gujarat and Anr.

M.K. MUKHERJEE, J. The four appellants along with eight others were tried by the Designated Court, Ahmedabad for offences punishable under Sections 120-B and 307 !PC, Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' for short) and Sec-lion 4 and 6 of the Explosive Substances Act, 1908. The allegations against them were that they hatched a criminal conspiracy to let loose a reign of terror in the city of Ahmedabad by hurling bombs on the people of the Hindu community and that pursuant to the said conspiracy they hurled bombs near Sarangpur bus stand on January 27, 1993 as a result of which some members of the public sustained injuries. The trial ended in an order of conviction and sentence recorded against all the appellants under Sec-tions 120-B !PC and 3 and 5 of TADA, two of the appellants under Sections 307 !PC and 4 of the Explosive Substances Act and the other two appellants under Sections 6 of the Explosive Substances Act and of acquit-tal of the other eight. Aggrieved by their convictious and sentences the appellants have filed this appeal uuder Section 19 of TADA.

To sustain the charges levelled against the appellants, the prosecu-tion rested its case primarily upon the confessional statements made by each of the above four appellants before Shri D.B. Patel, (P.W. 6} Super-intendent of Police, C.I.D. Crime Branch, Ahmedabad which were purpor-tedly recorded under Section 15 of TADA. The Designated Court found the confessions voluntary and true and, as they corroborated each other, passed the impugned judgment against the appellants.

Under sub-section (1) of Section 15 of TADA a confession made by a person before a Police Officer not lower in rank than a Superintendent of Police is admissible notwithstanding the provisions contained in the Code of Criminal Procedure or Indian Evidence Act. Sub-section (2) thereof, read with Rule 15 of the Rules framed under TADA, lays down the procedure to be followed for recording such confession. Sub-rule (3)(b) . of Rule 15 enjoins the Police Officer, who records the confession, to make a memorandum at the end of the confession to the following effect :

"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was volutarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."

Admittedly, in none of the four confessions (Ext. 72, 73, 75 and 76), with which we are concerned in this appeal, such a memorandum finds place. The question, therefore, that falls for our consideration is what is the value of such a memorandum and, for that matter, the effect of absence thereof. The answer to this question has been given by this Court in Chandran v. State of Madras, AIR (1970) SC 1574 while dealing with sub-section (4) of Section 164 Cr.P.C. which lays down the procedure to be followed by a Magistrate in recording a confession and is pari materia with the above quoted Rule 15(3), with the following words :

"But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot on the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring com-pliance with this mandatory requirement at the close of the record-ing of the confession, hearing the confession and observing the demeanour of the person making it that the Magistrate is in the best position to append the requisite memorandum certifying· the voluntariness of the confession made before him. If, the Magistrate

recording a confession of an accused person produced·bejore him in the course of police investigation, does not, on the face of the record, certify in clear categorical tenns his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally as to such satisfaction or belief the defect would be fatal to the admissibility and use of the confession against the accused at the trial. 11 (emphasis supplied) Apart from the fact that P.W. 6 did not give any certificate, in acco~dance with the earlier quoted Rule 15(3) of his satisfaction or belief about the voluntariness of the confessions after the same were recorded, it is afso an admitted fact that while being examined as a witness he did not testify about his such satisfactiun or belief. Resultantly, in view of the ab6ve quoted observations of this Court, with which we are in complete agree-ment, the confessions allegedly made by the four appellants cannot be pressed into service to prove the charges levelled against them. Since there is no other evidence on record from which it could be said that the appellant are guilty of the offences for which they were charged and convicted the appeal must succeed.

In the result we allow this appeal, set aside the convictions and sentences of the appellant and direct that they be released forthwith, unless wanted in connection with some other case.

v.s.s. Appeal allowed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 473 of 1996.

From the Judgment and Order dated 26.2.96 of the Designated Court at Ahmedabad in C.T.C. No. 7 of 1995.

U .R. Lalit and Ms. Kamini Jaiswal for the Appellants.

Dr. N.M. Ghatate, (Ms. Rekha Pandey) for Ms. Hemantika Wahi for the Respondents.

The Jl!dgment of the Court was delivered by