Holding

The confession is admissible because the required caution was administered before the statement, and the conviction under TADA is upheld.

Summary

Nazir Ahmad Bhatti, a bank manager, was arrested after a police raid recovered a cassette, stickers and floppies allegedly containing secessionist material. He gave a confession to the Deputy Commissioner of Police (PW‑4) under Section 15 of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The appellant challenged the conviction on the ground that the required caution – that he was not bound to confess and that any confession could be used against him – was not properly administered and that the confession was involuntary. The Supreme Court held that the caution had been given before the confession, that the law does not require the caution to be repeated on each meeting, and that the procedural guidelines laid down in Kartar Singh’s case were satisfied. Consequently, the confession was admissible, the conviction under Section 4 TADA stood, and the appeal was dismissed.

Issues considered

The adequacy of the caution required under Section 15 of TADA and the Rules.
Whether a memorandum appended to the confession suffices for the caution.
Whether the guidelines from Kartar Singh v. State of Punjab must be strictly complied with for a confession to be admissible.
Whether the confession was voluntary and thus admissible as evidence.

Legislation cited

Code of Criminal Procedures. 463
Indian Penal Code, 1860s. 120B, s. 419, s. 468, s. 471
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15(1), s. 19, s. 4

Subjects

TADAconfessioncautionadmissibilityterrorist activitiesprocedural safeguardscriminal appealevidence

Judgment

NAZIR AHMAD BHAIT A
v.
STATE OF DELHI
. ..
NOVEMBER 2, 200 I

[K.T. THOMAS AND S.N. VARIAVA, JJ.] B

Terrorist and Disruptive Activities (Prevention) Act, 1987:

Section 15( 1)-Confession-Caution-Administering of-Held: The ac-
cused should be cautioned that he is not bound to make the confession and that,
if he does so, it may be used as evidence against him-There is no requirement c
· that such a cauti0n has to be administered to the accused on each day the
Officer meets him-It is enough if the caution is administered before the
accused niakes the confessional statement-Terrorist and Disruptive Activities
(Prevention) Rules.
D
The appellant-accused was convicted under Section 4 of the Terror-
ist and Disruptive Activities (Prevention) Act, 1987 and sentenced to rigor-
ous imprisonment for S years. Hence this appeal.

According to the prosecution, on a raid being conducted at the
appellant's residence an audio cassette, some stickers and two floppies E
)
were recovered. The appellant made a confessional statement under Sec-
tion 151(1) of the TADA before the Deputy Commissioner of Police (PW-
4), which showed that the appellant was involved in disruptive activities
against the sovereignty and territorial integrity of India.
F
On behalf of the appellant it was contended that PW-4 did not
administer a cantion to the appellant that he was not bound to make a
confession and that, if he did so, it could be used against him; that mere
appendage of a memorandum to this effect was insufficient.

J'
Dismissing the appeal, the Court
G

HELD : 1.1. The Deputy Commissioner of Police (PW -4) recorded in
the minutes that he cautioned the appellant that the confession could be
used against him during trial and that the appellant replied that he fully
understood the consequence of making a confession. PW -4 asked the ap- H
2 SIJPREME COURT REPORTS [2001] SUPP. 5 S.C.R.

A pellant the question whether he was aware that he was not bound to make
a confession to which the appellant answered in the affirmative, then only
he proceeded further and recorded the confession. [5-C-D]

1.2. There is no requirement that the confessor should be adminis-
tered with such caution on each day the officer meets him. It is enough that
B
the caution is administered before the accused made the confessional stale·
menL [5-G]

Kartar Singh v. State of Punjab, [1994] 3 SCC 569, referred to.

C CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 371
of 2001.

From the Judgment and Order dated 22.2.2001 of the Additional
Sessions Judge Court, New Delhi in S.C. No. 2 of 2000.

D Sushi! Kumar, R.P. Wadhwani for Varinder Kumar Sharma for the
Appellant.

Anoop Choudhary, D.S. Mehra and K.L. Janjani for the Respondent.

