Supreme Court of India
SANJAY DUTT (A-117)versusTHE STATE OF MAHARASHTRA, THROUGH CBI (STF), BOMBAY
- Citation
- 2013 INSC 182
- Decided
- 21 March 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
A confessional statement recorded under Section 15 of TADA is admissible as substantive evidence against the maker and co‑accused, even if later retracted, and may be used without corroboration if the court is satisfied of its voluntariness and probative value; Section 12 TADA authorises conviction for non‑TADA offences in a joint trial; Section 27 Evidence Act applies to identification of persons; the non‑obstante clause in Section 4 Probation of Offenders Act prevails, but the seriousness of the offence precludes its benefit.
Summary
The Supreme Court examined a series of appeals arising from the Designated Court's judgments in the 1993 Bombay bomb blast case under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The Court held that confessional statements recorded under Section 15 of TADA are substantive evidence admissible against the maker and co‑accused, even if later retracted, provided they are voluntary and the statutory requirements are met; corroboration is a matter of judicial discretion. It clarified that Section 27 of the Evidence Act applies to identification of persons as well as places, and that Section 12 of TADA permits conviction for non‑TADA offences in a joint trial. The Court also ruled that the non‑obstante clause in Section 4 of the Probation of Offenders Act overrides other statutes, but declined to grant probation to the appellant Sanjay Dutt (A‑117) because of the seriousness of the offence, merely reducing his sentence. Sentences for other accused were confirmed or reduced, and the acquittal of A‑120 was upheld.
Issues considered
- The admissibility and evidentiary value of confessional statements recorded under Section 15 of TADA, especially when retracted.
- Whether a confessional statement can be used against a co‑accused without corroboration.
- The applicability of Section 27 of the Evidence Act to identification of persons versus places.
- The scope of Section 12 TADA in allowing conviction for offences under other statutes in a joint trial.
- The applicability of Section 4 of the Probation of Offenders Act to the convicted persons.
Legislation cited
- Arms Act, 1959s. 25(1-A), s. 25(1-B)(a), s. 3, s. 7
- Code of Criminal Procedure, 1973s. 360
- Explosives Act, 1884s. 98(1)(a)(b)(c)
- Explosive Substances Act, 1908s. 3, s. 4(a)(b), s. 5, s. 6
- Indian Evidence Act, 1872s. 25, s. 26, s. 27, s. 30
- Indian Penal Code, 1860s. 120-B, s. 201, s. 212, s. 302, s. 307, s. 324, s. 326, s. 427, s. 435, s. 436
- Prevention of Damage to Public Property Act, 1984s. 4
- Probation of Offenders Act, 1958s. 3, s. 4
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 12, s. 15, s. 3(2)(i)(ii), s. 3(3), s. 4, s. 5, s. 6
Subjects
confessional statementTADASection 15retracted confessioncorroborationSection 27 Evidence ActSection 12 TADAProbation of Offenders Actnon‑obstante clausejoint trialarms possessionterrorist conspiracyevidence lawbiasnatural justice
Judgment
[2013] 16 S.C.R. 368
A
SANJAY DUTT (A-117)
v.
THE STATE OF MAHARASHTRA, THROUGH CBI (STF),
BOMBAY
B (CRIMINAL APPEAL NO. 1060 OF 2007 ETC.)
PART- 6
MARCH 21, 2013
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
c
Terrorist and Destructive Activities (Prevention) Act, 1987
- ss. 3(2)(i)(ii), 3(3), (4), 5 and 6 - Penal Code, 1860 - 120-
8, 302, 307, 326, 427, 435, 436, 201 and 212 - Arms Act,
1959 - ss. 3, 7 and 25(1-A}, (1-B)(a) - Explosives Act, 1884
D - s.98(1)(a)(b)(c) - Explosive Substances Act, 1908 - ss. 3,
4(a}(b), 5 and 6 - Prevention of Damage to Public Property
Act, 1984 - s. 4 - Prosecution under - Designated Court
convicted A-117 under the provisions of Arms Act and
sentenced him to 6 years imprisonment; convicted A-118
E under the provisions of Arms Act and u/s. 201 /PC and
sentenced him to 5 years Rl-A-124 was convicted u/s. 25(1-
B)(a) of Arms Act and s.201 /PC and sentenced to 2 years
RI - Acquittal of A-120 - Conviction of A-53 u/s. 3(3) TADA
and sentenced of 9 years RI - Conviction of A-119 u/ss. 3(3)
F and 5 of TADA and sentenced to 5 years RI - All the
appellants-accused preferred appeal - The State filed appeal
against acquittal of A-120 and cross-appeals in respect of A-
53 and A-119 - Held: Order of the Designated Court upheld
as regards conviction/acquittal of the accused persons -
G However, in the circumstances of the case, sentence of A-117
reduced to 5 years RI from 6 years RI; sentence of A-124
reduced to 1 years RI from 2 years; and sentence of A-53
reduced to the period already undergone.
H 368
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 369
CBI, (STF), BOMBAY
s. 15 - Confessional statement under - Evidentiary value A
of..., Held: A confessional statement is a substantive piece of
evidence and can be the sole basis for conviction, if recorded
in accordance with the provisions of TA!::A - A voluntary and
truthful confessional statement requires no corroboration - But
if such statement is to be used against the co-accused, the B
Court may look for corroboration as a matter of prvdence -
Minor and curable irregularities in recording such statement
do not affect the admissibility of the said evidence.
s. 15 - Confessional statement - Retraction of..., Effect
- Held: A voluntary and free confession even if retracted later, C
can be relied upon.
s. 15 - Confessional statement under - Reliance on -
Permissibility- When accused is acquitted of TADA charges
- Held: Confession recorded u/s. 15 can be relied upon in D
case of a joint trial, even if the accused is subsequently
acquitted of TADA charges.
Evidence Act, 1872 - s.27 - Scope of - Held: s.27 is
attracted even when identification is of the person, instead of E
place where the article is to be found.
Probation of Offenders Act, 1958:
s. 4 - Scope of - Held: s. 4 is intended to attempt
possible reformation of an offender instead of inflicting upon F
him the normal punishment - Such exercise of discretion
needs a sense of responsibility, by taking into consideration
the attendant circumstances - In the present case,
circumstances of the case and nature of the offence are so
serious that they do not warrant A-117 benefit of provisions G
of the Act.
s. 4 - Effect of - Held: The provision will have overriding
effect and shall prevail, if conditions prescribed therein are
fulfilled - Code of Criminal Procedure, 1973 - s. 360.
H
370 SUPREME COURT REPORTS [2013] 16 S.C.R.
A As a retaliation to demolition of Babri Masjid at
Ayodhya 'DI' 'TM' and 'MD' all absconding accused (AA),
formulated a conspiracy to commit terrorist acts in the city
of Bombay. In pursuance of the said objective 'DI' (AA)
sent arms and ammunitions from abroad and 'TM' (AA)
B received those arms and ammunitions in India. Pursuant
to the serial bom_b blast in the city of Bombay, a common
charge of conspiracy was framed against all the co-
conspirators including the appellants in the present
appeals.
c The appellants in appeal Nos. 1060/2007, 1102/2007
and 1687/2007 (A-117, A-118 and A-124), in addition to the
common charge, were charged u/s. 3(3) for acquiring and
keeping in their possession 3 AK-56 rifles, its
ammunitions and one 9 min pistol and its cartridge~ and
D handgranades unauthorisedly, u/s .•5 and 6 of TADA, and
u/ss. 3 and 7 r/w. ss.25(1-A) and (1-S)(a) of Arms Act, 1959.
The appellants (A-118 and 124) were also charged u/s. 201
.IPC for destroying the unauthorisedly possessed arms.
E Designated court convicted A-117 u/ss. 3 and 7 r/w.
ss.25(1-A)(1-B)(a) of Arms Act, 1959 and sentenced him
to 6 years RI alongwith fine of Rs.25,000/-, with default
clause. He was acquitted of rest of the offences for which
he was charged. A-118 was convicted u/ss. 3 and 7 r/w
F ss.25(1 ·A)(1-B)(a) of Arms Act and was sentenced to 5
years RI and fine. He was further convicted u/s. 201 IPC
and sentenced to 2 years RI. A-124 was also convicted
u/ss. 3 and 7 r/w. ss. 25(1-A), (1-B)(a) of Arms Act and u/
s. 201 IPC and was sentenced to 2 years RI on each count
G and fine of Rs.25,000/- was imposed. Hence the present
appeals were filed by A-117, A-118 and A-124.
The respondent-accused (A-120) in the appeal No.
596/2011, apart from common charge of conspiracy, was
charged u/ss. 3(3), 5 and 6 of TADA and u/ss. 3 and 7 r/
H
SANJAYDUTT (A-117) v. STATE OF MAHARASHTRA, THR. 371
CBI, (STF), BOMBAY
w. ss.25(1-A)(1-B)(a) of Arms Act, 1959. Designated Court A
acquitted him of all the charges. Hence the appeal was
filed by CBI. ,
Accused No.53 (A-53), in addition to common charge
of conspiracy was charged u/ss. 3(3) and 6 of TADA. He.
8
was convicted by Designated Court u/s. 3(3) of TADA and
sentenced to 9 years RI and fine of Rs. one lakh with
default clause. Hence the cross-appeals (appeal No.1104/
2007 and 1026/ 2012) were filed by the accused as well
as CBI.
c
The accused (A7119), apart from general charge of
conspiracy, was also charged u/ss. 3(3), 5 and 6 of TADA.
He was convicted u/s. 3(3) and 5 of TADA and was
acquitted of the general charge of conspiracy. Hence the
cross-appeals (Appeal Nos.1001/2007 and 392/2011) by D
the accused as well as CBI.
It was interalia contended that reliance on
confessional statement of A-117 to the police was
impermissible for the offences other than TADA offences, E
as he was acquitted of the charges under TADA; that
identification of person, instead of the place where the
article is to be found does not attract the provisions of
s.27 of Evidence Act; and that A~117 was entitled to
benefit of s.4 of Probation of Offenders Act, 1958.
F
Partly allowing the appeals by A-117, A-124 and A-53
a.nd dismissing the appeals by A-118 ·and 129 and the
appeals by the State, the Court
HELD: G
Criminal Appeal Nos.1060 of 2007; 1102 of 2007 and 1687
of 2007:
1.1. A confessional statement duly recorded by a
H
372 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Police Officer is a substantive piece of evidence and the
same can be relied upon in the trial of such person or of
the co-accused, abettor or conspirator if the requirements
of Section 15 of TADA, and the rules framed thereunder
·are complied with. The police officer, before recording the
B confession, has to observe the requirement of Section
15(2) of TADA. A voluntary and truthful confessional
statement recorded under Section 15 of TADA requires
no corroboration. However, as a matter of prudence, the
court may look for some corroboration if confession is
c to be used against co-accused. Whether such confession
requires corroboration or not is a matter for the court to
consider such confession on the facts and
circumstances of each case. If the confession made by
an accused is voluntary and true, it is admissible against
co-accused as a substantive piece of evidence and minor
D and curable irregularities in recording of confession,
such as omission in obtaining the certificate of the
competent officer with respect to the confession do not
affect the admissibility of the said evidence. [Para 37)
E [427-E-H; 428-A-B]
1.2. The corroboration can be found in the present
case both in the nature of substantive evidence in the
form of the confessions of the co-accused, as well as in
the oral testimony of witnesses, including the eye
F witnesses to the incident who have identified the
appellant-A-117, as well as the co-accused viz., A-41 and
A-53.Apart from the evidence contemporaneous to the
arrest of the abovesaid three accused and the recovery
made from A-124 and subsequent recovery at the
G instance of A-124 from A-120, are also relevant in respect
of all the three appellants i.e. A-117, A-118 and A-124.
[Paras 56 and 57) [438-E-G]
1.3. A voluntary and free confession, even if later
retracted, can be relied upon. In the case of the appellant
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 373
CBI, (STF), BOMBAY
A-117, the retraction statement was not made at the first A
available opportunity. After the recording of his
confession, within 10 days, the accused was releas~d on
bail by the High .Court, and the accused remained free for
a considerable period oftime. The retractions were made
many months after the recording of the c.onfession. B
[Paras 38 and 39] [428-C-E]
1.4. The appellant A-117 not only implicates himself
in his confessional statement but also amongst others the
appellant A-118. The confession was duly recorded by C
PW-193 who has proved the compliance with the
provisions of law while recording the confession. The
confession is a substantive piece of evidence and the
confession can be the sole basis of conviction, if
recorded in accordance with the provisions of TADA.
Further, the confessional statement establishes the D
unauthorized possession of weapons in the notified area
of Bombay. The confession of the appellant (A-117) i~
also substantiated and corroborated with the confession
of other co-accused, namely, A-53, A-41, A-89, A-40, A-118
and A-124. [Paras 20 and 21] [405-D-G] E
1.5. In view of the confessional statement of A-118, it
is seen that the appellant (A-118), upon instructions,
caused destruction of evidence related to an offence,
which were unauthorisedly possessed automatic F
firearms/weapons in a notified area, attracting the
provisions of the Arms Act. The confession of A-118 not
only involves and implicates him, but also implicates A-
124. The confession of A-118 corroborates with the
confession of A-117 as well as A-124. [Para 25] [414-F-G] G
1.6.The confession of appellant A-124 establishes the
charge framed against A-124 that he knowingly
destroyed evidence related to an offence. A-124 was
H
374 SUPREME COURT REPORTS [2013] 16 S.C.R.
A thereafter in unauthorized possession of the fire-arm. The
abovesaid confession also corroborates in material
particulars, the confession of A-118. [Para 28] [417-G]
1.7. The sequence of events after the arrest of A-117
till the recovery of pistol from A-120, forms part of an
8
unbroken chain inseparably connected to each other. No
foul play can be assumed in view of the fact that the
events happened in quick succession one after the other,
lending credibility and truthfulness to the whole episode.
The role and the part played by A-118 and A-124 is also
C clear from the evidence relied upon by the prosecution
in respect of A-117, which corroborates with each other
in material particulars and is t.hus a substantive piece of
evidence. [Para 58] (438-H; 439-A-B]
D 1.8. The confessions of the appellants, viz., A-117, A-
118 and A-124 have been recorded by PW-193, who has
proved that the said confessions were recorded after
following the requirements of the provisions of Section
15 of TADA. Notwithstanding vigorous cross-
E examination of the witness (PW-193), he stood firmly
without being shaken. [Para 29] [417-H; 418-A]
Jayawant Dattatray Suryarao vs. State of Mharashtra
(2001) 10 SCC 109: 2001 (5) Suppl. SCR 54; Ravinder
F Singh @ Bittu vs. State of Maharashtra (2002) 9 SCC 55:
2002 (3) SCR 622; Mohmed Amin vs. Central Bureau of
Investigation (2008) 15 SCC 49: 2008 (16) SCR 155; Jameel
Ahmeid and Anr. vs. State of Rajasthan (2003) 9 SCC 673;
Mohd. Farooq Abdul Ga fur vs. State of Maharashtra (2010)
14 SCC 641: 2009 (12) SCR 1093; State of Maharashtra vs.
G Bharat Chaganlal Raghani (2001) 9 SCC 1: 2001 (3) SCR
840; Manjit Singh vs. CBI (2011) 11 sec 578: 2011 (1) SCR
997; Wariyam Singh vs. State of U.P. (1995) 6 SCC 458: 1995
(3) Suppl. SCR 807; S.N. Dube vs. N.B. Bhoir and Ors.
