Holding

In TADA cases with a strong prima facie case, bail must ordinarily be denied and the trial should be concluded expeditiously.

Summary

The appellants, accused under the Terrorist and Disruptive Activities (Prevention) Act (TADA) for allegedly undergoing terrorist training in Pakistan, providing monetary assistance and possessing a large quantity of arms, appealed to the Supreme Court against the denial of bail. They contended that no overt act was proved, the confessional statements recorded were unreliable, and that recovery of arms alone could not sustain a conviction. The State argued that a strong prima facie case existed, witnesses were yet to be examined, and releasing the accused could jeopardise the trial and state security. The Court held that, in TADA cases involving serious allegations, bail should ordinarily be refused where a prima facie case is made out and the trial’s integrity may be compromised. Consequently, the appeals were dismissed and the designated trial judge was directed to conclude the trial within six months.

Issues considered

The appropriateness of granting bail to accused under TADA where a prima facie case exists
The admissibility and reliability of confessional statements recorded under TADA
Whether detailed reasons must be given in a bail order without prejudicing the accused
The need for expeditious trial in terrorism-related cases

Legislation cited

Arms Acts. 25(J)(b), s. 25(J)(c), s. 27, s. 29
Indian Evidence Act, 1872s. 30, s. 32(1)
Indian Penal Code, 1860s. 120(A), s. 120(B), s. 121, s. 122, s. 123
Terrorist and Disruptive Activities (Prevention) Act, 1987

Subjects

bailTADAterrorismconfessional statementsevidencearms possessiontrial expeditioussecurity of state

Judgment

f AFZALK.HAN @ BABU MURTUZAK.HAN PATHAN A
v.
STATE OF GUJARAT

MAY 17, 2007

[S.B. SINHA AND MARKANDEY KATJU, JJ.] B

)
Bail-Entitlement to, in case of TADA detenus-One accused allegedly
went to Pakistan as part of a group for training in terrorist activities-
Another accused provided monetary help to the group and was also found C ·
in possession of large quantity of arms-Held: Ordinarily, bail application,
in a case of this nature, which involves the security of the State should be
rejected-It is very difficult to say at this stage as to whether the accused are
parties to a larger conspiracy or not-Strong prima facie case made out
against the accused-Their release at this juncture may hamper smooth
conduct of trial since main witnesses are yet to be examined-Designated 0
Judge directed to conclude trial as expeditiously as possible-Terrorist and
Disruptive Activities (Prevention) Act, 1987-Penal Code, 1860-ss. 120(B),
121, 12l(A), 122 and 123-Arms Act-ss. 25(J)(b), 25(J)(c), 27 and 29.

Bail application-Duty of the Court-Held: Courts should assign E
reasons while allowing or refusing an application for bail-But detailed
reasons touching the merit of the matter should not be given, which may
prejudice the accused

According to the prosecution, the two Appellants were involved in
I
terrorist activities. It is alleged that one Appellant went to Pakistan as part F
of a group for training in terrorist activities, while the other Appellant provided
monetary help to the group and had also been in possession of a large quantity
of arms which was recovered pursuant to confessional statements of various
persons.

In appeals to this Court, it is contended that the Appellants are entitled G
to grant of bail inter alia on the ground that no overt acts has been attributed
to them; that the confessional statements recorded were not confidence
_;.· inspiring and that recovery of arms by itself would not lead to any conviction
under TADA

73
74 SUPREME COURT REPORTS [2007] 7 S.C.R.

