TMI Blog2017 (4) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... i, Manish, Shilpi Dey, Reena Roy and Mukesh Kumar Maroria, Advs. JUDGMENT Pinaki Chandra Ghose,. 1. These two appeals are directed against the judgment and order dated 8th 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 (hereinafter referred to as Indian Penal Code ) 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 10th October, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 149 of Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of ₹ 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 Indian Penal Code and Under Section 3(4) of TADA and sentenced to undergo life imprisonment and also to pay a fine of ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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 clear that the Sanctioning Authority has not applied his mind to the records in its entirety and granted sanction only after considering certain documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in the case of Kalpnath Rai v. State (Through CBI) (1997) 8 SCC 732, as follows: 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 Section of the people or to alienate any Section of the people or to adversely affect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intends to overawe the Government or create terror 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 becomes 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 country. Thus a terrorist or a disruptionist and a person possessing 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 prosecuted for abetting the offence if he assists or communicates 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 terrorist gang or terrorist organisation etc. The Act, therefore, visualises prosecution of the terrorist or disruptionist for offences Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or bring about other consequences referred to in Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or Section of people disturbing public order, public peace and tranquillity, 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 and Ors. v. State of Maharashtra and 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 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 identific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following words: [A] confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating 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 interest 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 confession. The confession should have been made with full knowledge of the nature and consequences of the confession. 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 authority reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Accused for offences und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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