(2000) 2 SCC 254: 2000 (1) SCR 200; Lal Singh vs. State
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 375
CBI, (STF), BOMBAY
of Gujarat (2001) 3 SCC 221: 2001 (1) SCR 111; State of A
Maharashtra vs. Bharat Chaganlal Raghani, (2001) 9 SCC
1: 2001 (3) SCR 840; Devender Pal Singh vs. State of NCT
of Delhi (2002) 5 SCC 234: 2002 (2) SCR 767; Ravinder
Singh vs. State of Maharashtra (2002) 9 SCC 55: 2002 (3)
SCR 622; Nazir Khan vs. State of Delhi (2003) 8 SCC 461: B
2003 (2) Suppl. SCR 884; Sukhwant Singh vs. State (2003)
8 SCC 90; Mohd. Ayu/J Dar vs. State of Jammu and Kashmir
(2010) 9 sec 312: 2010 (8) SCR 916; Manjit Singh vs. CBI,
(2011) 11 sec 578: 2011 {1) SCR 997 - relied on.
2. It cannot be said that u/s. 27 of the Evidence Act, C
only recovery of object is permissible and identification of
the person instead of the place where the article is to be
found cannot attract the provisions of Section 27. The rod
and the spring recovered from the possession of A-124
were sent to FSL for examination. The experts opined that D
the said articles correspond to that of an AK-56 type rifle,
but did not correspond to similar components used in AK-
47 rifle. The requisition and the report show that the seal
on the packet containing the object was perfect and had
not been tempered with. In that event, the said anomaly E
may not be of much consequence. The prosecution has
also established through one independent witness PW-
265 that A-118 and A-124 further made statement to the
police and pursuant whereof the gas cylinder used in
destroying AK-56 was recovered at the instance of A-124 F
and some of the ammunition of AK-56 were recovered at
the instance of A-118. [Paras 61 and 63 to 65] [449-F-G;
451-G-H; 452-B·D]
Jaffar Hussain Dastagir vs. State of Maharashtra (1969) G
2 SCC 872: 1970 (2) SCR 332; State (NCT of Delhi) vs.
Navjot Sandhu (2005) 11 SCC 600: 2005 (2) Suppl. SCR
79 - relied on.
3. Even if the accused was to be acquitted of the
H
376 SUPREME COURT REPORTS [2013] 16 S.C.R.
A TADA charges, still in a joint trial, the confessions
recorded under Section 15 of TADA can be relied upon
in respect of the said accused. The stage at which the
trial can be separated is at the stage of cognizance and
not subsequently. In the present case, at the time of
B taking cognizance by the Designated Court, there were
sufficient evidence against the appellants to proceed
against them in the joint trial. In the case of A-117, the
Designated Court rightly took a view on the basis of his
own confession that the weapons were not acquired for
c any terrorist activity but they were acquired for self-
defence, therefore, acquittal was rightly recorded in
respect of charge under Section 5 of TADA. In *Sanjay
Dutt (//) case wherein this Court considered the entire
case of the appellant-A-117 at that stage and opined that
although the offence was complete by the unauthorized
0
possession of a weapon in the notified area, a defence
would be available to the accused to be taken at the time
of the trial and the Trial Court can consider the same by
virtue of Section 12 of TADA. [Paras 67 and 70] [452-G-
E H; 453-A-C; 460-D-E]
*Sanjay Dutt vs. State (II) (1994) 5 SCC 410: 1994 (3)
Suppl. SCR 263; Prakash Kumar@ Prakash Bhutto vs. State
of Gujarat (2005) 2 sec 409: 2005 (1) SCR 408 - relied on.
F 4.1. The Probation of Offenders Act, was enacted with
a view to provide for the release of offenders of certain
categories on Probation or alter due admonition and for
matters connected therewith. The object of the Act is to
prevent the conversion of offenders into obdurate
G criminals as a result of their association with hardened
criminals. The scope of Section 4 of the Probation of
Offenders Act is much wider. It applies to any person
found guilty of having committed an offence not
punishable with death or imprisonment for life. [Paras 79
H and 80] [463-C-D, G]
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 377
CBI, (STF), BOMBAY
4.2. Section 360 Cr.P.C. does not provide for any role A
for probation officers in assisting the courts in relation
to supervision and other matters while the Probation of
Offenders Act does make such a provision. While Section
12 of the Probation of Offenders Act states that a person
found guilty of an offence and dealt with under Section . B
3 or 4 of the Probation of Offenders Act, shall not suffer
disqualification, if any, attached to the conviction of an
offence under any law. Cr.P.C. does not contain parallel
provision. Two statutes with such significant differences
could not be intended to co-exist at the same time in the C
same area. Such co-existence would lead to anamolous
results. The intention to retain the provisions of Section
360 CrP.C. and Probation of Offenders Act as applicable
at the same time in a given area cannot be gathered from
the provisions of s.360 or any other provisions of Cr.P.C.
[Para 81] [463-H; 464-A-C] 0
4.3. Sub-section 4 of the Probation of Offenders Act
contains the words "Notwithstanding anything contained
in any other law for the time being in force". The above
non obstante clause points to the conclusion that the E
provisions of Section 4 of the Probation of Offenders Act
would have an overriding effect and shall prevail if the
other conditions prescribed therein are fulfilled. Those
conditions being (i) the accused is found guilty of having
committed an offence not punishable with death or F
imprisonment for life; (ii) the Court finding him guilty is
of the opinion that having regard to the circumstances
of the case, including the nature of the offence and the
character of the offender, it is expedient to release him
on probation; (iii) the accused in such an event enters G
into a bond with or without sureties to appear and receive
sentence when called upon during such period not
exceeding three years as the court may direct and, in the
meantime, to keep the peace and be of good behaviour.
H
378 SUPREME COURT REPORTS [2013] 16 S.C.R.
A The underlying object of the above provisions obviously
is that an accused person should be given a chance of
reformation, which he would lose in case he is
incarcerated in prison and associates with hardened
criminals. The provisions of the said Act are beneficial
8 provisions and, therefore, they should receive wide
interpretation and should not be read in a restricted
sence. [Paras 83 and 84] [464-E-H; 465-A-C]
4.4. Section 4 of the Probation of Offenders Act applies
to all kinds· of offenders, whether under or above the age
C of 21 years. This section is intended to attempt possible
reformation of an offender instead of inflicting upon him
the normal punishment of his crime. Such exercise of
discretion needs a sense of responsibility. The section
itself is clear that before applying the same, this Court
D should carefully take into consideration the attendant
circumstances. The circumstances and the nature of the
offence are so serious, that they do not warrani A-117 the
benefit of the provisions of the.Probation of Offenders Act,
however, taking note of various aspects, the sentence is
E reduced to minimum period, viz., 6 years to 5 years. [Paras
85 and 86] [465-D-G]
Ratanlal vs. State of Punjab (1964) SCR 676; Chhani
vs. State of U.P. (2006) 5 SCC 396: 2006 (3) Suppl. SCR
F 305; /shar Oas vs. State ofPunjab 1973 (2) SCC 65: 1972
(3) SCR 312 - relied on.
Ved Prakash vs. State of Haryana 1981 (1) SCC 447:
1981 (1) SCR 1279; Jugal Kishore vs. State of Bihar (1972)
2 SCC 633: 1973 (1) SCR 875 - referred to.
G
5. In the facts and circumstances of the case, the
conviction and sentence awarded to A-118 by the
Designated Court is confirmed. [Para 87] [466-A-B]
H
SANJAY oun (A-117) v. STATE OF MAHARASHTRA, THR. 379
CBI, (STF), BOMBAY
Sanjay Dutt vs. State (/) (1994) 5 SCC 402: 1994 (2) A
Suppl. SCR 729;Kartar Singh vs. State of Punjab (1994) 3
SCC 569: 1994 (2) SCR 375; Sanjay Dutt vs. State (1994) 5
SCC 410: 1994 (3) Suppl. SCR 263 - referred to.
Niranjan Singh Karam Singh Punjabi vs. Jitendra B
Bhimraj Bijayal (1990) 4 SCC 76: 1990 (3) SCR 633 - cited.
6. The Designated Court has convicted A-124 u/ss.
3 and 7 r.w ss. 25(1-A)(1-B)(a) of the Arms Act, 1959, as
well as u/s. 201 of IPC and sentenced him to undergo RI
for 2 years on both the counts separately. A perusal of C
all the materials relating to A-124 shows that the
Designated Court itself convicted and sentenced A-124
under Section 25(1-B)(a) of the Arms Act along with
Section 201 of IPC. While clarifying the same, it is held
that there is no substantive evidence for convicting him D
u/s. 25(1-A) of the Arms Act, though the Designated Court
has referred to the same while awarding sentence to him.
Also, considering his age, i.e. 82 years as on date and
taking note of the fact that the minimum sentence for the
offence u/s. 25(1-B)(a) being one year, wl:lile confirming E
his conviction, the sentence awarded to A-124 u/s. 25(1·
B)(a) as well as u/s. 201 IPC is reduced to 1 year which
shall run concurrently. [Para 88] [466-B-E]
Criminal Appeal No. 596 of 2011:
F
7 .1. The respondent A-120 has not made any
confession and the co-accused A-125 relied on by the
prosecution has also not made any confession and even
the confessional statements of other co-accused failed
to disclose any involvement of A-120 in any manner. The G
only allegation against the present accused was that of
seizure of a box coritaining a pistol from his house. The
Designated Court, after considering the evidence of
panch witness (PW-211) regarding the statement made
H
380 SUPREME COURT REPORTS [2013] 16 S.C.R.
A by A-125 and after finding that there was lot of variation
in their statements and bereft of materials about the role
of A-120 and further finding that different stories had been
projected by the prosecution, refused to accept the
same. After analyzing the entire statement of A-125, the
B trial court came to a conclusion that the same were
insufficient to connect A-120 as being the person who
had received the same pistol and rounds. [Para 94) [470-
D-G]
7.2. The Designated Court, has rightly observed that
C mere recoveries of a .9mm pistol and the rounds from the
bungalow of A-120 would not be sufficient to connect him
with the said articles. It is settled law that the recoveries
made must be found to have been made as a
consequence ofhe statement made by the accused in
D custody. If the nexus in between is not established, the
said statement made would be inadmissible in evidence.
The Designated Court, after considering the well settled
principles and the materials placed concluded that "it will
be further necessary to say that scrutiny of the evidence
E also does not reveal A-120 having purchased .9mm pistol
and rounds ...... " The Designated Court has also
concluded that even if the statement made by A-125 is
acceptable, in the absence of any supporting oral and
documentary evidence and taking note of the
F improvement made by panch witness as well as in the
statements of witnesses stage by stage "hardly there
would be any evidence to connect A-120 with the relevant
contraband articles" and rightly discarded the same. In
the light of the categorical finding by the trial court and
G after analyzing the materials placed by the prosecution,
the conclusion reached by trial court is correct and with
the above said insufficient evidence, the order of
acquittal cannot be lightly interfered in the present appeal.
Hence, the appeal, filed by CBI, fails. [Paras 95 and 96)
H [470-G-H; 471-A-E]
SANJAY DUTI (A-117) v. STATE.OF MAHARASHTRA, THR. 381
CBI, (STF), BOMBAY
Criminal Appeal Nos. 1104/2007 and 1026/2012: A
8.1. A perusal of the confessional statement of co-
accused A-41 shows that the appr:'.lant (A-53) helped the
co-accused persons to look for a garage where the
weapons could be off-loaded and after that they were to
8
be distributed to various persons. [Para 104) [479-A-B]
8.2. Upon perusal of the entire evidence, it. is clear
that the appellant-A-53 was closely assoC:iated with 'TM'
(AA) and 'AIK' (AA). Further, inspite of the unwillingness
shown by his partner A-40, the appellant helped the co- c
accused search for garages where the weapons were to
be off-loaded and concealed whereafter they were to· be
distributed to A-117 and other persons. In addition to the
same, the appellant was also associated with co-accused
even after the blasts, which fact is clearly discernible from 0
the confession of A-96 wherein she stated that after
coming back to her house, her father informed her that
A-53 had come and gave Rs. 50,000/- for help. [Para 106]
[480-E-H] .
8.3. It is not correct to say that only on the ground of D
acquaintance with the main conspirators, the appellant
has been erroneously convicted under Section 3(3)
TADA. It was on the instructions of 'AIK' (AA) that the
arms were delivered to A-117 and because of the
relationship of 'AIK' (AA) and 'TM' (AA) and 'DI' (AA), it E
·establishes a strong link between A-53 and 'AIK' (AA).
Materials relied on by the prosecution clearly prove
relationship between 'AIK' (AA) and A-53. Further, their
relationship cannot be simply construed as a business
relationship. The materials placed on record by the F
prosecution, relied on and accepted by the Special
Judge show that the appellant was guilty of distributing
arms to persons other than A-117. The finding recorded
by the trial Judge was that A-53 not only distributed
weapons to A-117 but also to third parties. [Para 107] G
[479-A-B]
382 SUPREME COURT REPORTS [2013] 16 S.C.R.
A State vs. Nalini (1999) 5 SCC 253: 1999 (3) SCR 1 -
referred to.
8.4. The CBI has successfully placed materials to
show that the appellant was responsible for arranging
garages for the storage of weapons. In the confessional
8
statement of A-41, in categorical terms it was asserted
that A-53, the present appellant, along with A-41 and A-
139 searched for garages at different places in Mumbai
where the weapons could be off-loaded and after that
they were to be distributed to various persons as
C suggested by Anees Ibrahim. The confessional statement
of A-41 also shows that the appellant helped the co-
accused persons to look for garages. In such
circumstance, it cannot be claimed that at no point of time
A-53 was ever aware of what was to be stored in the
D garages. [Para 108) [481-E-H]
8.5. The Designated Court, on going through the
evidence of the officer who recorded the confession of A-
'53, the procedure followed, opportunity given to the
E appellant, rejected the similar objection raised before him.
In view thereof, there is no flaw in the procedure while
recording the confession of the appellant. [Para 109) [482-
8)
8.6. The materials available establish involvement of
F A-53 only to the extent of the smaller conspiracy and the
Designated Court was justified in arriving at such
conclusion. Hence, the appeal filed by the State is liable
to be dismissed. [Para 11 OJ [482-D-E]
G 8.7. Taking note of all the aspects viz. appellant is a
sick person; he has ~ stents in his arteries; he is a
diabetic coupled with a serious heart ailment; he has
already faced protracted trial for 13 % years on day to day
basis; his entire business and goodwill has been lost; he
H nas already served about 6 % (six and a half) years and
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 383
CBI, (STF), BOMBAY
of the fact that the CBI was not able to establish the A
charge relating to major conspiracy and taking note of
the fact that the minimum sentence prescribed is 5 years,
while confirming the conviction, th.: sentence is reduced
to the period already undergone. [Para 112] [483-D]
B
Criminal Appeal Nos.1001/2007 and 392/2011:
9.1. The Designated Court convicted the appellant (A-
119) u/s. 3(3) and Section 6 of TADA only on the basis of
the confessional statement of A-89 and the evidence of
PW-283 (watchman in the building). Admittedly, the C
appellant, at no point of time, had made any confession
admitting her guilt. Equally, it is not in dispute that no
recovery has been affected from her house. The only
incriminating circumstance against her is the statement '
of A-89 that while handing over a plastic bag, he D
mentioned that it contains AK-56 rifle and other arms. It
is also his claim that after knowing the contents, she
received the same and kept it in her house. In view of
these aspects, there is no case insofar as the main
conspiracy against her and the Designated Court has E
rightly acquitted her of the main charge of main
conspiracy. However, upon perusal of the entire
evidence, the judgment passed by the Designated Court
is upheld to the extent of Charge u/ss. 3(3) and 6 of TADA.