A Dismissing the appeals, the Court
,.
HELD: 1.1. The value of a confessional statements made before a high
ranking officer under the Special Acts and the precautions which are
necessary to be taken tht;refrom which are exceptions to the provisions of ~

B
the general statute namely Indian Evidence Act had been considered by this
Court in some of its decisions. The question as to where irregularity, if any '
had been committed in recording the confessional statement of the accused
or the same otherwise would not inspire confidence before a court of law is a
matter which would fall for consideration of the Trial Judge. An irregularity
made in recording a statement may be held to be curable and admissible in ,_
evidence. (Paras 8, 12, and 13J [77-D; 81-A, BJ
c
1.2. Courts should assign reasons while allowing or refusing an
application for bail. But detailed reasons touching the merit of the matter
should not be given, which may prejudice the accused. What is necessary is
that the order should not suffer from non-application of mind. At this stage a
detailed examim~tion ofevidence and elaborate documentation of the merit of
D
the case is not required to be undertaken. [Para 16J [82-C, DJ

1.3. Ordinarily, a bail application, in a case of this nature, which involves
_,
the security of the State should be rejected. In a case of this nature, it is very
difficult to say at this stage as to whether they are parties to the larger
E conspiracy or not. In the evidence, it is alleged that one of the appellants had
gone for training to Pakistan, another had provided money and he had been
in possession of a large quantity of arms. A strong prima facie case has been
made out against the appellants. Their release at this juncture may hamper
the smooth conduct of trial since main witnesses are yet to be examined. One
of the appellants hails from a different State. It may be difficult to secure his
F presence, if released on bail at this crucial juncture. In this view of the matter,
the interest of justice shall be subserved ifthe Designated Judge is directed
to conclude the trial as expeditiously as possible and preferably within six
months from the date of c6mmunication of this order.
[Paras 17, 20, and 21) (82-E; 83-A, B, C, DJ
G
State a/Tamil Nadu through Superintendent of Police CBIIS!Tv. Na/ini
and Ors., A.I.R. (1999) SC 2640, relied on.

People's Union for Civil Liberties and Anr v. Union of India, (2004] 9
SCC 580, State of Maharashtra v. Sitaram Popat Veta/ and Anr., (2004] 7
H SCC 521; Kartar Singh v. State of Punjab, (1994] 3 SCC 569; Simon and '
Ors v. State of Karnataka, (2004J 1SCC74; S.N. Dube v. N.B. Bhoir, [2000)
AFZALKHAN@ BABU MURTUZAKHAN PA THAN v. STATE OF GUJARAT (S.B. SINHA, J.) 75

~
2 SCC 254; Hardeep Singh Sohal and Ors. v. State of Punjab through CBI, A
i [2004) 11 SCC 612; State (NCT of Delhi) v. Navjot Sandhu, [2005) 11 SCC
600); Shaheen Welfare Association v. Union ofIndia and Ors., (1996) 2 SCC
616 and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11
sec 600, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 757 of B
2007.

From the Judgment and Order dated 08.09.2006 of the High Court of
j
Gujarat at Ahmedabad in Criminal Appeal No. 334 of2005.

Kamini Jaiswal, Sunita Dwivedi, Nitya Ramakrishnan, M.A. Chinnasamy c
for the Appellant.

Hemantika Wahi, Pinky Behera and V. Madhukar for the Respondent.

The Judgment of the Court was delivered by
D
S.B. SINHA, J. 1. Leave granted.

•· 2. These appeals arise out of the judgments and orders dated 8.9.2006
as also the judgment and order dated 10.8.2006 passed by the High Court of
Gujarat at Ahmedabad in Criminal Appeal No. 334 of2005 and Criminal Appeal
No. 751 of 2006 respectively whereby and whereunder the bail petitions filed
E
by both the appellants were dismissed. A First Information Report was lodged
on or about 4.4.2003 for commission of an alleged offence under Section
120(8), 121, 12l(A), 122 and 123 of the Indian Penal Code, 1860 and Section
25(l)(b), 25(l)(c), 27 and 29 of the Arms Act in the D.C.B. Police Station,
Ahmedabad. The names of the appellants, however, did not figure in the said F
First Information Report. The first informant was one Tarun Kumar Amrutlai
Barot, Police Inspector, Ahmedabad Crime Branch. An information was received
;.. that after the Godhra massacre some youths from Ahmedabad City had gone
to Pakistan for obtaining training for carrying out terrorist activities with a
view to take revenge of loss of lives and properties caused to the Muslim
G
community in communal riots which had taken place therein and they have
returned back to India after training. An investigation was carried out. On the
allegations that he was a party to the conspiracy, Appellant Afzal Khan was
arrested on 15.4.2003. We may notice that a First Information Report almost
on the same terms was registered in Hyderabad on or about 19.4.2003 wherein
also allegations had been made that a group of boys had gone to Pakistan H
76 SUPREME COURT REPORTS (2007) 7 S.C.R.
~