The Judgment of the Court was delivered by
E
THOMAS, J. The manager of a bank had undergone the entire term of
imprisonment to which he was sentenced by a designated judge under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' for short).
He still persists ;n challenging the conviction and sentence presumably because
the consequence of it would entail dislodgment from his office in the bank. He
F
was found having involved in disruptive activities ranging to defying the
sovereignty and territorial integrity of India. On the strength of the aforesaid
finding the designated judge convicted him under Section 4 of TADA and
sentenced him to rigorous imprisonment for 5 years besides a fine of Rs.5,000.
· He was also convicted on other counts of offences such as Sections 120B, 419,
G 468 and 471 of the Indian Penal Code, for which he was sentenced to impris-
onment for lesser terms. As he completed his sentence by undergoing the term
of imprisonment imposed under Section 4 of TADA he is deemed to have
undergone the sentences imposed under the other counts as well because of the
direction that the sentence of imprisonment under all the different counts shall
H run concurrently.
. NAZIR AHMAD BHATT v. STATE [THOMAS, J.] 3
This appeal under Section 19 of TADA is, therefore, as of his statutory A
right and his senior counsel (Shri Sushi! Kumar) has tenaciously pursued it
despite the advantage that he need not now go back to jail. But as the fall out
. of the convic~on would visit him with dire consequences for his service tenure,
- "'. learned senior counsel did not spare any effort to get him exonerated. We heard
the arguments with all seriousness with which learned counsel projected them.
B
Appellant belonged to the State of Jammu & Kashmir. Though he joined
Jammu & Kashmir Bank at the lower tier he was able to reach the position of
manager of the bank. During the relevant period he was manager of the Delhi
Branch (Connaught Place) of the aforesaid bank. A raid was conducted by the
police at his residence on 12.4.1995, as a sequel to some sleuth information C
· which the police succeeded in extracting from one Mohd. Yakub who was
arrested at Srinagar on 2.1.1995. In the raid, police recovered an audio cassette,
some stickers and two floppies. According to the prosecution those materials
contained exhortations made by leaders of secessionists organisations for lib-
eration of Kashmir from India. They are produced before us for our scrutiny.
We have noticed that the stickers contained such exhortations inscribed in D
English. The writings in other materials are in Urdu but we did not have the
----- advantage of getting the authenticated translation of them. Nonetheless, we are
not disposed to convict a person merely because some stickers and leaflets etc.,
containing exhortations for liberation of Kashmir, were found in his house
unless it is shown that he had a part in making or using such materials. E

> The prosecution, however, relied on a confession attributed to the appel-
lant as recorded by a Deputy Commissioner of Police (PW-4). That confession
is sought to be admitted under Section 15 of TADA. If the contents of the
documents styled as confession can be acted on as voluntary and genuine it
would provide evidence for the disruptive activities said to have been perpe- F
trated by the appellant. According to the appellant he was picked up by the
police on 8th April, 1995 and was detained in illegal custody and the statement
attributed to him was not in fact made by him. He was made to sign some
documents the contents of which were not even read out to him, according to
the appellant. G
Ext.P-25 is the document containing the confessional statement of the
appellant. The relevant portions of it are the following: Appellant was told by
one Maulana Masood· Azhar that his house at Srinagar was raided by security
forces because of his links with Harkat-ul-Ansar (a terrorist organisation) and
he escaped from being caught. Later, one Mohd. Asraf Dhar told him that he H
4 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A was a worker of the terrorist organisation and -he was assigned the task of
raising funds for carrying out the activities connected with the liberation of
Kashmir. It was the said Mohd. Asraf Dhar who gave him audir cassette
containing inflarnmalory speeches of Maulana Masood Azhar exhorting the
Muslims to fight against Indian people' for separating Jarnmu and Kashmir
.. •
from the rest of India. After hearing the speeches from the cassette appellant
B
agreed to work for Harkat-ul-Ansar. A code name was given to the appellant
as "Abid". Money would be despatched to him through "Hawala", for the
various operations planned by Harkat-ul-Ansar. He was to·exchange messages
with Mohd. Asraf Dhar. A total of Rs.25 iakhs was received by him from
Sharjah in about seven instalments through Hawala for being used in connec-
c tion with terrorist activities. He was allowed to take Rs.25 thousand for his
personal expenses. He also got other floppies as well as literature of Harkat-
ui-Ansar containing anti-India propaganda. The confession further narrates
some more activities involving money transactions for the use of the same
disruptive activities.
D If one reads Ext.P-25 he cannot but form the irresistible impression that
activities were targeted against the sovereignty and territorial integrity of India
vis-a-vis the State of Jammu and Kashmir. Hence it is unnecessary to ponder
over the question whether Ext.P25 would really amount to disruptive activities.
None can even doubt, reading Ext.P-25, that it amounts to disruptive activities
E as defined in Section 4 of TADA. It is not necessary to cogitate over the
question whether Ext.P-25 is admissible in evidence as Section 15 of TADA
has removed the lid of inadmissibility, if the confession was made to a police
officer not lower in rank than a Superintendent of Police. There is no dispute
that PW-4 was holding such a rank during April 1995.

F Therefore, Shri Sushi! Kumar learned senior counsel, focussed on the
reliability of the said confession. The first point raised against the confession
is that when appellant was produced before PW-4 on 18.4.1995, he did.not
administer a caution to him that he was not bound to make any such confession.
Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules (for short
G 'the Rules') was cited before us which contained regulations for recording
confession under Section 15 of TADA. Sub-rule (3) of the Rules says, inter
alia, that the police officer who records the confession shall make a memoran-
dum at the end of the confession to the following effect:

"I have explained to (name) that he is not bound to make a confession
H and that, if he does so, any confession he may make maybe used as
NAZIR AHMAD BHATI v. STATE [THOMAS, J.] 5
evidence against him and I believe that this confession was voluntarily A
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."