[Paras 124 and 125] [492-E-H; 493-A] F
9.2. In view of the minimum sentence of 5 years
prescribed under Sections 3(3) and 6 of TADA, the
conviction and sentence as awarded by the Designated
Court is confirmed, [Para 126) [493-B-C]
G
Mohd. Ayub Dar vs. State of Jammu and Kashmir (2010)
9 sec 312: 2010 (8) SCR 916 - relied on.
Case Law Reference:
1994 (2) Suppl.· SCR 729 relied on Para S(o) H
384 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 1994 (3) Suppl. SCR 263 relied on Para 67
1994 (2) SCR 375 relied on Para 5(p)
2005 (1) SCR 408 relied on Para 67
1994 (3) Suppl. SCR 263 relied on Para 9
B
1990 (3) SCR 633 relied on Para 10
2008 (16) SCR 155 relied on Paras 33, 41,
53
c 2001 (5) Suppl. SCR 54 relied on Para 31
2002 (3) SCR 622 relied on Para 32
(2003) 9 sec 673 relied on Para 34
D 2009 (12) SCR 1093 relied on Para 36
2001 (3) SCR 840 relied on Para 40
2011 (1) SCR 997 relied on Para 42
1995 (3) Suppl. SCR 807 relied on Para 44
2000 (1) SCR 200 relied on Para 45
2001 (1) SCR 111 relied on Para 46
2001 (3) SCR 840 relied on Para 47
F 2002 (2) SCR 767 relied on Para 48
2002 (3) SCR 622 relied on Para 49
(2003) 9 sec 673 relied on Para 50
G 2003 (2) Suppl. SCR 884 relied on Para 51
(2003) 8 sec 90 relied on Para 52
2010 (8) SCR 916 relied on Para 54
2011 (1) SCR 997 relied on Para 55
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 385
CBI, (STF), BOMBAY
2005 (2) Suppl. SCR 79 relied on Para 61 A
1970 (2) SCR 332 relied on Para 62
1981 (1) SCR 1279 relied on Para 77
1973 (1) SCR 875 relied on Para 78 / B
(1964) SCR 676 relied on Para 79
2006 (3) Suppl. SCR 305 relied on Para 80
1972 (3) SCR 312 relied on Para 84
c
1999 (3) SCR 1 referred to Para 107
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No (s). 1060 of2007 etc.
From the Judgment and Order date 31.07.2007 of the D
presiding Officer of the Designated Court under TADA (P) Act,
1987 for Bomb Blast Cases, Greater Bombay, Maharshtra in
Bombay Blast Case No. 1 of 1993
WITH
E
Crl.A. Nos. 1102, 1687 of 2007, 596 of 2011, 1104 of
2007, 1026 of 2012, 1001 of 2007 & 392 of 2011
Harin P. Raval, ASG, Harish N. Salve, Surender Singh,
Ranjit Kumar, Mukul Gupta, Sr. Advs., Hari Sanker K., Vikas F
Singh Jangra, B.H. Marlapalle, Ms. Shirin Khajuria, Kuna!
Cheema, Satyakaam, Anubhav Kumar Anando Mukherjee,
Harsh N. Parekh, Annirudh, Arvind Kr. Sharma, Ajay Sharma,
Sanjay jain, P. Parmeswaran, Ms. Anjali Jha, Advs., with them
for the appearing parties. G
The Judment of the Court was delivered by
P. SATHASIVAM, J. Criminal Appeal No. 1060, 1102 and
1687 of 2007. 1. Mr. Harish Salve, Mr. Surendra Singh, Mr. B.H.
Marlapalle learned senior counsel appeared for A-117, A-118, H
- 386. SUPREME COURT REPORTS [2013] 16 S.C.R.
A A-124 respectively and Mr. Raval, learned ASG duly assisted
by Mr. Satyakam, learned counsel appeared for the
respondent-CBI.
2. The abovesaid appeals are directed against the final
B judgment and order of conviction and sentence dated
28.11.2006 and 31.07.2007 respectively by the Designated
Court under TADA for the Bombay Bomb Blast Case, Greater
Bombay in B.B.C. No.1/1993.
Charges:
c
3. A common charge of conspiracy was framed against
all the co-conspirators including the appellants. The relevant
portion of the said charge is reproduced hereunder:
"During the period from December, 1992 to April, 1993
D
at various places in Bombay, District Raigad and District
Thane in India and o.utside India in Dubai (U.A.E.)
Pakistan, entered into a criminal conspiracy and/oc, were
members of the said criminal conspiracy whose object
was to commit terrorist acts in India and that you all agreed
E to commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
F Muslims by using bombs, dynamites, handgrenades and
other explosive substances like ROX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
G persons, loss of or damage to and disruption of supplies
of services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunition, detonators,
handgrenades and high explosives like ROX into India
H and to distribute the same amongst yourselves and your
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 387
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
men of confidence for the purpose of committing terrorist A
acts and for the said purpose to conceal and storE;l all
these arms, ammunition and explosives at such ·safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose B
off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly c
facilitate the terrorist acts and/or any act preparatory to the ·
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
0
aforesaid objectives of the criminal conspiracy and that on.
12.03.1993 were successful in causing bomb explosions
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza E
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs.27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross F
Road and. Dhanji Street, all in the city of Bombay and its
. suburbs i.e. within Greater Bombay. And thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120-B of IPC read with
Sections 3(2)(i)(ii}, 3(3), (4), 5 and 6 of TADA (P) Act, G
1987 and read with Sections 302, 307, 326, 324, 427,
435, 436, 201 and 212 of Indian Penal Code and offences
under Sections 3 and 7 read with Sections 25 (1-A), (1-
B)(a} of the Arms Act, 1959, Sections 9B (1)(a)(b}(c} of
the Explosives Act, 1884, Sections 3, 4(a){b), 5 and 6 of H
388 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984 and
within my cognizance."
In addition to the above-said principal charge of
conspiracy, the appellants were also charged on other counts
8
which are as under:
Sanjay Dutt (A-117):
At head Secondly; The appellant, in pursuance of the
c aforesaid criminal conspiracy and during the period from
January, 1993 to April, 1993, agreed to keep in his
possession and acquired 3 AK-56 rifles and its
ammunition, one 9mm pistol and its cartridges and
handgrenades, unauthorisedly, which were part of the
D consignments smuggled into the country by Dawood
Ibrahim Kaskar and his associates knowingly and
intentionally that these were smuggled into the country for
the purpose of committing terrorists acts and that he
thereby committed an offence punishable under Section
3(3) of TADA.
E
At head Thirdly; The appellant, by doing the aforesaid
act, unauthorisedly, in Greater Bombay which is specified
as a Notified Area under Clause (f) of Sub Section (1) of
Section 2 of TADA and thereby committed an offence
F punishable under Section 5 of TADA.
At head Fourthly; The appellant possessed the above
mentioned arms and ammunitions with an intent to aid
terrorists and contravened the provisions of the Arms Act,
G
1959 and the Arms Rules, 1962, the Explosive
Substances Act, 1908 and the Explosives Rules, 2008 and
thereby committed an offence punishable under Section
6 of TADA.
At head Fifthly; The appellant, by doing the aforesaid act,
H committed an offence punishable under Sections 3 and 7
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 389
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
read with Sections 25(1-A) (1-B)(a) of the Arms Act, 1959. A
Yusuf Nulwalla (A-118):
At head Secondly; The appellant acquired AK-56 Rifles
and its carridges and one 9mm pistol and its cartridges
which were smuggled into the country for committing 8
terrorist acts and destroyed the said AK-56 Rifle with the
assistance of Kersi Adajania (A-124) and entrusted him
the 9mm pistol and its cartridges for safe custody and
thereby committed an offence punishable under Section
3(3) of TADA. C
At head Thirdly; The appellant i:!Cquired the
abovementioned arms and ammunitions from the house
of Sanjay Dutt (A-117) and possessed the same,
unauthorisedly, in a notified area of Greater Bombay and o
thereby committed an offence punishable under Section
5 of TADA.
At head Fourthly; The appellant acquired and
possessed the abovementioned arms and ammunitions
and failed to give information to Police/Magistrate with an E
intent to aid terrorists and thereby committed an offence
punishable under Section 6 of TADA.
At head Fifthly; The appellant, by doing the aforesaid act,
committed an offence punishable under Sections 3 and 7 F
read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.
At head Sixthly; The appellant caused destruction of the
abovementioned arms and ammunitions with an intention
to screen him and other co-conspirators from legal G
punishment and thereby committed an offence punishable
under Section 201 of the IPC.
Kersi Adajania (A-124):
At head Secondly; The appellant aided and abetted · H
390 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Yusuf Nulwalla (A-118) in destroying AK-56 rifle and
disposing of 9mm pistol and its cartridges which were
smuggled into the country for committing terrorist acts and
thereby committed an offence punishable under Section
3(3) of TADA.
B
.At head Thirdly; In the first week of April, 1993, the
appellant had in his possession one AK-56 rifle, one 9 mm
pistol and its rounds in a notified area of Bombay and
thereby committed an offence punishable under Section
5 of TADA.
c
At head Fourthly; The appellant possessed the said
arms and ammunitions with an intention to aid terrorists
and thereby committed an offence punishable under
Section 6 of TADA.
D
At head Fifthly; The appellant, by possessing the
abovementioned arms and ammunitions, unauthorisedly,
committed an offence punishable under Sections 3 and 7
read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.
E At head Sixthly; The appellant caused destruction of the
abovementioned AK-56 rifle, 9mm pistol and its
ammunitions which were smuggled into the country for
commission of terrorist acts with the intention of screening
himself and the other co-conspirators from legal
F punishment and thereby committed an offence punishable
under Section 201 of the IPC.
4. The appellants have been convicted and sentenced for
the above said charges as under:
G Conviction and Sentence:
Sanjay Dutt (A-117):
A-117 has been convicted for the offence punishable under
H Sections 3 and 7 read with Sections 25(1-A), (1-B)(a) of the
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 391
CBI, (STF), BOMBAY [P. SATHASIVAM; J.]
Arms Act, 1959 and sentenced to suffer RI for 6 years along A
with a fine of Rs. 25,000/-, in default, to further undergo RI for
. a period of 6 months. However, the appellant was not found
guilty of all other offences for which he was charged and,
accordingly, acquitted for all the said offences.
B
Yusuf Mohsin Nulwalla (A-118):
(i} A-118 has been convicted for the offence punishable
under Sections 3 and 7 read with Sections 25(1-A}, (1-B}(a}
of the Arms Act, 1959 and sentenced to RI for 5 years along
with a fine of Rs. 25,000/-, in default, to further undergo RI for C
a period of 6 months.
(ii) The appellant has been further convicted for the offence
punishable under Section 201 of IPC and sentenced to suffer
. RI for 2 years. However, the aforesaid accused being found not 0
guilty of all other offences for which he was charged at trial.
Kersi Bapuji Adajania (A-124):
(i) A-124 has been convicted for the offence punishable
under Sections 3 and 7 read with Sections 25(1-A}, (1-B)(a) E
of the Arms Act, 1959 and sentenced to suffer RI for 2 years
alongwith a fine of R.s. 25,000/-, in default, to suffer further RI
for a period of 6 months.
(ii) The appellant has been further convicted for the offence F
punishable under Section 201 oflPC mentioned at head sixthly
and sentenced to suffer RI for 2 years. However, the aforesaid
accused also being not found guilty of all other offences for
which he was charged at trial.
Brief Facts:- G
5. Before adverting to the detailed analysis oftheevidence
· and the contentions urged, the story of the prosecution is as
. under:
H
392 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (a) Babri Masjid at Ayodhya was demolished on
06.12.1992. After its demolition, violence broke out throughout
the country. Tiger Memon (AA) and Dawood Ibrahim (AA), a
resident of Dubai, in order to take revenge of the said
demolition, formulated a conspiracy to commit terrorist act in
B the city of Bombay. In pursuance of the said object, Dawood
Ibrahim agreed to send arms and ammunitions from abroad.
Tiger Memon, in association with his men, particularly, the
accused persons, received those arms and ammunitions
through sea-coasts of Bombay. The evidence on record
c establishes that the said consignment was a result of a
conspiracy between Dawood Ibrahim Kaskar, Mohammed
Dosa and Tiger Memon (all three absconding accused).
(b) On 15.01.1993, Samir Hingora (A-53), Hanif
Kandawala (A-40), Ibrahim Musa Chauhan@Baba (A-41) and
D Abu Salem (A-139) - then absconding, came to the residence
of the appellant (A-117) at Pali Hill, Sandra, Bombay and told
him that they would deliver the weapons tomorrow i.e., on
16.01.1993. On 16.01.1993, A-53, A-41 and A-139 delivered
3 AK-56 Rifles and 250 rounds of ammunitions and some
E handgrenades at the residence of A-117. On 18.01.1993, out
of the abovesaid 3 AK-56 Rifles and ammunitions, 2 rifles and
some ammunition were taken away by co-accused persons
including one Mansoor Ahmed (A-89).
F (c) On 12.03.1993, bomb explosions took place at various
places in Bombay causing death of 2~7 persons, injuries to 713
and destruction of property worth about Rs. 27 crores.
(d) On 18.04.1993, A-89 was taken in police custody
whereas A-117 was arrested from the Mumbai International
G Airp~rt on 19.04.1993 upon his arrival from Mauritius. On the
same day, at about 15:30-15:40 hrs., he made a statement to
the police that the rifle and the pistol and its rounds thereof have
been kept with A-118 and that he would identify him and his
house in Dongri, Umarkhari. He also led the police party to the
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 393
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
house of A-118 at 15:45 hrs. When wherebaouts of A-118 were A
searched, it was found that he was detained by the Dongri
Police Station in connection with the non-renewal of Arms
licence.
(e) A-118 was summoned from Dongri Police Station and B
produced before DCB-CID. He made a statement mentioning
the name of A-124 and led the police party to his house.
(f) During investigation,A-124 produced a spring and a rod
remanent of the burnt AK-56 and also made a further statement
. regarding 9mm pistol and led the police party to A-125. A-125 C
made a statement and after that the police party proceeded to
the house of A-120.
(g) A-120 produced a bag containing box wherein the pistol
and its cartridges were found. His statement was recorded and D
the articles were seized and a Panchnama was drawn.
(h) All the above facts form part of the complaint culminated
into the registration of a Local Act Case (LAC) bearing No. 21
of 1993 in respect of the abvoesaid 5 persons, namely, A-117,
A-118, A-124, A-125 and A-120. The said complaint mentioned E
that the investigation being carried out in furtherance of C.R.
No. 70 of 1993. The sequence of events after the arrest of A-
117 till the recovery of pistol from A-120 formed part of an
unbroken chain inseparably connected with each other.