A for terrorist training. Appellant Saiyed Ejaz Ahmed @ Chota Ejaz who is a
resident of Hyderabad was arrested in connection with the said cas.e on
3.12.2003. During investigation of the Ahmedabad case also, Appellant Saiyed ·
ljaz Ahmed was arrested by the Gujarat Police on 14.12.2003. ~

3. A chargesheet against the first appellant Wl'lS filed on 10.9.2003 and
B a chargesheet against the second appellant was filed on 21.1.2004.

4. In both the cases, confessional statements of various persons accused
of commission of the said offence were recorded. Pursuant to such confessional
\.
statements of the appellant as also those of the co-accused, a huge quantity
of arm was recovered from ~he first appellant. The principal allegations against
c the second appellant are that he had gone to Pakistar, for training.

5. It is also not in dispute that the first appellant had moved the learned
Special Judge as also the High Court for grant of bail which had been rejected.
It now appears that charges have also been framed on 1.12.2005. ..
D
6. Ms. Kamini Jaiswal, learned counsel appearing for the first appellant
and Ms. Lata Krishnamurthy, learned counsel appearing for the second
appellant would inter a/ia submit that the appellants should have been
enlarged on bail as :-

E (i) No overt act has been attributed against them.
(ii) Confessions have been obtained subsequent to their arrest.
(fu) Recovery of any weapon by itself would not lead to any conviction
under TADA.

F (iv) Confessions of Mohammed Riyaz @ Goru, Mohammed Parvez
Abdul Kayyum Shaikh and Mohammed Yunus were recorded on
24.4.2003 in similar language and hence do not inspire confidence.
(v) Purported Confessions of two more accused had been recorded
in the year 2005 alleging that the first appellant had rendered
monetary help to the group was also recorded in similar language.
G
(vi) In view of the decisions of this Court in Shaheen Welfare
Association v. Union ofIndia and Ors., [1996] 2 SCC 616, People's
Union for Civil Liberties and Anr v. Union ofIndia, [2004) 9 SCC
580, State of Maharashtra v. Sitaram Popat Veta/ and Anr.,
[2004] 7 SCC 521, and State (NCT of Delhi) v. Navjot Sandhu .
"
H .

alias Afta11 Guru, [2005) 11 SCC 600, the appellants are entitled
AFZALKHAN@BABU MURTUZAKHANPATHAN v. STATE OF GUJARAT (S.B. SINHA, I.] 77
to grant of bail. A
7. Ms. Hemantika Wahi, learned counsel appearing on behalf of the
respondent, on the other hand, brought to our notice that the trial has already
commenced and two witnesses have been examined. It was pointed out that
as some other co-accused had moved this Court, wherein the original records
had been called for, the designated court could not proceed with the trial, but B
as now the original records have since been received by the learned Special
Judge, all endeavours would be made to complete the trial as expeditiously
as possible.

8. The validity of Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA) came up for consideration before this Court in Kartar Singh v. C
State ofPunjab, (1994) 3 SCC 569. Therein inter a/ia the validity of provisions
in regard to the exceptions made to Sections 25 and 26 of the Indian Evidence
Act by· reason thereof had been upheld. At this stage, it is not desirable,
although called upon to do so by the learned counsel, to go into the merit
of the matter so as to prejudice the case of either of the parties in the main D
trial. The value of a confessional statements made before a high ranking
officer under the Special Acts and the precautions which are necessary to be
taken therefrom which are exceptions to the provisions of the general statute
namely Indian Evidence Act had been considered by this Court in some of
its decisions. We may notice some of them.
E
9. In Simon and Ors v. State of Karnataka, [2004] l SCC 74, this Court
held:-