There is no dispute that a memorandum to the above effect has been B
. appended to the confession signed by PW-4. But learned senior counsel
submitted that mere appendage of such a memorandum is insufficient, as the
caution envisaged in the rule should really have been administered to the
appellant, i.e. he was not bound to make a confession and that if he did so the
confession could be used against him. Learned counsel pointed out that in the c
minutes recorded by PW-4 on 18.4.1995 there was no mention about admin-
istering a caution to the appellant that he was not bound to make a confession.
Nonetheless, PW-4 recorded in the said minutes that he cautioned the appellant
that the confession could be used against him during trial and that the appellant
replied that he fully understood the consequence of making a confession. On
19.4.1995 PW-4 asked him the question whether he was aware that he was not D
bound to make a confession to which the appellant answered in the affirmative,
then only he proceeded further and recorded the confession.

Thus, it is clear that what was required by law for compliance with as
precautionary measures have been complied with by PW-4. Of course, the E
witness PW-4 has deposed in court that he· explained to the confessor even on
18th itself that he was not bound to make such a confession. Learned senior
counsel for the State contended that the court can regard the said evidence for
satisfying itself that there was no such non-compliance. Section 463 of the
Code of Criminal Procedure enables the court to take evidence in regard to any
non-compliance and to act on such evidence if the court is satisfied that such F
non-compliance has not injured the accused in his defence on the merits. In
our view, resort to Section 463 of the Code is unnecessary on the facts of this
case because PW-4 had administered the caution to the confessor on 19.4.1995,
before proceeding to record the confession, that the confessor is not bound to
- ;- make such a confession. There is no requirement that the confessor should be G
administered with such caution on every day the officer meets him. It is
enough that the caution is administered before the accused made the confes-
sional statement.

Learned senior counsel then adopted an alternative attack on the confes-
sional statement basing on a guideline laid down by this Court in Kartar Singh H
6 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A v. S1t11e of Punjab, [1994] 3 SCC 569. A Constitution Bench of this Court was
considering the constitutional validity of Section 15 of TADA and learned
judges of the Bench upheld its validity in the aforesaid decision. However,
certain guidelines were formulated for compliance by the officers to ensure that
confession is not tainted with any vice. Guideline No.2, to which focus is made
by the senior counsel, reads thus:
B
"The person from whom a confession has been recorded under Section
15(1) of the Act, should be produced before the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate to whom the confession is
required to be sent under Rule 15(5) along with the original statement
c of confession, written or recorded on mechanical device without un-
reasonable delay."

In order to drive his point home learned senior counsel contended that
it is for the prosecution to show that everyone of the guidelines has been
complied with by the police officer. Learned senior counsel for the State
D submitted that it is open to the court to presume that official acts have been
regularly performed and hence it is for the party who wants to show non-
compliance of any official duty, to satisfy the court about the lapse. In the
present case we do not propose to enter on a discussion regarding the aforesaid
question of burden of proof because there is material on record to show that
E appellant was produced before the Additional Chief Metropolitan Magistrate
for the purpose of verification of the statement attributed to the appellant. PW-
38 the Investigating Officer said so in his evidence. Nothing has been shown
to us for disbelieving the aforesaid evidence.

Learned senior counsel for the appellant then made an endeavour to
·F show that PW-4 had only copied the statement prepared by the Investigating
Officer under Section 161 of the Code of Criminal Procedure and secured the
signature of the appellant thereon. We do not have any material to think that
PW-4 did so as contended by the learned counsel. In this context we may point
. out that appellant did not make a mention to the Additional Chief Metropolitan
Magistrate before whom he was produced on 19.4.1995 that he was made to
G sign any document without his consent or that he did not make a confession
as recorded by PW-4.

We have to bear in mind the answer given by the appellant to a question
put by the trial judge during examination under Section 313 of the Code·after·
H bringing his attention to Ext.PW-4/B. That document is dated 18.4.1995 and
NAZIR AHMAD BHATI v. STATE [THOMAS, J.] 7
it shows that appellant gave his consent to make a confessional statement A
before the senior officer. Appellant owned Ext.PW-4/B though he explained
that he signed it at the instance of the Investigating Officer. This means,
appellant was told in advance about the possibility of recording his confession.
He never had any complaint that he was physically or even mentally tortured
by the police at any time. He thought of retracting from the confession only
B
during trial of the case and not at any previous stage.

From all the above broad circumstanCl)s, we are inclined to believe that
confession was voluntarily made by him. The seizure of the stickers and other
materials from his house would only lend assurance to the court that the
confession contained only the truth. C
We do not find any good reason to upset the conviction passed by the ·
designated court under TADA. We, therefore, confirm the conviction. We
need not vex our mind about the quantum of sentence because, as pointed out
earlier, appellant has already undergone the period of imprisonment covered
by the sentence. D
In the result, we dismiss this appeal.

V.S.S. Appeal dismissed.

,