F
(i) On 22.04.1993, Mr. Krishan Lal Bishnoi, the then DCP
(PW~ 193), who was investigating Worli Blast from 13.03.1993
·was withdrawn from investigation. On 26.04.1993, A-117
expressed his desire to make a confession and, accordingly,
he was produced before PW-193, who after recording the G
preliminary statement (First part), awarded him a period of 48
hours for cooling off.
U) On 27 .04.1993, the confession of A-118 was recorded
by Mr. Bishnoi (PW-193) in first part and a further time for
reflection was awarded to him. H
394 SUPREME COURT REPORTS [2013) 16 S.C.R.
A (k) On 28.04.1993, PW-193 recorded the second part of
the confession of A-117. Similarly, on 29.04.1993, the
confession of A-118 was recorded by PW-193 which remained
un-retracted.
B (I) On 03.05.1993, A-117 was sent to the judicial custody.
On 05.05.1993, A-117 filed a writ petition before the Bombay
High Court and the High Court released him on interim bail with
the direction that the bail granted to A-117 would continue till
the filing of charge sheet in the Designated Court and after that
the said Court would consider his bail application.
c
(m) Between 18th and 20th May, 1993, and 24th and 26th
May, 1993, confessions of A-53 and A-89 respectively were
recorded by PW-193.
D (n) On 04.11 .. 1993, a consolidated charge sheet was filed
against all the accused persons including the appellants (A-117,
A-118 and A-124). On 19.06.1994, A-117 applied for bail
before the Designated Court. By order dated 04.07.1994, the
Designated Court dismissed the said application.
E (o) Against the said order, A-117 filed a special leave
petition before this Court and prayed for grant of bail. After
hearing the bail petition, this Court, by order dated 18.08.1994
in Sanjay Dutt vs. State (/), (1994) 5 SCC 402, referred the
matter to the Constitution Bench on the question of
F interpretation and construction of the provisions of TADA,
namely,. Sectioa 5 as well as Section 20. By order dated
09.09.1994, the said reference was answered by the
Constitution Bench in Sanjay Dutt vs. State (II), (1994) 5 SCC
410. After.the reference was answered, the matter was placed
G before the regular Bench for consideration of the bail
application. By order dated 23.09.1994, this Court rejected the
application for bail filed by A-117. On 09.11.1994, A-117 filed
a detailed retraction.
(p) In June, 1995, in view of the directions of this Court in
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 395
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Kartar Singh vs. State of Punjab, (1994) 3 SCC 569, the A
Central and State Government set up a Review Committee in
order to individually review the cases of the accused persons
involved in the Bombay bomb blasts case to consider whether
or not the provisions of TADA are applicabie against individual
accused persons and whether or not any of the accused B
persons ought to be entitled to bail? On 08.08.1995, the report
of the Review Committee recommended that the public
prosecutor, on certain parameters, may recommend certain
cases for bail. The case of A-117 was one such case that was
considered for grant of bail by the public prosecutor. The said c
report was filed by the prosecution before the trial Court on
09.08.1995. The CBI, in M.A. No. 312 of 1995, filed an
application before the Designated Court stating that they have
no objection for grant of bail to A-117 and 11 others.
(q) On 11.09.1995, in view of the report of the Review D
Committee, A-117 renewed his prayer for bajl before the
Designated Court but the Designated Court again dismissed
the said application. In September, 1995, challenging the said
order, A-117 filed Criminal Appeal No. 1196 of 1995 before
this Court and prayed for grant of bail. On 16.10.1995, this E
Court granted bail to him till the completion of his trial. (1995
(6) sec 189).
(r) By order dated 28.11.2006 and 31.07.2007, the
appellants (A-117, A-118 and A-124) were convicted and F
sentenced by the Designated Court as mentioned earlier.
Evidence
6. The prosecution relied on the follGwing evidence which
is in the form of:- G
(i) the evidence of their own confessions;
(ii) confessions made by other co-conspirators; (co-
accused)
H
396 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (iii) Deposition of Prosecution witnesses, viz., - Shri
Krishan Lal Bishnoi (PW-193), the then DCP,
Pandharinath H. Shinde (PW-218)- who was on
guard duty at the bungalow of Sunil Dutt, Manohar
Vasudev Shirdokar (PW-219)-Sr. Inspector of
B Police, Suresh S. Walishetty (PW-680), Rajaram
Ramchandra Joshi (PW-475), API, Panch Witness
Shashikant Rajaram Sawant (PW-211), Gangaram
Bajoji (PW-265)-independent witness and
Karmegam Algappan, PW-472 attached with
c computer cell of MTNL, Malabar Hill and;
(iv) documentary evidence.
Submissions made by Mr. Harish Salve, learned senior
counsel for the appellant (A-117)
D
7. Mr. Harish Salve, learned senior counsel for A-117, at
the foremost, submitted that reliance on the confessional
statement made by A-117 is impermissible. He pointed out that
the contention that the judgments of this Court have held that
E the prosecution can rely on the confession of an accused made
before a police officer in every case where the accused is
charged of a TADA offence, as long as the trial is joint, has
been· misconceived. He also pointed out that if the language
of the provisions led to a situation that a confession to the
police becomes admissible irrespective of the fate of the TADA
F chartJe, then it would lead to invidious discriminc;ition between
the accused, who were charged (but acquitted) under TADA
along with oth~r offences and those who were accused only of
non-TADA offences.
G 8. Mr. Harish Salve further pointed out that in Prakash
Kumar@_Prakash Bhutto vs. State of Gujarat (2005) 2 SCC
409, it was contended before the Court that "rigours of Section
12 are discriminatory and attract the wrath of Articles 14 and
21 of the Constitution as it empowers the Designated Court
H to try and convict the accused for the offences committed
. SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 397
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
under any other law along with the offences committed under A
TADA thereby depriving the rights available to the accused
under the ordinary law." This contention was rejected by holding
that "Section 12 is to take care of the oF.i:;nces connected with
or incidental to terrorist activities. The other offences being
connected and inextricably intertwined with the terrorist act." B
9. He further pointed out that a Bench of five Judges of this ·
Court in Sanjay Dutt vs. State (1994) 5 SCC 410, had
observed in paragraph 14 that
"the construction made of any provision of this Act must C
therefore be to promote the object of its enactment to enable
the machinery to deal effectively with the persons involved in,
and the associated with, terrorist and disruptive activities while
ensuring that any person not in that category should not be
subject to the rigors of the stringent provisions of the .. .. Act. D
It must, therefore, be borne in mind that any person who is
being dealt with and prosecuted iri accordance with the
provisions of the TADA must ordinarily have the opportunity
to show that he does not belong to the category of persons
governed by TADA. Such a course would permit exclusion E
from its ambit of persons not intended to be covered by it ...... "
In paragraph 17, this Court cited with approval an earlier
decision, viz., Niranjan Singh Karam Singh Punjabi vs.
Jitendra Bhimraj Bijayal, (1990) 4 SCC 76 in ~hich it was
observed that "when a law visits a person with serious penal F
consequences, extra care must be taken to ensure that those
whom the Legislature did not intend to become by the express
language of the Statute are not roped in by stretching the
language of the law." This Court read down the provisions of 1
Section 5 of TADA and held that the presumption under the G
said section in relation to possession of weapons was a
rebuttable presumption and an accused c_ould always establish
his innocence in relation to that statute.
10. According to him, only where the transactions in
respect of which an accused is convicted are interrelated · H
398 SUPREME COURT REPORTS (2013] 16 S.C.R.
A inextricably with the transactions which fall under TADA, then
Section 12 would enable the prosecution to rely upon the
confession of the accused made to a police officer. He further
pointed out that it would be a travesty to apply this principle in
the present case.
B
11. By poining out the confession of the appellant (A-117),
learned senior counsel contended that even if we believe the
statements made, it would simply establish a case of violation
of the Arms Act, there is no suggestion of any terrorist act. On
the contrary, the act was the resultant of the personal as well
C as the security need of the family of the appellant. He further
contended that judicial notice must be taken of the state of
affairs in Bombay during the post Babri Masjid demolition
period, particularly, in January, 1993. It is further pointed out that
the Legislature did not intend to cover such persons ever in a
D law dealing with terrorism. The victims of terrorism of a kind
(vicious communal riots) cannot and should not be treated at
par with perpetrators.
12. He further pointed out that the unchallenged finding of
E the trial Court in the present case is that the alleged acquisition
of 2 illegal weapons by the appellant (A-117) was at a different
po~nt of time, much before even the conspiracy in relation to
the Bombay blasts was commenced. He further contended that
the provocation for the alleged acquisition was not the
F conspiracy or any act or omission related to the Bombay blasts,
but related to an entirely different event, i.e., the riots in January
1993 and the appellant (A-117) allegedly, out of fear for his own
life and for the security of his family, acquired those weapons.
Under such circumstances, the question of any connection leave
G alone the acquisition of weapons or any act or omission relating
to the Bombay blasts is conspicuous by its absence.
13. With regard to the evidence in order to establish that
the appellant was in conversation with Anees over phone,
learned senior counsel contended that the alleged confession
H of Samir Hingora (A-53) as well as of Hanif Kandawala (A-40)
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 399
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(his partner) to the effect that the appellant (A-117) was in A
conversation with Anees relates to A-53's visit to the house of
the appellant (A-117) on the night of Hith January whereas the
call records relied on were of 16th January, 1993.
14. Learned senior counsel also pointed out that the
8
prosecution has not appealed the findings of the Designated
Court and the alleged confession which suggested that the
appellant (A-117) was· in conversation with Anees is, in fact,
unbelievable. One significant reason for the same is that it does
not explain as to how Samir could have known that the appellant
was in conversation with someone on a landline telephone C
which was inside his house. This attempt of the prosecution to
unnecessarily create prejudice against the appellant (A~117) is
baseless and, therefore, merits summary rejection. The
judgment of this Court in Sanjay Dutt's case (supra) dealt with
a pure interpretation of Section 5 of TADA. It clearly lays down D
that the possession of a weapon is not per se a TADA offence.
Section 5 mearly raises a presumption that a person, who is
in possession of unauthorized arms or ammunitions of the
specified variety, would be liable to be punished under TADA.
According to him, this Court, in fact, read down the plain E
language of Section 5 to make it applicable only as a
presumptive rule of evidence. This issue is no longer open
because it has been conclusively found that the alleged
acquisition of the weapon had absolutely nothing to do with any
of the alleged terrorist activities of the other accused in the F
conspiracy. L:earned senior counsel for the appellant further
contended that the State has not filed an appeal in the matter,
hence, stands concluded.
15. In addition to the above arguments, Mr. Surendra
Singh/le~rned senior counsel for A-118 contended that G
everything was manufactured at the Crime Branch Police
Station. He further contended that even if A-118 was having
possession of AK 56 rifle, memorandum for the same was not
signed by him and Sections 12 and 15 of TADA have no
H
400 SUPREME COURT REPORTS (2013] 16 S.C.R.
A application in his case. He further submitted that his confession
is hit by Section 25 of the Evidence Act, 1872 and his alleged
statement is compelled one which is hit by Article 21 of the
Constitution.
16. Similar to the contentions of Mr. Salve and Mr. Singh,
8 Mr. B.H. Marlapalle, learned senior counsel for A-124 also
contended that there was no constructive possession of any
weapon and A-124 was not having any knowledge about it. He
also contended that he was charged only under the Arms act
and IPC which has nothing to do with TADA and the offence
C against him, if any, ought to have been referred to the normal
criminal court and for that reason, the confession recorded
under TADA ought to have been erased. He also very much
relied on the decisions of this Court in Sanjay Dutt (supra),
Prakash Kumar (supra) and Mohd. Amin vs. CBI (2008) 15
o sec 49.
17. Learned ASG met all the contentions and took us
through the relevant materials relied on by the prosecution.
E Confesssional Statement of Sanjay Dutt (A-117)
18. The confessional statement of A-117 was duly recorded
under Section 15 of TADA on 26.04.1993 at 15.30 hrs. (First
Part) and on 28.04.1993 at 1600 hrs. (Second Part) by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
c The following extracts from the confession of the appellant are
pertinent:
"(i) I am having three valid license for fire arms and
possess 3 fire arms as mentioned below:
"';; (a) 270 Rifle of BRUNO make;
(b) 375 Magnum Double barreled Rifle; and
(c) 12 Bore Gun of Double Barrel.
1-l
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 40·1
· CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(ii) I purchased these weapons due to my fondness for A
hunting. I normally go for hunting with one friend of
mine, viz., Mr. Yusuf Nullwala as he is an
experienced hunter. I also know one friend of Yusuf
Nullwala by name Kersi Bapuji Adajenia and met
him three times. B
(iii) In December, 1~91, I had given dates for shooting
to actor producer Firoz Khan for his film Yalgar. He
had taken the whole unit for shooting in Dubai.
During one of the shootings, Firoz Khan introduced
me to one Mr. Daud Ibrahim and also to his brother
c
Anees during another shooting session. After that,
Anees used to visit us regularly during the shootings
and also at the place of our stay.
(iv) Since Anees used to come frequently, I become D
well acquainted with him.
(v) I also know the proprietors of Magnum Video,
namely Hariif Kandawala and Samir Hingora. I also
signed for acting in one of their film Sanam. Samir
E
is treasurer of Indian Motion Picture Association
(IMPA). Hanif and Samir used to come quite
frequently to my house for taking dates for shooting
from my Secretary.
(vi) Hanif told me that if I so desire, he would make F
immediate arrangements to provide an automatic
· fire arm to me for my protection. Initially, I did not
show any interest but when Hanif and Samir started
repeatedly telling me to acquire a firearm from
them, I gradually fell prey to their persistent G
suggestion and expressed my desire to Hanif and
Samir. They said that they would immediately·
provide me with an automatic fire arm.
(vii) One day, in mid Jan., in the evening, around 9.00
H
402 SUPREME COURT REPORTS [2013) 16 S.C.R.
A to 9.30 p.m., Hanif and Samir came to my house
along with one person by name Salem. I had met
this Salem once or twice earlier also.
(viii) Then these 3 fellows told me that they were coming
tomorrow morning with the weapons to be delivered
B
to you. Then they went away.
(ix) Next day morning Samir, Hanif and Salem all three
came to my house along with one other person who
is not known to me.
c
(x) They came in a Maruti Van and parked it in a Tin
shed which is used by us for parking our vehicles.
One person was sitting inside the Maruti Van. After
about 15·-20 min., he took out three rifles and they
o , said it is AK-56 rifles.
(xi) I got some cloth from my house and gave it to them.
Salem and the person who has come with him
wrapped those rifles iii the cloth and gave it to me.
E (xii) When I opened and saw it, there were three rifles
some magazines and rounds, they have told me that
there are 250 rounds. The rounds were kept in
another hand bag fetched by me.
(xiii) On seeir.ig three rifles, I got scared and told them
F
·that I wanted only one weapon. Then Hanif and
Salem told me to keep it for the time being and in
case it is not required, we will take away the rest
of the two weapons.
G (xiv) They have also shown me some brown coloured
hand-grenades and asked me whether I want that
also. l do not want these grenades· and you may
please leave my house immediately, I told them.
H (xv) I kept these rifles and ammunition in the dickey of
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 403
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
my Fiat Car No. MMU 4372 and locked it. A
(xvi) On the same night, I removed the three rifles and
ammunition, kept the same in a handbag which I
kept in my private hall which was on the 2nd floor
of our bungalow.