"22. It is the duty of the recording officer to ensure that the confession
is made voluntarily and out of free will by the accused·without any
pressure. Except the omnibus statement about the general practice F
which was being followed by PW l 08, there is no evidence of any
question or attempt being made by the officer to satisfy himself that
the confession was being made voluntarily. This factor becomes, on
the facts and circumstances of the case, very important since
immediately after the arrest, the accused was produced and the person G
actively associated with the recording of statement was none other
than the investigating officer who by nature of things is interested in
the success of the prosecution case. Recording of confessional
statement is not a mechanical exercise. A duty has been cast and
considerable arriount of confidence ~as been reposed in a senior
officer under Section 15 of the TADA Act in giving him the duty to G
78 SUPREME COURT REPORTS (2007] 7 S.C.R.

A record the·confession and making such a confession before a police
officer admissible in evidence... "

10. In S.N. Dube v. N.B. Bhoir, [2000] 2 SCC 254, it was held:-

"3 l. As regards the breach of Rule 15(3) it has been held that Shinde
B did not write the certificates and the memorandums in the same form
· and terms as are prescribed by that rule. It was submitted by the
learned counsel for the respondents that the certificates and
memorandums have not been recorded by Shinde in identical terms
and as Rule 15 is held mandatory the trial court was right in holding
them inadmissible for non-compliance with that mandatory requirement
c Therefore, the question to be considered is whether the certificate and
the memorandu~ are required to be written by that rule in the same
form and terms: What Rule 15(3)( b) requires is that the police officer
should certify under his own hand that

"such confession was taken in his presence and recorded by him and
D that the record contains a full and true account of the confession
made by the person".
+
According to that rule the memorandum should be to the following
effect:

E "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 voluntarily
made. It was taken in my presence and hearing and recorded by me
and was read over to the person making it and admitted by him to be
correct, and it contains a full and true account of the statement made
F by him."

Writing the certificate and making the memorandum· are thus made
mandatory to prove that the accused was explained that he was not
bound to make a confession and that if he made it it could be used
against him as evidence, that the confession was voluntary and that
G
it was taken down by the police officer fully and correctly. These
matters are not left to be proved by oral evidence alone. The
requirement of the rule is preparation of contemporaneous record
regarding the manner of recording the confession in the presence of
the person making it. Though giving of the statutory warning,
H ascertaining the voluntariness of the confession and preparation of a
AFZALKHAN@BABU MURTUZAKHAN PA THAN'" STATE OF GUJARAT (S.B. SINHA, J.) 79
contemporaneous record in the presence of the person making the A
~
confession are mandatory requirements of that rule, we see no good
reason why the form and the words of the certificate and memorandum
should also be held mandatory. What the mandatory requirements of
a provision are cannot be decided by overlooking the object of that
provision. They need not go beyond the purpose sought to be
achieved. The purpose of the provision is to see that all formalities B
are performed by the recording officer himself and by others to ensurei

full compliance with the procedure and seriousness of recording a
confession. We fail to appreciate how any departure from the form or
the words can adversely affect the object of the provision or the
person making the confession so long as the court is able to conclude c
that the requirements have been substantially complied with. No public
purpose is likely to be achieved by holding that the certificate and
memorandum should be in the same form and also in the same terms
,. as are to be found in Rule 15(3)( b ). We fail to appreciate how the
sanctity of the confession would get adversely affected merely because
the certificate and the memorandum are not separately written but are D
mixed up or because different words conveying the same thing as is
t-
. required are used by the recording officer. We hold that the trial court
committed an error of law in holding that because the certificates and
memorandums are not in the same form and words they must be
regarded as inadmissible. Having gone through the certificates and E
the memorandums made by Shinde.at the end of the confessions what
we find is that he had mixed up what is required to be stated in the
certificate and what is required to be stated in the memorandum. He
has stated in each of the certificates and the memorandums that he
had ascertained that the accused was making the confession willingly
~
and voluntarily and that he was under no pressure or enticement. It F
is further stated therein that he had recorded the confession in his
own handwriting (except in case of A-7 whose confession was recorded
with the help of a writer). He has also stated that it was recorded as I

