MOHD. MAQBOOL TANTRAYversusSTATE OF J & K

                       (2010] 3 S.C.R. 589


                 MOHD. MAQBOOL TANTRAY                             A
                                  v.
                       STATE OF J & K
              (Criminal Appeal No. 342 of 2009)

                      FEBRUARY 4, 2010·
                                                                   B
     [HARJIT SINGH BEDI AND A.K. PATNAIK, JJ.]

     Terrorist and Disruptive Activities (Prevention) Act, 1987:

      s.3(2)(ii) and s.364 rlw s.120-8 RPG - Out of several C
persons prosecuted for abduction and murder of an MLA, only
 3 brought to trial - Two acquitted - Only one convicted u/s
 3(2)(ii) TADA and s.3641120-8 RPG - Sentence of 14 years
 imprisonment uls 3(2)(ii) of TADA and 5 years uls 3641120-
8 RPG imposed - Plea that in view of the convict having o
shown his remorse while making the confession before the
 SSP, the sentence be reduced to the period already
undergone - HELD: It is indeed true that a conviction under
the TADA is a very serious matter and calls for a deterrent
punishment - At the same time, the facts of each case cannot E
be ignored - In the instant case, all the co-accused of the
appellant have either been acquitted or have not been brought
to trial - Appellant has expressed his regrets for the
circumstance which had ultimately led to the murder of the
deceased - Trial court has given a positive finding that the F
appellant was only involved with the abduction part and had
nothing to do with the murder of the MLA - Appellant has
undergone more than 11 Yz years of sentence after facing
protracted trial spread over almost 20 years - He had been
released on bail for a period of 1 Yz years and during this G
period his conduct and behaviour had remained exemplary
- In the circumstances, while dismissing the appeal, sentence
reduced from 14 years to that already undergone - Sentence
 Judgment received on 13.4.2010
                                  589                              H
    590       SUPREME COURT REPORTS               [2010] 3 S.C.R.


A - Ranbir Penal Code - s.364 rlw s.120-8. [para 4, 5 and 7]

        Gurdeep Singh alias Deep vs. State (Delhi Admn.) 1999
    (2) Suppl. SCR 693 = (2000) 1 SCC 498, relied on.

                          Case Law Reference:
B
          1999 {2) Suppl. SCR 693       Relied on     Para 4
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 342 of 2009.

C       From the Judgment & Order dated 11.2.2009 of the 3rd
    Additional Sessions Judge, Jammu (Designated Court under
    TADA) in File No. 20/Ch.

       Mohan Jain, ASG, E.C. Agrawala, Amit Kumar Sharma,
D Nishant Katoch, Dinesh Thakur, Rohini Mukherjee, Prabhat
  Kumar, Vibhav Mishra, T.V. Ratnam, Arvind Kumar Sharma,
  Jaspreet Aulakh, P.K, Dey, B. Krishna Prasad, Anis
  Suhrawardy, S. Mehdi lmaz, Tabreez Ahmed for the appearing
  parties.

E         The following Order of the Court was delivered

                               ORDER

         1. We have heard the learned counsel for the parties at
F   length.

       2. The appellant Mohd. Maqbool Tantray along with 17
  others was tried for offences punishable under Sections 302/
  392/364 etc. of the Ranbir Penal Code [for short 'the RPC'] and
  Section 3(1) of the Terrorist and Disruptive Activities
G (Prevention) Act, 1987 [hereinafter referred to as 'the TADA']
  for being involved in the abduction and murder of former MLA
  Mir Mustafa on the 25th March, 1990. Eleven of the accused
  were discharged on the statement made by the Public
  Prosecutor, three died during the pendency of the trial and one
H absconded and three were brought to trial including the
  MOHD. MAQBOOL TANTRAY v. STATE OF J & K                    591