B
(xvii) Two days thereafter, since I had considerable
mental tension, I contacted Hanif Kandawala and
requested him to take away the weapons. He said
that he would arrange to send somebody to collect
the same. After two days, Hanif Kandawala and C
Samir Hingora along with Salem came to my house
in the evening in a car. I returned two AK-56 rifles
and a part of the ammunition to them but retained
one AK-56 rifle and some ammunitions with me.
D
(xviii) Around Sept. 1992, during one of my shooting at
R.K. Studio, one Kayyum, who is a member of
Dawood Ibrahim gang, who had also met me in
Dubai at the time of shooting of the film Yalgar
approached me with a stranger. They offered me E
a 9 mm pistol with ammunition. When I saw it, I liked
it and had a strong desire to purchase the same.
They offered it to me for a sum of Rs.40,000/-. I
paid the said amount in cash to them at my house
and purchased the same. I do not know the name F
of that person who was brought by Kayyum.
However, he was aged about 35-38 years,
apparently, Muslim, dark complexion, height about
5'8'', fat built, moustache, medium curly hair,
wearing shirt and pant. I will be able to identify him
if brought before me. He also handed over 8 rounds G
of the said pistol.
(xix) On 2nd April, I left for Mauritious for shooting of the
film 'Aatish'. There I was informed by a casual
contact that Hanif and Samir have been arrested H
404 SUPREME COURT REPORTS [2013] 16 $.C.R.
A by the Bombay Police for their complicity in bomb
blasts.
(xx) On hearing the news, I got frightened as these
fellows had given me the AK-56 rifles and they may
tell my name to the police to involve me in the bomb
B
blasts case. I contacted my friend Mr. Yusuf
Nullwala on telephone and asked him that
something is lying in a black coloured bag which
is kept in my hall at the second floor of my house
and it should be taken away immediately and
c destroy the things completely which are there in the
bag, otherwise, I shall be in a great trouble. By this
time, the news about my possession of AK-56 rifles
had appeared in the press and on coming to know
about this, my father asked me about the
D truthfulness of this news, but I denied the same. My
anxiety about the whole episode became
unbearable and I decided to return fo Bombay in
between. My father informed my fligl'lt details to the
Police and I was picked up by police as soon as I
E landed at Bombay and I confessed the whole things
to them."
19. The abovesaid confession highlighted the crime for
which the appellant-Sanjay Dutt has been charged. The
F following facts emerge from the abovesaid confession:
(i) He was already having three licensed firearms.
(ii) He developed acquaintance with Anees Ibrahim -
brother of Dawood Ibrahim during a film-shooting
G in Dubai.
(iii) He expressed his desire to Samir Hingora (A-53)
and Hanif Kandawala (A-40) to have an automatic
fire-arm.
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 405
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(iv They came with one Salem with whom Sanjay Dutt A
was already acquainted with and they assured him
of the delivery of weapons the next day in the
morning.
(v) They came in the morning of 16.01.1993 with one B
other person and delivered 3 AK-56 Rifles and 250
rounds.
(vi) After 2 days, he returned 2 AK-56 and ammunitions
but retained 1 AK-56 and some ammunition.
c
(vii) In April, while he was shooting at Mauritius, he
heard the news of the arrest of Samir and Hanif, on
which, he got frightened and requested his friend
Yusuf Nulwalla to destroy the weapons.
D
20. The appellant (A-117) not only implicates himself in the
above said statement but also amongst others the appellant-
Yusuf Nulwalla (A-118). The abovesaid confession has been
duly recorded by PW-193 who has proved the compliance with
the provisions of law while recording the confession. The
abovesaid confession is a substantive piece of evidence and E
it has been held in a series of judgments that the confession
can be the sole basis of conviction, if recorded in accordance
with the provisions of TADA. Further, the confessional
statement establishes the unauthorized possession ofweapons
in the notified area of Bombay. F
Confessional Statements of co-accused:
21. The confession of the appellant (A-117) is
substantiated and corroborated with the confession of other co-
accused, namely, Samir Hingora (A-53), Baba @ Ibrahim Musa G
Chauhan (A-41), Mansoor Ahmed (A-89), Hanif Kandawala (A-
40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-124)
which are as under.
Confessional Statement of Samir Ahmed Hingora (A-53) H
406 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Confessional statement of A-53 under Section 15 of
TADA was recorded on 18.05.1993 (17:00 hrs.) and
20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. The said confession reveals
as under:
B
(i) He started a Video Library and Mustafa Dossa @
Mustafa Majnoo (A-138) - brother of Mohd. Dossa
(AA) was a member of his Video Library and he
had 2-3 shops in the same market.
c (ii) Tiger Memon used to work with Mustafa Dossa and
became a friend of A-53.
(iii) A-53 started film distribution and production
business by the name of 'Magnum' in partnership
D with Hanif Kandawala (A-40 - since died).
(iv) Anis Ibrahim (AA) became a member of his Video
Library and was referred to by everyone as
Anisbhai since he was the brother of Dawood
Ibrahim.
E
(v) A-53 received a payment of Rs. 21.90 lacs from
Ayub Memon sent through someone on 13.03.1993
(one day after the blasts) as advance for purchasing
.rights of films.
F
(vi) A-53 had visited Dubai and met Anis Ibrahim many
times and sold the rights of many films to M/s Kings
Video, managed by Anis. Anis also controls Al-
Mansoor Video Company through Chota Rajan.
G (vii) On 15.01.1993, A-41 and A-139 met A-53 at his
office. Anis Ibrahim called him from Dubai and said
that A-41 and A-139 are his men and they have
some weapons which have to be delivered to A-
117 at his residence.
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 407
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(viii) A-53 and A-139 went to Sanjay Dutt's (A-117) A
house where he hugged Abu Salem and asked him
about the weapons. A-117 then told A-139 to bring
the weapons nexj: day at 7 am.
(ix) On 16.01.1993, A-53 led A-139 and A-41 to the
B
house of Sanjay Dutt. A-139 and A-41 were in a
blue maruti van while A-53 was in his own car.
(x) At the residence of A-117, A-53 saw that the blue
van was containing 9 AK-56 rifles and hand
grenades and they gave 3 AK-56 rifles and some c
magazines to A-117. A-117 also asked for some
hand grenades which were put in a black bag by
A-139.
(xi) A-139 kept the rifles in a fiat car belonging to A- D
117. The hand grenades were kept in the car of A-
53 and he left the car at A-117's residence and
took an auto rickshaw.
(xii) A-53 collected his car from A-117's residence after
3 days when he called him and said that grenades E
have been taken out.
Confessional statement of Baba @ lbhrahim Musa
Chauhan (A-41)
F
Confessional statement of A-41 was recorded under Section
15 of TADA on 23.04.1993 (12:45 hrs.) and 25.04.1993 (13:05
hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zon~
X, Bombay. The said confession shows that:
(i) A-41 was introduced to Anees Ibrahim Kaskar G
(AA)-brother of Dawood Ibrahim and Abu Salem
when he had been to Dubai and, thereafter, he
developed good acquaintance with both of them.
(ii) On 15.01.993, A-139 telephoned A-41 and asked H
408 SUPREME COURT REPORTS [2013] 16 S.C.R.
A him to arrange for a garage having facility of closing
it by shutter.
(iii) Abu Salem is an extortionist and worked for Anees
Ibrahim.
B (iv) Thereafter, A-139 went to the office of A-41 and
inquired if he had received a phone call from Anees
Ibrahim. On replying in the negative, A-139 went to
a nearby STD booth and called Anees and then
made A-41 talk to him, at that time, A-41 told him
C that the garages, as required, cannot be arranged
by him.
(v) Thereafter, at the behest of Anees Ibrahim (AA), A-
41 along with A-139 went in search for garages in
D Bandra and Pali Hills area and Samir Hingora (A-
53) and Hanif Kandawala (A-40) also joined them.
(vi) Since they did not find any garage, A-139, A-53
and A-41 informed the same to Anees over phone
who was in Dubai and it was decided that the work
E of finding out the garage would be carried out the
next day. In the meanwhile, A-139 told A-41 that he
will keep 2 to 3 AK-56 rifles with him for 2/3 days.
(vii) On the next day i.e. 16.01.1993, A-139 went to the
F house of A-41 and told him to take a white coloured
Maruti van bearing registration number of Gujarat,
which was parked near the Arsha Shopping Centre,
and to reach the office of Magnum Video.
Accordingly, he went to the said place and from
there he along with A-139 and A-53, went to the
G
house of A-117.
(viii) At that time, A-139 introduced A-41 to A-117.
(ix) A-41 parked the above white coloured Maruti Van
H which he had driven to reach the house of Sanjay
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 409
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Dutt in his garage.
(x) There were 9 AK-56 rifles, 80 hand grenades,
1500/2000 cartridges and 56 magazines in the
cavities beneath the rear seat of the aforesaid
Maruti Van as well as inside the lining near the front 8
and rear side doors, out of which, 3 rifles, 9
magazines, 450 bullets and 20 hand grenades
were asked to be kept by A-139 in Sanjay Dutt's
Fiat car.
(xi) Accordingly, A-41 shifted the cartridges and C
· magazines to a sports bag and kept it in Sanjay
Dutt's car.
(xii) A-53 packed the above mentioned 20 grenades in
another sports bag and kept it in Sanjay Dutt's car D
and gave another long sports bag to A-41 in which
he filled 3 rifles, 16 magazines, 25 hand grenades
and 750 cartridges. A-41 took the said bag to his
house and hid it beneath his bed and on the next
day, A-41 loaded all the bullets in the magazines E
of the rifles. · ·
Confessional Statement of Manzoor Ahmed Sayyed
Ahmed (A-89) ·
Confessional statement of A-89 under Section 15 of TADA F
was duly recorded on 24.05.1993 (11:15 hrs.) and 26.05.1993
(17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193) the then
DCP, Zone Ill, Bombay. The said confession reveals as under:
(i) A-89 was a good friend of Abu Salem.
G
(ii) He owns a Maruti 1000 bearing No. MP 23 B-
9264.
(iii) On 22/23rd January, 1993, A-89 metA~139. A-139
H
410 SUPREME COURT REPORTS [2013) 16 S.C.R.
A gave the keys of his car to A-41 who kept a black
bag of weapons in it.
(iv) A-139 and A-89 then went to the first floor of 22
Mount Mary, Vidhyanchal Apts. They gave the bag
to an old lady, viz., Zaibunisa Anwar Kazi (A-119)
B
and told her that the arms were for the purpose of
causing riots, and were sent by Anees Ibrahim -
brother of Dawood Ibrahim.
(v) A-119 looked at the contents of the bag and then
C kept it at her residence.
(vi) After 8 days, A-139 called A-89 again and together
with A-40, they went to the residence of A-117
where he gave them a blue rexin bag and a carton.
D (vii) Abu Salem and A-89 then went to the house of A-
119 and gave the carton and the bag to her. Abu
Salem told A-119 to keep those weapons safely as
they were to be t1sed for orchestrating bomb blasts.
E 22. The abovesaid confessional statements of the co-
accused clearly establish the case against the appellant-Sanjay
Dutt and also corroborate with each other in material particulars.
The following facts emerge from the abovesaid confessional
statements:-
F
(i) The appellant .had acquired 3 AK-56 rifles and its
ammunitions unauthorisedly.
(ii) Samir Hingora (A-53); Hanif Kandawala (A-40) and
Salem (A-139) provided the above said arms and
G ammunitions to the appellant at his residence.
(iii) On being frightened after seeing the weapons, the
appellant contacted Hanif Kandawala (A-41) and
requested him to take away the weapons.
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 411
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(iv) Abu Salem came after few days and the appellant A
returned 2 AK-56 rifles and also ammunitions, but
retained one AK-56 rifle and some of its
ammunitions.
Confessional Statement of the appellant - Yusuf Mohsin 8
Nulwalla (A-118)
23. Confessional statement of A-118 under 15 of TADA
was recorded on 27.04.1993 at (14:20 hrs.) and 29.04.1993
at (16:00 hrs.) by Shri K.L. Bishnoi, the then DCP, Zone-Ill,
Bombqy. The following extracts from the confession of the C
appell~nt are pertinent:-
"Somewhere around the year, 1970, I came in contact with
one person by name Azhar Hussain and later on I became
very friendly with him. He was cousin pf Sanjay Dutt through D
him I met Sanjay Dutt and developed friendship with him
as he was also fond of hunting, fishing and staying in camp
life. After ttiis myself and Sanjay Dutt used to go out for
hunting with othe(friends occasionally. I came in contact
with Sanjay Dutt's father and other family members due to E
my friendship with Sanjay Dutt and his cousin Azhar
Hussain. Later on Sanjay Dutt had started taking on drugs
and because of this he used to remain out off from us and
started avoiding me. However, my contact with Sanjay's
father and other family members was as it is and they . F
normally used to ask me to convince Sanjay to give up.the
drugs but my convincing and persuasion did not help him."
"Somewhere in the year 1984, Sanjay has taken me out
to one of his friend by name Tariq Ibrahim's place in
Kanpur. From there his friend had taken us out of his farm G
in Tarai and we stayed there fqr one week. During the stay,
I casually mentioned to Tariq Ibrahim that I am quite fond
of guns but I am not getting arms license. Then he told me
that don't worry my brother is Supdt. of Police at Ratlam
·and he will get you arms license as and when you wanted. H
412 SUPREME COURT REPORTS [2013) 1.6 S.C.R.
A Later on, I contacted his brother Asif Ibrahim, who was
Supdt. of Police, Ratlam to give me arms license, he did
it and subsequently he gave me two more arms licenses.
After getting these licenses, I was gifted two guns by Sunil
Dutt out of which one was 12 Bore DBBL gun and another
B was 22 Rifle. I purchased the 3rd weapon, which is single
barrel 375 Magnum Rifle."
"In the meanwhile, I had come in contact with one Kesi
Bapuji Adajenia, who was also in steel fabrication
business and was also an old hunter so we became
c friends. He also used to give me sub contracts for steel
fabrication. I had introduced him to Sanjay Dutt also and
later on he went with us for hunting to a place near Surat
once."
D "Later on Sanjay Dutt became quite popular in Hindi
·movies and most of the times he used to remain busy in
his shootings. Many times, I also used to get to the place
for shooting to meet Sanjay Dutt. He had taken me to
Bangalore, Mysore, Ooty, Kodai Kanai and various other
E places during this outdoor shooting to these places.
Normally, I used to meet Sanjay two to three times in a
.week either at his house or at the place of shootings."
"In the first week of April, he left for Mauritius and I got b1,1sy
with my normal· business. Then one d,ay, I read. in
F newspaper the news item that "Sanjay dutt is in possession
of AK-56 Rifles."
In the same day evening, I received a telephone call at my
residential telephone from Sanjay dutty, who was speaking
G from.Mauritius. He told me that there is something which
is kept in a black coloured bag kept in his room at his
residence (i.e. 58, Pali Hill Sandra, Bombay-50) and I shall
take that bag from his room and destroy the things inside
it immediately otherwise he will be in a great trouble. ·
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR: 413
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Next day morning, I went to Sanjay's residence and took A
the black bag from his second floor room and opened it
there only.