per the say of the accused, that it was read over to the accused
..,
completely, that the accused had personally read it, that he had G
ascertained thereafter that it was recorded as per his say and that the
confession was taken in his presence and recorded by him~ It is true
that he has not specifically stated therein that the record contains "a
i>,
full and true account of the confession made". The very fact that he
had recorded the confession in his own handwriting would imply that
it was recorded in his presence and was recorded by him. So also H
80 SUPREME COURT REPORTS [2007] 7 S.C.R.

A when he stated in the certificates and memorandums that the confession
was recorded as per the say of the accused, that it was read over to "'"
him fully, that the accused himself personally read it and that he had ...
~

ascertained that it was recorded as per his say, that would mean that
it contains "a full and true account of the confession" and that the
contents were admitted by the accused. Thus, while writing the
B certificate and the memorandum what Shinde has done is to mix up
the two and use his own words to state what he had done. The only
thing that we find missing therein is a statement to the effect that he
had explained to the accused that he was not bound to make a
· confession and that if he did so the confession. might be used as
c evidence against him. Sud· a statement instead of appearing at the
end of the confession in the memorandum appears in the earlier part
of the confession in the question and answer form. Each of the
accused making the confession was explained about his right not to
make the confession and the danger of its being used against him as
evidence. That statement appears in the body of the confession but
D not at the end of it. Can the confession be regarded as not in confonnity
with Rule I5(3)( b) only for that reason? We find no good reason to
-;
hold like that. We hold that the trial court was wrong in holding that
there was a breach of Rule I 5(3) and, therefore, the confessions were
inadmissible and bad."
E I I. In Hardeep Singh Soha/ and Ors. v. State of Punjab through CBI,
[2004] I I SCC 6I2, it was held:-

"I7. Ext. PAA does not contain such a certificate having been given
by PW 34. It is true that PW 34 had put certain questions to the
accused as to whether he was aware that the statement which he
F
wants to make could be used against him and on the basis of the same
he will be sentenced. The officer also asked him whether there is any
pressure, fear on him and he answered in the negative. However, PW
34 did not give the certificate at the end of the confession. The
certificate should have specifically stated that he had explained to the
G person making the confession that he was not bound to make the
confession and, if he does so, the confession he may make may be
used against him and that he believed that this confession was
voluntarily made and it was taken in his presence and recorded by him
and was read over to the person making it and admitted by him to be
..
,
correct, and it contained a full and true account of the statement made
H
AFZALKHAN@BABUMURTUZAKHANPATHAN 1•. STATE OF GUJARAT [S.B. SINHA, J.) 81

by him." A
12. Thus, the question as to where irregularity, if any had been committed
in recording the confessional statement of the accused or the same otherwise
would not inspire confidence before a court of law is a matter which in our
opinion would fall for consideration of the learned Trial Judge.
B
13. An irregularity made in recerding a statement may be held to be
curable and admissible in evidence. [See State of Tamil Nadu through
Superintendent ofPolice CB!IS!Tv. Nalini and Ors., A.LR. (1999) SC 2640].

14. Strongly relying upon the decision of this Court in State (NCT of
Delhi) v. Navjot Sandhu, [2005] 11 SCC 600, however, it was submitted that C
under a Special Statute like POTA or TADA confession ofa co-accused could
not be taken into consideration even for the purpose of Section 30 of the
Indian Evidence Act. It is not necessary to examine that aspect of the matter
at this stage.