appellant. In the trial three co-accused of the appellant herein    A
were acquitted but the court relying on the evidence of various
prosecution witnesses and in particular on the confessional
statement given by the appellant to the SSP Mr. A.K. Suri,
convicted him for offences punishable under Section 364 read
with Section 1208 of the RPC and sentenced him to undergo           B
rigorous imprisonment for five years and to pay a fine of Rs.
1000/-, in default to undergo imprisonment for six months and
under Section 3(2)(ii) of TADA to undergo rigorous
imprisonment for 14 years and to pay a fine of Rs. 5000/-, in
default of payment of fine to further undergo imprisonment for      c
a period of one year, both the sentences to run concurrently.
The present appeal has been filed impugning the judgment of
the trial court as the appeal under TADA lies directly to the
Supreme Court.

      3. Mr. Agrawala, the learned counsel for the appellant has    D
 not argued the matter on merits but has pointed out that in view
of the above facts more particularly that eleven out of 18
accused had been discharged and the two co-accused· of the
appellant herein had been acquitted vide the impugned
judgment and the additional fact that the trial had continued for   E
almost twenty years and that the appellant had also undergone
almost 11112 years of the sentence and that he had made a
confession before the SSP which showed his remorse it was
appropriate that the sentence be reduced to that already
undergone.                                                          F

     4. For the proposition that in a case of a confession made
by a remorseful rependant convict some leniency in the
sentence was called for the learned counsel has placed reliance
on the judgment of this Court in Gurdeep Singh alias Deep v.        G
State (Delhi Admn.) (2000) 1 SCC 498. The learned Solicitor
General has, however, pointed out that the appellant was one
of the prime movers in the incident which had led to the death
of Mir Mustafa and as Section 2 of TADA provided for a life
sentence, the appellant had already been dealt with in a lenient
                                                                    H
    592      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A   way and no further latitude should be shown to him.

       5. It is indeed true that a conviction under the TADA is a
  very serious matter and calls for a deterrent punishment. At the
  same time, the facts of each case cannot be ignored. We see
  that all the co-accused of the appellant have either been
8
  acquitted or have not been brought to trial. We also see from
  the record that the appellant has expressed his regrets for the
  circumstance which had ultimately led to the murder of Mir
  Mustafa. The trial court has given a positive finding that the
  appellant was only involved with. the abduction part and had
C nothing to do with the murder of the MLA. We also see from
  the record that appellant has undergone more than 11 % years
  of the sentence after facing protracted a trial spread over almost
  20 years. We have also been told by Mr. Agrawal that he had
  been released on bail for a period of 1% years and during this
D period his conduct and behaviour had remained exemplary. We
  also notice that in Gurdip Singh's case (supra) this Court
  observed as under:

                 "25. Before concluding we would like to record our
E         conscientious feeling for the consideration by the
          legislature, if it deem fit ad proper. Punishment to an
          accused in criminal jurisprudence is not merely to punish
          the wrongdoer but also to strike a warning to those who
          are in the same sphere of crime or to those intending to
          join in such crime. This punishment is also to reform such
F
          wrongdoers not to commit such offence in future. The long
          procedure and the arduous journey of the prosectuion to
          find the whole truth is achieved sometimes by turning on
          the accused as approvers. This is by giving incentive to
          an accused to speak the truth without fear of conviction.
G         Now turning to the confessional statement, since it comes
          from the core of the heart through repentance, where such
          accused is even ready to undertake the consequential
          punishment under the law, it is this area which needs some
          encouragement to such an accused through some respite
H
  MOHD. MAQBOOL TANTRAY v. STATE OF J & K                 593


       may be by reducing the period of punishment, such         A
       incentive would transform more such incoming accused to
       confess and speak the truth. This may help to transform
       an accused to reach the truth and bring to an end
       successfully the prosecution of the case."
                                                                 8
     6. We find that the aforesaid observations would apply to
the present case as well.

     7. We, accordingly, while dismissing the appeal, reduce
the sentence from 14 years to that already undergone.

       8. The appeal stands disposed of accordingly.

R.P.                                     Appeal disposed of.