When I opened it I found it containing one AK-56 rifle, two
empty magazines and approximately two hundred fifty 8
rounds of AK-56, one pistol and one loaded magazines
of pistol.
I took out the AK-56 rifle there only and cutted it in pieces
with a hexa, which I had taken along with me then I put all
the cut pieces in the bag and came to my friend Kersi C
Bapuji Adajenia's house as he used to keep all the tools
of his steel fabrication in the godown in his house.
I told him the whole sto!)' and also that Sanju is in great
trouble; so I required your help in melting and destroying D
the cutted pieces of AK-56 rifles ..Both of us came to his
godown and I tried to melt the cutted pieces of AK-56 with
the help of cutter, but could not succeed, then my friend
Adajenia melte~ all the pieces of AK-56 rifle with the nelp
of gas cutter. E
After that I gave the pistol to Kersi Bapuji Adajenia asked
him to burn it also after sometime. I collected the melted
remains of AK-56 Rifle and threw it in the sea at Marine
Drive.
F
Next day morning, I keP.t the rounds of AK-56 in two
separate bundles wrapped in papers and threw. it in the
sea in front of Oberoi Towers and returned to my home.
Next day in the early morning, I got telephone call from G
Sanjay Dutt at my residence No. 3755092 and I informed
him that your work is done and had normal talk with Sanjay
Dutt.
After this, I spoke to Kersi Bapujt Adajenia once and told
him that you burn the pistol a!so but he told me that you H
414 SUPREME COURT REPORTS [2013] 16 S.C.R.
A do no worry about this. I will take care of this. Then I stayed
at my house and did my normal business till I was picked
up by the Police."
24. From the abovesaid confession, the following facts
emerge:
8
(i) Yusuf Mohsin Nulwalla is an old and well known
friend of Sanjay Dutt.
(ii) In the month of April, when Sanjay Dutt was in
c Mauritius, A-118 was asked to destroy certain
objects kept at his residence.
(iii) On reaching there, he discovered AK-56 and a
pistol and ammunition.
D (iv) He tried to destroy them.
(v) He took all these objects to a friend of his, namely,
Kersi Bapuji Adajania (A-124)
(vi) A-124 heJped him to destroy the same but he
E
retained .the pistol with him.
(vii) Upon being reminded about destroying the pistol,
A-124 assured A-118 that he would take care of it.
F 25. In view of the above, it is seen that the appellant (A-
118), upon instructions, caused destruction of evidence related
to an offence. which were unauthorisedly possessed automatic
firearms/weapons in a notified area, attracting the provisions
of the Arms Act. The confession of A-118 not only involves and
G implicates him, but also implicates Kersi Adajania (A-124). The
confession of A-118 corroborates with the confession of A-117
as well as A-124.
Confessional Statement of the appellant - Kersi Bapujl
Adajania (A-124)
H
SANJAYDUTI (A~117) v. STATE OF MAHARASHTRA, THR. 415
CBI, (STF}, BOMBAY [P. SATHASIVAM, J.]
26. The confessional statement of A-124 under Section 15 of A
TADA was recorded on 27.04.1993 (15:10 hrs.) and on
30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP,
Zone-Ill, Bombay. The following extrar•-. from the confession of
the appellant-Kersi Bapuji Adajenia are relevant:-
B
"I am Kersi Bapuji Adajenia, age 63 years. I stay at 605,
Karim Manzil, JSS Road, Bombay-2 with my family. I
normally take contracts for steel fabrications and the work
is done at the sites of the parties only. I normally keep the
equipments and the tools for steel fabrications at the C
temporary godown in my house and I take these
equipments to the sites as and when it is required. Due
to the work load, I have purchased two or three sets of all
the equipments and tools. Whenever there is a heavy work
load, I give the excess work on sub-contracts to other
persons. Sometimes, I provide my own tools and D
equipments to sub-contractors. Yusuf Mohsin Nullwala was
my one such sub-contractor. I had come in contact with him
about ten years back. Since then, I used to give him sub-
contracts regularly.
E
During the days of my youth, I used to be very fond
of hunting and used to go out for hunting occasionally with
my friends. But ·I had given up this hobby (hunting) since
1969 onwards. This, Yusuf Nullwalla was also very fond of
hunting and he used to talk a lot about hunting and about F
his friend cineactor Sanjay Dutt. He introduced me with him
about seven years back and they had taken me out once
for hunting to a place near Surat, I stayed with Sanjay, Yusuf
and three - four their other friends there for two days· and
we all came back. After that I met Sanjay Dutt for two or G
three times more.
Somewhere around the end of first week of April, 1993,
one day Yusuf Mohsin Nullwalla came to my house around
10.00 a.m. in the morning, he was having a black coloured
Rexin bag hung to his shoulder with him and he said to H
416 SUPREME COURT REPORTS [2013) 16 S.C.R.
A me that Sanjay Dutt had telephoned him saying that on AK-
56 rifle and other things are lying at this house and police
had come to know about his and he is in great trouble and
he has asked me to collect it and destroy it, so I had gone
to his house and collected it and I have also cut it into
B pieces and now I want gas cutting set to completely
destroy it, then he showed me the cut pieces of AK-56 rifle
by opening the bag.
Since I have read about Sanjay Dutt's possession of AK-
56 rifle and police being after him in the newspaper about
c a day or two earlier. So initially, I told him that I do not went
to get involved in this thing. Then Yusuf said to me that in
case he goes out to some other place for destroying it he
is likely to be caught and requested me to again to give
my gas cutter, so I agreed. Then he went to my godown
D and started destroying the cut pieces of AK-56 rifle with
the help of gas cutter.
I also went to the place to see that no mishap takes place.
When I went there I saw that he was fumbling with the gas
E cutter and was in no position to destroy the pieces
properly. Then I adjusted the gas and started melting the
pieces of AK-56 rifle myself with the gas cutter. These
parts were having lot of grease on them so lot of smoke
was coming out. Somehow, I managed to destroy all the
F parts of AK-56 which he had brought in the bag.
Then he took out one pistol from the bag and wanted me
to destroy that alo but I was quite tired and had some
breathing problem due to the smoke which was coming
out while the pieces of AK-56 reifle were being destroyed.
G So I told him to leave te weapon with me and I will destroy
it some other time. Then he collected the meted remains
of AK-56 rifle in a plastic bag, gave the pistol to me for
destruction and he went away. After two days, he
telephoned me and enquired whether I have destroyed
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 417
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
pistol or not. I told him not to worry about that. A
As I was to go to Calcutta on 9th April morning so I
. telephoned and called a friend of mine, by name Rusi
Framrose Mulla to my house. He came to my house next
day morning and I gave the pistol to him and asked to keep B
it in sae custody as I was going out to Calcutta. I did not
tell him anything about the history of the pistol and told him
that I will collect it as soon as I come back from Calcutta.
27. From the above confession, the following facts
emerge:- c
(i) A-118 was a sub-contractor of A-124. A-124 was
also acquainted with A-117. All three of them were
fond of hunting and, in fact, went together for hunting
once. D
(ii) A-124 had his workshop in his house where he was
keeping all his tools including the gas cutter.
(iii) In or around April, A-118 contacted A-124 in order
to destroy an AK-56 and a pis:1ol belonging to E
Sanjay Dutt (A-117). '
(iv) A-124 permitted him to do so.
(v) A-124 personally destroyed AK-56.
F
(vi) A-124 kept with himself the pistol.
28. The abovesaid confession establishes the charge
framed against A-124 that he knowingly destroyed evidence
related to an offence. A-124 was thereafter in unauthorized G
possession of the fire-arm. The abovesaid confession also
corroborates in material particulars, the confession of A-118.
29. The abovesaid confessions of the appellants, viz., A-
117, A-118 and A-124 have been recorded by PW-193, who
has proved that the said confessions were recorded after H
418 SUPREME COURT REPORTS (2013) 16 S.C.R.
A following the requirements of the provisions of Section 15 of
TADA. It is relevant to point out that notwithstanding vigorous
cross-examination of the witness (PW-193), he stood firmly
without being shaken. A long line of arguments was placed
before the Designated Court attacking the voluntariness of the
B confession on various occasions, which had been considered
in detail by the trial Court and we fully agree with the same.
Law relating to Confessions under TADA
30. It is contended on behalf of the appellants that their
C confessional statements, and the confessional statements of
the co-accused relied upon by the prosecution against them,
are confessions recorded by a police officer, and it is hence
not proper to base Jhe conviction on the basis of the said
confessions under Section 15 of TADA. Section 15 of TADA
D reads as under:
15. Certain confessions made to police officers to be
taken into consideration.- O) Nothwithstanding anything
in the Code or in the Indian Evidence Act, 1872, but
subject to the provisions of this section, a confession made
E
by· a person before a police officer not lower in rank than
a Superintendent of Police and recorded by such police
officer in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds
or images can be reproduced, shall be admissible in the
F trial of such person or [co-accused, abettor or conspirator]
for an offence under this Act or rules made thereunder:
Provided that co-accused, abettor or conspirator is
charged and tried in the same case together with the
G accused.
31. In Jayawant Dattatray Suryarao vs. State of
Mharashtra, (2001) 10 SCC 109, this Court considered in
detail the evidentiary value and admissibility of a confessional
H statement recorded under Section 15 of TADA and held that it
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 419
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
is settled legal position that a confessional statement recorded A
by a police officer is in fact, substantive evidence, and that the
same can be relied upon in the trial of such person or of a co-
accu sed, an abettor or a conspirator, so long as the
requirements of Section 15 and of the TADA rules are complied
with. It was observed: B
"60 ..... Confessional statement before the police officer
under Section 15 of the TADA is substantive evidence and
it can be relied upon in the trial of such person or co-
accused, abettor or conspirator for an offence punishable C
under the Act or the Rules. The police officer before
recording the confession has to observe the requirement
of sub-section (2) of Section 15. Irregularities here and
there would not make such confessional statement
inadmissible in evidence. If the legislature in its wisdom
has provided after considering the situation prevailing in D
the society that such confessional statement can be used
as evidence, it would not be just, reasonable and prudent
to water down the scheme of the Act on the assumption
that the said statement was recorded under duress or was
not recorded truly by the officer concerned in whom faith E
is reposed."
It was further held by this Court, that minor irregularities do
not make the confessional statement inadmissible as
substantive evidence and observed as under: F
"50. In this view of settled legal position, confessional
statement is admissible in evidence and is substantive
evidence. It also could be relied upon for connecting the
co-accused with the crime. Minor irregularity would not
vitiate its evidentiary value ........ " G
32. In Ravinder Singh @ Bittu vs. State of Maharashtra,
(2002) 9 sec 55, this Court, while considering the reliability
of a confession recorded under Section 15 of TADA against
the maker, as well as the co-accused, held that after State vs. H
420 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Nalini, Kalpnath Rai vs. CBI, it does not reflect the correct
position of law. It was observed:
"13. In Kalpnath Rai v. State (through CBI) it was observed
that the confession made by one accused is not
substantive evidence against a co-accused. It has only a
B
corroborative value. In the present case, we are, however,
primarily concerned with the confession made by the
maker i.e. the appellant himself. Besides this confession,
there is also a confession made by co-accused Nishan
Singh which too implicates the appellant in commission of
c the offence of the bomb blast in the train. The observations
made in Kalpnath Rai case were considered in State
through Supdt. of Police, CBI/SIT v. Nalini, a decision by
a three-Judge Bench. It was held that the confession
recorded under Section 15 of the TADA Act is to be
D considered as a substantive piece of evidence not only
against the maker of it but also against its co-accused. In
this view, the observations in Kalpnath Rai.case do not
represent the correct position of law.
E 17. It is thus well established that a voluntary and truthful
confessional statement recorded under Section 15 of the
TADA Act requires no corroboration. Here, we are
concerned primarily with the confessional statement of the
maker. The weight to be attached to the truthful and
F voluntary confession made by an accused under Section
15 of the TADA Act came to be considered again in a
recent three-Judge Bench decision in Devender Pal Singh
v. State of NCT of Delhi. It was held in the majority opinion
that the confessional statement of the accused can be
relied upo.n for the purpose of conviction and no further
G
corroboration is necessary if it relates to the accused
himself.
18. There can be no doubt that a free and voluntary
confession deserves the highest credit. It is presumed to
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 421
CBI, (STF), BOMBAY [P. SATHASIVAM, ll
flow from the highest sense of guilt. Having examined the A
record, we are satisfied that the confession made by the
appellant is voluntary and truthful and was recorded, as
already noticed, by due observance of all the safeguards
provided under Section 15 and the appellant could be
convicted solely on the basis of his confession." B
33. In Mohmed Amin vs. Central Bureau of Investigation,
(2008) 15 sec 49, it was observed:
"28. In Devender Pal Singh case majority of three~Judge
Bench made a reference to Gurdeep Singh case and C
Nalini case and held (at SCC pp. 261-62, para 33) that
whenever an accused challenges the voluntary character
of his confession recorded under Section 15(1) of the Act,
the initial burden is on the prosecution to prove that all the
conditions 'Specified in that section read with Rule 15 of D
the Rules have been complied with and once that is done,
it is for the accused to show and satisfy the court that the
confession was not made voluntarily. The Court further held
that the confession of an accused can be relied upon for
the purpose of conviction and no further corroboration is E
necessary if it relates to the accused himself. However, as
a matter of prudence the court may look for some
corroboration if confession is to be used against a co-
accused though that will be again within the sphere of
appraisal ofevidence. F
29. In Jameel Ahmed case a two-Judge Bench after
discussing, considering and analysing several precedents
on the subject, including Devender Pal Singh case, culled
out the following propositions: (Jameel Ahmed case, SCC
pp. 689-90, para 35) G
"(1) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of the
TADA Act and the Rules made thereunder, and if the same
is found by the court as having been made voluntarily and H
422 SUPREME COURT REPORTS [2013) 16 S.C.R.
A truthfully then the said confession is sufficient to base a
conviction on the maker of the confession.
(i1) Whether such confession requires corroboration or not,
is a matter for the court considering such confession on
facts of each case.
B
(iii) In regard to the use of such confession as against a
co-accused, it has to be held that as a matter of caution,
a general corroboration should be sought for but in cases
where the court is satisfied that the probative value of
c such confession is such that it does not require
corroboration then it may base a conviction on the basis
of such confession of the co-accused without
corroboration. But this is an exception to the general rule
of requiring corroboration when such confession is to be
D used against a co-accused.
(iv) The nature of corroboration required both in regard to
the use of confession against the maker as also in regard
to the use of the same against a co-accused is of a
general nature, unless the court comes to the conclusion
E
that such corroboration should be on material facts also
because of the facts of a particular case. The degree of
corroboration so required is that which is necessary for a
prudent man to believe in the existence of facts mentioned
in the confessional statement.
F
(v) The requirement of sub-rule (5) of Rule 15 of the TADA
Rules which contemplates a confessional statement being
sent to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate who, in turn, will have to send the same
G to the Designated Court is not mandatory and is only
directory. However, the court considering the case of direct
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of each case
whether such direct transmission of the confessional
H statement in the facts of the case creates any doubt as to
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 423
CBI, (STF), BOMBAY[P. SATHASIVAM, J.]
the genuineness of the said confessional statement." A
30. In Abdulvahab Abdul Majid Shaikh case this Court
rejected the argument raised on behalf of the appellant that
the confession made by him cannot be treated as voluntary
because the ·same had been retracted and observed:
B
"9 . ... The police officer was empowered to record the
confession and in law such a confession is made
admissible under the provisions of the TADA Act. The
mere fact that A-9 Musakhan @ Babakhan retracted
subsequently is not a valid ground to reject the confession. C
The crucial question is whether at the time when the
accused was giving the statement he was subjected to
coercion, threat or any undue influence or was offered any
inducement to give any confession. There is nothing in the
evidence to show that there was any coercion, threat or D
any undue influence to the accused to make the
confession."