15. In Navjot Sandhu (supra) this Court held D

"39. The crucial expression used in Section 30 is "the Court may take
into consideration such confession" (emphasis supplied). These words
imply that the confession of a co-accused cannot be elevated to the
status of substantive evidence which can form the basis of conviction E
of the co-accused. The import of this expression was succinctly
explained by the Privy Council in Bhuboni Sahu v. R. 23 ·in the
following words: (AIR p. 260)

"[T]he court may take the confession into consideration and thereby,
no doubt, makes its evidence on which the court may act; but the F
section does not say that the confession is to amount to proof.
Clearly there must be other evidence. The confession is only one
element in the consideration of all the facts proved in the case; it can
be put into the scale and weighed with the other evidence . "

(emphasis supplied)" G
However, it was held:-

"50. We are, therefore, of the view that having regard to all these
weighty considerations, the confession of a co-accused ought not to
be brought within the sweep of Section 32(1). As a corollary, it follows H
82 SUPREME COURT REPORTS [2007] 7 S.C.R.

A that the confessions of the first and second accused in this case
recorded by the police officer under Section 32(1), are of no avail
against the co-accused or against each other. We also agree with the
High Court that such confessions cannot be taken into consideration
by the Court under Section 30 of the Evidence Act. The reason is that
the confession made to a police officer or the confession made while
B a person is in police custody, cannot be proved against such person,
not to speak of the co-accused, in view of the mandak of Sections
25 and 26 of the Evidence Act. If there is a confession which qualifies
for proof in accordance with the provisions of the Evidence Act, then
of course, the said confession could be considered against the co-
c accused facing trial under POTA. But, that is not the case here.

As at present advised, we need not go into the said question.

16. We are not oblivious of some of the decisions of this Court that the
Courts should assign reasons while allowing or refusing an application for
D bail. But then it is trite that detailed reasons touching the merit of the matter
should not be given, which may prejudice the accused. What is necessary
is that the order should not suffer from non-application of mind. At this stage ~
a detailed examination of evidence and elaborate documentation of the i:nerit
of the case is not required to be undertaken.

E 17. Ordinarily, a bail application, in a case of this nature, which involves
the security of the State should be rejected.

18. Our attention has, however, been drawn to Shaheen Welfare
Association v. Union of India and Ors., [1996] 2 SCC 616, paragraph 13 of
the case reads as under:-
F
"13. For the purpose of grant of bail to TADA detenus, we divide the
undertrials into three (sic four) classes, namely, (a) hardcore undertrials t
whose release would prejudice the prosecution case and whose liberty
may prove to be a menace to society in general and to the complainant
t
and prosecution witnesses in particular; (b) other undertrials whose
G overt acts or involvement directly attract Sections 3 and/or 4 of the
TADA Act; (c) undertrials who are roped in, not because of any
activity •directly attracting Sections 3 and 4, but by virtue of Section
120-B or 147, IPC, and; (d) those undertrials who were found
possessing incriminating articles in notified areas and are booked
H under Section 5 of TADA."
AFZALKHAN@ BABU MURTUZAKHAN PA THAN v. STA TE OF GUJARAT [S.B. SINHA, I.) 83

19. In Nalini (supra), the learned Judges fonning the Division Bench A:,
~ differed in their opinion as to whether confession of a co-accused would be
admissible as a substantive evidence against another co-accused. We, however,
at this stage, are not concerned with such a situation.

20. In a case of this nature, it is very difficult to say at this stage as
to whether they are parties to the larger conspiracy or not. In the evidence, B
it is alleged that one of the appellants had gone for training to Pakistan,
another had provided money and he had been in possession of a large
quantity of arms. A strong prima facie case has been made out against the
appellants herein. Their release at this juncture may hamper the smooth
conduct of trial since main witnesses are yet to be examined. One of the C
appellants hails from a different State. It may be difficult to secure his presence,
if released on bail at this crucial juncture.

21. In this view of the matter, we are of the opinion that the interest of
justice shall be subserved if the learned Designated Judge is directed to
conclude the trial as expeditiously as possible and preferably within six D
months from the date of communication of this order. With this observation,
the appeals are dismissed.

. B.B.B. Appeals dismissed.

E