31. The ratio of the abovenoted judgments is that if a
person accused of an offence under the Act makes a E
confession before a police officer not below the rank of
Superintendent of Police and the same is recorded by the
officer concerned in writing or on any mechanical device
like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, then such
confession is admissible in the trial of the maker as also F
the co-accused, abettor or conspirator not only for an
offence under the Act but also for offence(s) under other
enactments, provided that the co-accused, abettor or
conspirator is charged and tried in the same case along
with the accused and the court is satisfied that G
requirements of the Act and the Rules have been complied
with. Whether such confession requires corroboration
depends on the facts of the given case. If the court is
convinced that the probative value of the confession is such
that it does not require corroboration then the same can H
424 SUPREME COURT REPORTS [2013] 16 S.C.R.
A be used for convicting the maker and/or the co-accused
under the Act and/or the other enactments without
independent corroboration."
After considering the confessions of the accused in the
aforesaid case, it was held as follows:
8
"81. Therefore, keeping in view the provisions of Section
15 of the Act as interpreted by this Court in Gurprit Singh
case, Nalini case, S.N. Dube case, Lal Singh case,
Devender Pal Singh case and Jameel Ahmed case, we
C hold that the appellants are guilty of offence under Section
302 read with Section 120-B IPC and no independent
corroboration is required for sustaining their conviction."
34. In Jameel Ahmed & Anr. vs. State of Rajasthan,
D (2003) 9 SCC 673, this Court held that Section 30 of the
Evidence Act has no role to play in deciding the admissibility
of confession recorded under Section 15 of TADA. This Court
held that:
"23 . .... it is relevant to note that Section 15 of the TADA
E Act by the use of non obstante clause has made
confession recorded under Section 15 admissible
notwithstanding anything contained in the Indian Evidence
Act or the Code of Criminal Procedure. It also specifically
provides that the confession so recorded shall be
F admissible in the trial of a co-accused for offence
committed and tried in the same case together with the
accused who makes the confession. Apart from the plain
language of Section 15 which excludes the application of
Section 30 of the Evidence Act, this Court has in many
G judgments in specific terms held that Section 30 of the
Evidence Act has no role to play when the court considers
the confession of an accused made under Section 15 of
the TADA Act either in regard to himself or in regard to
his co-accused."
H
SANJAY.DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 425
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
35. In Ahmed Hussein Vali (supra), this Court, while relying A
upon Na/ini (supra), held that if the confession made by an
accused is voluntary and true, then it is admissible against the
co-accused as a substantive piece of evidence, and that minor
and curable irregularities in the recording of the confession like
omission in obtaining the certificate of competent office with B ·
respect to confession do not affect the admissibility of the said
evidence. It was further observed:
"74 .... As far as the admissibility of the confessional
statement of A-27 is concerned with regard to his co- -
accused in this case, it is not vitiated because of the C
amendment and it is rightly used as a major evidence for
the trial of his co-accused by the Designated Court. As this
confessional statement was made complying with all the
procedural essentials as provided for by the TADA Act and.
the Rules it can be a valid ground for the conviction when D
corroborated with the confessional statement of the other
four accused, namely, A-1, A-2, A-3 and A-20 respectively
which have been made prior to the amendment of the
Act. ... "
E
36. In Mohd. Farooq Abdul Gafurvs. State of Maharashtra
(2010) 14 SCC 641, this Court has upheld the conviction, inter
a/ia, relying upon the confession of the accused, as well as the
confession of the co-accused in determining the guilt of the
accused. The relevant observations in the judgment are as F
under:-
"76. The confessional statements of Accused 5 and 6 are
also relevant to prove and establish the involvement of
Accused 1 with the incident. In the said confessional
statement, Accused 5 had stated that on 2-3-1999, G
Faheem informed Accused 5 on the phone that he would
be sending two pistols with Accused 1. In fact, Accused 1
came to the house of Accused 5 to deliver the said pistols.
77. It has also come out in the said confessional statement H
'
426 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (of Accused 5) that out of the two pistols one was not in
order and so the same was returned to Accused 1 and
that on 5-3-1999 Accused 5 called Accused 1 who
informed him that he (Accused 1) has spoken to Chhota
Shakeel over the phone and informed him about the
B incident on the previous day.
78. Accused 5 has also stated in his confessional
statement that Accused 1 informed him that Chhota
Shakeel had asked Accused 1 to pay Accused 5 some
money. Thereupon, Accused 1 paid Rs 20,000 to
c Accused 5 at Vakola and Accused 5 and 6 together
informed Accused 1 that they were going to Kolkata.
81. The High Court disbelieved the aforesaid confessional
statements of Accused 5 and 6 on the ground that the said
D confessional statements were inadmissible in evidence
thereby it reversed the findings of the trial court. The High
Court came to the aforesaid conclusion on the basis that
there is no evidence to show that any preliminary warning
was given prior to the recording of the confessional
E statements and that in the absence of proof of the fact that
a warning was given prior to the recording of the
confessional statements, the same were inadmissible in
evidence. In our considered opinion the High Court
ignored the fact that there is evidence of PW 64, the typist
F who had deposed that the preliminary warnirg was in fact
given which was so recorded on 23-7-1999.
82. Considering the facts and circumstances of the case
we find no reason not to accept the said statement of PW
64, the typist. We also hold that the aforesaid confessional
G statement of the co-accused could be the basis of
conviction under the provisions of MCOCA.
83. We, therefore, hold Accused 1 guilty of all the charges
which were already found to be proved and established
H by the trial court and. affirmed by the High Court. So far as
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 427
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
the sentence is concerned we, however, uphold and A
confirm the sentence passed by the High Court and also
restore the punishment awarded by the trial court under
Section 212 read with Section 52-A read with Section
120-B IPG.
B
84. So far as the conviction (of Accused 1) under MCOCA
is concerned, it is quite clear that conviction could be
based solely on the basis of the confessional statement
itself and such conviction is also permissible on the basis
of the confessional statement of the co-accused which
could be used and relied upon for the purpose of C
conviction.
85. In State v. NalinP- it was held by this Court in the context
of Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (now repealed), which is pari D
materia with Section 18 of MCOCA that the evidence of
a co-accused is admissible as a piece of substantive
evidence and in view of the non obstante clause, CrPC will.
not apply."
E
37. It is clear that a confessional statement duly recorded
by a Police Officer is a substantive piece of evidence and the
same can be relied upon in the trial of such person or of the
co-accused, abettor or c::onspirator if the requirements of
Section 15 of TADA, and the rules framed thereunder are
complied with. The police officer, before recording the F
confession, has to observe the requirement of Section 15(2)
of TADA. A voluntary and truthful confessional statement
recorded under Section 15 of TADA requires no corroboration.
However, as a matter of prudence, the court may look for some
corroboration if confession is to be used against co-accused. G
It is made clear that whether such confession requires
· corroboration or not is a matter for the court to consider such
confession on the facts and circumstances of each case. If the
confession made by an accused is voluntary and true, it is
admissible against co-accused as a substantive piece of H
428 SUPREME COURT REPORTS [2013] 16 S.C.R.
A evidence and minor and curable irregularities in recording of
confession, such as omission in obtaining the certificate of the
competent officer with respect to the confession do not affect
the admissibility of the said evidence.
Retracted Confessions:
8
38. It has been contended that since the confession of the
appellant - Sanjay Dutt (A-117) has been retracted, hence, it
is not trustworthy and it would not be safe to place reliance upon
it. It is settled law that a voluntary and free confession, even if
C later retracted, can be relied upon.
39. In the case of the appellant - Sanjay Dutt (A-117), the
retraction statement was not made at the first available
opportunity. After the recording of his confession, within 10
D days, the accused was released on bail by the High Court, and
the accused remained free for a considerable period of time.
In fact, the judgment delivered by the Constitution Bench on
09.09.1994 also noted down that the said confession of the
accused remained un-retracted. The retractions were made
E many months after the recording of the confession.
40. In State of Maharashtra vs. Bharat Chaganlal
Raghani, (2001) 9 SCC 1, this Court while setting aside the
judgment of acquittal recorded by the Designated TADA Court,
observed as under:
F
"58 ..... There is no denial of the fact that the judicial
confessions made are usually retracted. Retracted
confessions are good confessions if held to have been
made voluntarily and in accordance with the provisions of
G law .... Corroboration of the confessional statement is not
a rule of law but a rule of prudence. Whether in a given
case corroboration is sufficient would depend upon the
facts and circumstances of that case."
41. In Mohd. Amin (supra), this Court considered two
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR.429
CBI, (STi=), BOMBAY [P. SATHASIVAM, J.]
issues, viz., (i) whether the confession of an accused can be A
relied upon or used against the co-accused without
corroboration, and (ii) whether confessional statements can be
relied upon to convict the accused in spite of their subsequent
retraction. It was held that in so lc.t• as the retraction of
confessional statements is concerned, it is clear that the B
allegations of torture, coercions and threats etc. by accused
were not raised at the first available opportunity, and that the
retractions were made after almost a year and were therefore
only an afterthought and a result of the ingenuinty of their
advocates. Accordingly, the retracted confessions were relied c
upon. It was observed:-
"lf the confessions of the appellants are scrutinized in the
light of the above enumerated factors, it becomes clear that
the allegations regarding coercion, threat, torture, etc. after
more than one year of recording of confessions are an D
afterthought and products of ingenuity of their advocates.
The statements made by them under Section 313 of CrPC
were al~o the result of an afterthought because no tangible
reason has been put forward by the defence as to why
Appellants A-4 to A-8 did not retract their confessions E
when they were produced before the Magistrate at
Ahmedabad and thereafter despite the fact that they had
access to legal assistance. in more than one way.
Therefore, we hold that the trial court did not commit any
error by relying upon the confessions of the Appellants A- F
4 to A-8 and A-10 and we do not find any valid ground to
discard the confessions of Appellants A-4 toA-8 and A-
10."
42. In Manjit Singh vs. CBI, (2011) 11 SCC 578, this G
Court, while considering the question whether retracted
confessions of the co-accused could be relied upon to convict
the accused, held that the retracted statements can be used
against the accused as well as the co-accused provided such
statements were truthful and voluntary when made. In the said
H
430 SUPREME COURT REPORTS [2013) 16 S.C.R.
A case, two accused persons made confessional statements and,
subsequently, they retracted from their statements. This Court
observed:
"87. A confessional statement given under Section 15 of
TADA shall not be discarded merely for the reason that
B
the same has been retracted .... "
It is pointed out that the confession in the present case
was truthful and voluntary and has been recorded after
strictly following the law and the prescribed procedure, the
c subsequent retraction and denial of such confessional
statements in the statement of the accused under Section
313 was only as a result of an afterthought.
Corroboration of Confession:
D 43. A contention was raised by learned senior counsel for
the appellant that there was no sufficient corroboration of the
confessional statements made by the accused. In reply to the
above, the prosecution relied upon the following decisions:-
E 44. In Wariyam Singh vs. State of UP., (1995) 6 SCC 458,
this Court relied upon the confession made by an accused for
convicting him. The confession was alleged to have been
fabricated. In para 16 of the judgment, it was held that a part
of the confession stood corroborated by the testimony of a
F witness, and hence there was no reason to believe that the
confession was fabricated. This Court held that the allegation
of the confession being fabricated was witho1,.1t any basis and
th1:1 confession could be taken into account while recording the
conviction.
G 45. In S.N. Dube vs. N.B. Bhoir & Ors., (2000) 2 SCC 254,
this Court in para 34 observed that the confessions of two
accused being substantive evidence are sufficient for
considering them and it also received corroboration from the
confessions of other accused and also general corroboration
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 431
CBI, (STF), BOMBAY [P. SATHASIVAM, J.] ·
as regards the other illegal activities committed by them from A
the evidence of other witnesses. On the basis of these
confessional statements, this Court •eversed the orders of
acquittal passed by the High Court.
46. In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221, B
this Court upheld the conviction of the accused on the basis of
the confessions. It was held that the Nation has been 'facing
great stress and strain because of misguided militants and
cooperation of the militancy' which was affecting the social
security, peace and stabiliij. Since the knowledge of the details
of such terrorist conspiracies remains with the people directly · C
involved in it and it is not easy to prove the involvement of all
the conspirators, hence, the confessional statements are _
reliable pieces of evidence. This Court, in para 84, observed
as under:
D
"84 ...... Hence, in case of conspiracy and particularly such
activities, better evidence than acts and statements
including that of co-conspirators in pursuance of the
conspiracy is hardly available. In such cases, when there
is confessional statement it is not necessary for the E
prosecution to establish each and every link as
confessional statement gets corroboration from the link
which is proved by the prosecution. In any case, the law
requires establishment of such a degree of probability that
a prudent man may on its basis, believe in the exis.tence F
of the facts in issue. For assessing evidence in such
cases, this Court in Collector of Customs v. 0. Bhoormall
dealing with smuggling activities and the penalty
proceedings under Section 167 of the Sea Customs Act,
1878 observed that many facts relating to illicit business G
remain in the special or peculiar knowledge of the person
concerned in it and held thus: (SCC pp. 553-55, paras 30-
32 and 37)
"30 . ... that the prosecution or the Department is not
H
432 SUPREME COURT REPORTS [2013] 16 S.C.R.
A required to prove its case with mathematical precision to
a demonstrable degree; for, in all human affairs absolute
certainty is a myth, and-as Prof. Brett felicitously puts it
- 'all exactness is a fake'. El Dorado of absolute proof
being unattainable, the law accepts for it probability as a
B working substitute in this work-a-day world. The law does
not require the prosecution to prove the impossible. All that
it requires is the establishment of such a degree of
probability that a prudent man may, on its basis, believe
in the existence of the fact in issue. Thus, legal proof is
c not necessarily perfect proof; often it is nothing more than
a prudent man's estimate as to the probabilities of the
case.
31. The other cardinal principle having an important
bearing on the incidence of burden of proof is that
D sufficiency and weight of the evidence is to be considered
- to use the words of Lord Mansfied in Blatch v. Archar
(1774) 1 Cowp 63: 98 ER 969 (Cowp at p. 65) 'according
to the proof which it was in the power of one side to prove,
and in the power of the other to have contradicted'."
c
47. In State of Maharashtra vs. Bharat Chaganlal
Raghani, (2001) 9 sec 1, this Court mainly relied on the
confessional statements of the accused which were also
retracted. It was held that there was sufficient general
F corroboration of the confessional statements made by the
accused. The Court found sufficient corroboration in the
testimony of the witnesses and the recoveries pursuant to the
statements given by the accused. It was also held that once the
confessional statements were found to have been made
G voluntarily, the test identification parade was not significant. It
was further held that corroboration is not a rule of law but a rule
of prudence.
48. In Devender Pal Singh vs. State of NCT of Delhi,
(2002) 5 sec 234, this Court was considering, among other
H things, whether the accused making the confessional statement
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 433
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
can be convicted on the basis of the confession alone without A
any corroboration. It was held that once it is found that the
confessional statement is voluntary, it is not proper to hold that
the police had.incorporated certain aspects in the confessional
statement which were gathered during the. investigation
conducted earlier. It was held that the so-called retraction by B
the appellant, was made long after he was taken into judicial
custody.
49. In Ravinder Singh vs. State of Maharashtra, (2002) 9
sec 55, this Court held that a confession does not require any C
corroboration if. it. relates to the accused himself. It was further
held that there \yas enough evidence to provide general
corroboration to the confessional statement. It was also held
that minor contradictions in the statements of thei accused were
of no consequence once the confessions were held to be.
reliable. 0
. . . I
50. In Jamee/ Ahmed vs. State of Rajasthan, (2003) 9
sec 673, the position of law was summed up by this Court as
follows:
E
"35 ..... .(1) If the confessional statement is properly
recorded, satisfying the mandatory provision of Section 15
of the TADA Act and the Rules made thereunder, and if
the same is found by the court as having been made
voluntarily and truthfully then the said confession is sufficient
F
to base a conviction on the maker of the confession.
(i1) Whether such confession requires corroboration or not, ·
is a matter for the court considering such confession on
facts of each case.
G
(iii) In regard to the use of such confession as against a
co-accused, it has to be held that as a ,matter of caution,
a general corroboration should be sou~ht for but in cases
where the court is satisfied that the probative value of such
confession is such that it does not require corroboration H
434 SUPREME COURT REPORTS [2013) 16 S.C.R.
A then it may base a conviction on the basis of such
confession of the co-accused without corroboration. But
this is an exception to the general rule of requiring
corroboration when such confession is to be used against
a co-accused.
8
(iv) The nature of corroboration required both in regard to
the use of confession against the maker as also in regard
to the use of the same against a co-accused is of a
general nature, unless the court comes to the conclusion
that such corroboration should be on material facts also
c because of the facts of a particular case. The degree of
corroboration so required is that which is necessary for a
prudent man to believe in the existence of facts mentioned
in the confessional statement.
D (v) The requirement of sub-rule (5) of Rule 15 of the TADA
Rules which contemplates a confessional statement being
sent to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate who, in turn, will have to send the same
to the Designated Court is not mandatory and is only
E directory. However, the court considering the case of direct
transmission of the cor:ifessional statement to the
Designated Court should satisfy itself on facts of each case
whether such direct transmission of the confessional
statement in the facts of the case creates any doubt as to
F the genuineness of the said confessional statement."
51. In Nazir Khan vs. State of Delhi, (2003) 8 SCC 461,
this court held thc;it the confessional statements made by the
co-accused can be used to convict a person, and that it is only
as a rule of prudence that the Court should look for
G corroboration elsewhere. It was held that:
"27. Applying the principles which can be culled out from
the principles set out above to the factual scenario, the
inevitable conclusion is that the trial court was justified in
H its conclusions by holding the accused-appellants guilty.
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 435
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
When an accused is a participant in a big game planned, A
he cannot take the advantage of being ignorant about the
· finer details applied to give effect to the conspiracy
hatched, for example, A-7 is stated to be ignorant of the
conspiracy and the kidnapping. But the factual scenario
described by the co-accused in the statements recorded B
under Section 15 of the TADA Act shows his deep
involvement in the meticulous planning done by Umar
Sheikh. He organized all the activities for making
arrangements for the accused and other terrorists.
52. In Sukhwant Singh vs. State, (2003) 8 SCC 90, this C
Court upheld the conviction solely on the basis of the
confession of the co-accused, without any corroboration, that
too in a situation where the accused himself had not confessed.
The judgment in the case of Jameel Ahmed (supra) was relied
upon. It was held: D
"3. In the present case we are aware of the fact that the
appellant has not made any confessional statement nor is
there any corroboration of tlie confessional statement of
the co-accused implicating this appellant from any other E
independent source but then we have held in the above-
reported case that if the confessional statement of a co-
a ccu sed is acceptable to the court even without
corroboration then a confession of a co-accused can be
the basis of conviction of another accused so implicated F
in that confession. Therefore the fact that the appellant
herein has not confessed or the confessional statements
made implicating him by A-1 and A-2 are not
independently corroborated, will not be a ground to reject
the evidence produced by the prosecution in the form of G
confessional statement of cocaccused provided the
confession relied against the appellant is acceptable to the
court."
53. In Mohammed Amin (supra), this Court convicted the
H
436 SUPREME COURT REPORTS [2013] 16 S.C.R.
A accused on the basis of their confessions and confes$ional
statements of co-accused. It was held that there is no
requirement of corroboration if the confessions are proved to
be made voluntarily, and the Rules applicable have been
complied with. The following observations are pertinent:
B
"31. The ratio of the abovenoted judgments is that if a
person accused of an offence under the Act makes a
confession before a police officer not below the rank of
Superintendent of Police and the same is recorded by the
officer concerned in writing or on any mechanical device
c like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, then such
confession is admissible in the trial of the maker as also
the co-accused, abettor or conspirator not only for an
offence under the Act but also for offence(s) under other ·
D enactments, provided that the co-accused, abettor or
conspirator is charged and tried in the same case along
with the accused and the court is satisfied that
requirements of the Act and the Rules have been complied
with. Whether such confession requires corroboration
E depends on the facts of the given case .. If the court is
convinced that the probative value of the confession is such
that it does not require corroboration then the same can
be used for convicting the maker and/or the co-accused
unaer the Act and/or the other enactments without
F independent corroboration."
54. In Mohd. Ayub Dar vs. State of Jammu and Kashmir,
(2010)'9 sec 312, it was held that even though the guidelines
in Kartar Singh (supra), have not been strictly followed, the
G confession of the accused recorded is admissible against him
and can be relied upon solely to convict him. The following
observations of this Court are pertinent:
"59. It would, therefore, be clear, as rightly contended by
Shri Rawal that merely because the guidelines in Kartar
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 437
CBI, (STF}, BOMBAY [P. SATHASIVAM, J.]
Singh v. State of Punjab were not fully followed, that by A
itself does not wipe out the confession recorded. We have
already given our reasons for holding that the confession
was recorded by A.K. Suri (PW 2) taking full care and
cautions which were required to be observed while
recording the confession. B
60. In Ravinder Singh v. State of Maharashtra it has been
observed in para 19 that if the confession made by the
accused is voluntary and truthful and relates to the accused
himself, then no further corroboration ·is necessary and a C
conviction of the accused can be solely based on it. It has
also been observed that such confessional statement is
admissible as a substantive piece of evidence. It was
further observed that the said confession need not be
tested for the contradictions to be found in the confession
of the co-accused. It is for that reason that even if the other D
oral evidence goes counter to the statements made in the
confessipn, one's confession can be found to be voluntary
and reliable and it can become the basis of the conviction.
61. In this case, there is ample corroboration to the E
confession in the oral evidence as well as the documentary
evidence in shape of a chit, which is referred to in the said
confession. There is a clear reference that the Personal
Assistant, who was a non-Kashmiri and kept a beard, had
sent a slip inside. Ultimately, that slip was found by the F
police, which corroborates the contents in the confession.
In our opinion, that is a sufficient corroboration to the
confession.
64. All these cases suggest that the only test which the court
has to apply is whether the confession was voluntary and G
free of coercion, threat or inducement and whether
sufficient caution is taken by the police officer who
recorded the confession. Once the confession passes that
test, it can become the basis of the conviction. We are
completely convinced that the confession in this case was H
438 SUPREME COURT REPORTS [2013) 16 S.C.R.
A free from all the aforementioned defects and was
voluntary."
55. In Manjit Singh vs. CB/, (2011) 11 SCC 578, the
following observations of this Court regarding the admissibility
of confessional statements are pertinent:-
8
91. In Ravinder Singh case, the Court relying on State v.
Nalini, S.N. Dube v. N.B. Bhoir and Devender Pal Singh
v. State (NCT of Delhi), held that: (Ravinder Singh case,
sec p. 59, para 17)
c
"17. It is thus well established that a voluntary and truthful
confessional statement recorded under Section 15 of the
TADA Act requires no corroboration."
This apposite observation by the Bench of two learned
D Judges in Ravinder Singh case (supra) should be considered
with measured caution and we believe, taking into account the
ground realities that it would be prudent to examine the
authenticity of a confession on a case-by-case basis.
E 56. The corroboration as required in the abovesaid
judgment can also be found in the case at hand, both in the
nature of substantive evidence in the form of the confessions
of the co-accused, as well as in the oral testimony of witnesses,
including the eye witnesses to the incident who have identified
F the appellant-Sanjay Dutt (A-117), as well as the co-accused
persons, viz., A-41 and A-53.
57. Apart from the evidence contemporaneous to the arrest
of the abovesaid three accused and the recovery made from
A-124 and subsequent recovery at the instance of A-124 from
G A-120, are also relevant in respect of all the three abovenamed
appellants.
58. It is clear that the sequence of events after the arrest
of Sanjay Dutt till the recovery of pistol from A-120, forms part
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 439
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
of an unbroken chain inseparably connected to each other. No A
foul play can be assumed in view of the fact that the events
happened in quick succession one after the other, lending
credibility and truthfulness to the whole episqde. The role and
the part played by A-118 and A-124 is also clear from the
evidence relied upon by the prosecution in respect of A-117, B
which corroborates with each other in material particulars and
is thus a substantive piece of evidence.
Deposition of Prosecution Witnesses:
59. Apart from the aforesaid evidence, the involvement and C
the role· of the appellant in the conspiracy as stated above is
disclosed by the deposition of various prosecution witnesses
which are as follows:
Deposition of Shri K.L. Bishnoi (PW-193) D
PW-193, the then DCP, deposed as under with regard to
the confession made by A-117:-
. (i) On 26.04.1993, at about 3:15 p.m., A-117 was
produced by AP.I. Shri Sanjay Kadam before him · E
in the room given by Senior P.I. Shri Kumbhar, in
the office of DCB, CID, Crime Branch, for recording
of his confession and he took the proceedings by
as.king A-117 certain questions in English and
during the same, amongst other replies given by F
him, he told him that he wanted to make a
statement.
(ii) During the said proceedings, amongst other, he had
explained to A-117, that he was not bound to make
a confession and the same can be used against G ·
him in evidence and when A-117 still intended to
give the confession, PW-193 gave him 48 hours
time to reconsider his decision.
(iii) Exhibit 868 being the true and correct record of the H
440 SUPREME COURT REPORTS [2013) 16 S.C.R.
A said proceedings made by him with the help of a
typist in his presence which was read over to A-117
and confirmed by him as of being correctly
recorded, and bearing the signatures of A-117 as
well as of PW-193.
B
(iv) On 28.04.1993, at about 16:00 hours, A-117 was
again produced before P.W. 193 in the chamber
of Senior P.I. DCB.CID, in the office of Crime
Branch, C.P. office by AP.I. Shri S.A. Khere for
further proceedings, and he followed all the
c procedures mentioned above and recorded the
same which is Exh. 868-A.
(v) PW-193 deposed that A-117 confessed that he
already had three licensed firearms.
D
(vi) He developed acquaintance with Anees Ibrahim-
brother of Dawood Ibrahim during a film-shooting
(vii) He expressed his desire to have an automatic fire-
arm to Samir Hingora (A-53) and Hanif Kandawala
E (A-40).
(viii) Sanjay Dutt was already acquainted with Salem and
he had assured him of delivery of the weapons.
(ix) With the help of above named persons, 3 AK-56
F
Rifles and 250 rounds were delivered to A-117.
(x) After 2 days, he returned 2 AK-56 rifles and
ammunitions, and retained 1 AK-56 and some
ammunition.
G
(xi) A-117 kept the same in a handbag and placed it
in the private hall on the 2nd floor of his bungalow.
(xii) On hearing the news of the arrest of co-accused
persons, viz., Samir Hingora (A-53) and Hanif
H
•
SANJAY oun (A-117) v. STATE OF MAHARASHTRA, THR. 441
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Kandawala (A-40), A-117 contacted Yusuf Nulwalla A
over telephone and asked him that something is
lying in a black coloured bag kept in the hall on the
second floor of his house, and it should be taken
away immediately and to destroy the objects
completely. B
(xiii) He was picked up by the police as soon as he
landed at Bombay.
Deposition of PW-193 with regard to the confession made
byA-118:- C
(i) A-118 is an old and well known friend of Sanjay
Dutt (A-117).
(ii) In the month of April, when Sanjay Dutt was in D
Mauritius, A-118 was asked to destroy certain
objects kept at his residence.
(iii) On reaching there, he discovered one AK-56 rifle, .
two empty magazines, approximately 250 rounds
of AK-56, one pistol and one loaded magazine. E
(iv) A-118 cutted the rifle into pieces with the help of a
hexa-cutting machine.
(v) A-118 took all those things to Kersi Adajania (A-
124), who was having a gas-cutter, in order to melt F
the same.
(vi) A-118 caused disappearance of evidence of an
offence which were also unauthorisedly possessed
automatic firearms/weapons. G
(vii) Next day, he informed A-117 about the ·completion
of the work assigned to him.
Deposition of PW-193 with regard to the confession made
by A-124:- H
442 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (i) A-124 was very well acquainted with A-117 and A-
118.
(ii) A-124 had his workshop in his house where he kept
all his tools including the gas cutter.
B (iii) A-118 contacted A-124 and said that he wanted to
destroy AK-56 and a pistol belonging to Sanjay
Dutt (A-117).
(iv) A-124 permitted him to do so.
c (v) A-124 personally destroyed AK-56.
(vi) A-124 kept with himself the pistol.
Deposition of·Pandharinath H. Shinde (PW-218)
D
The deposition reveals as under:
(i) On 11.01.1993, he was posted on guard duty at the
bunglow of Sun!I Dutt at Pali Hill, Khar, Bombay.
E (ii) He had worked as a Protection Guard at the said
bunglow from 11.01.1993 to 19.01.1993. He was
on duty during that period for 24 hours.
(iii) On the said day, at about 7:30 a.m., one white
maruti van came to gate No. 2 of the said bung low
F arid three persons were sitting in the said van.
(iv) He identified Ibrahim Musa Chauhan (A-41) and
Samir Hingora (A-53) as the persons who were
sitting at the back of the said van.
G
Deposition of Manohar Vasudev Shirodkar (PW-219)
At the relevant time, PW-219 was Senior Inspector of
Police at Khar Police Station, Bombay. His deposition
establishes that PW-218 was posted on Protection Duty at the
H bunglow of Sunil Dutt.
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 443
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Deposition of Suresh S. Walishetty (PW..680) A
PW-680, the Investigating officer revealed as under:-
(i) He deposed that Sanjay Dutt (A-117) expressed ·
his desire to make a voluntary statement. Thereafter,
he instructed his staff to make arrangement of two B
persons to act as panch witnesses. The said
persons were Shri Tavade and Shri Sawant (PW
211).
(ii) PW-680 instructed Shri Rajaram Ramchandra c
Joshi (PW~475), Assistant Inspector of Police to
record the panchnama.
(iii) Sanjay Dutt made a voluntary statement in Hindi
Language, which was recorded in the
memorandum Panchnama Exhibit 1068 by PW- D
475.
(iv) As per the said disclosure, Sanjay Dutt led the
Police party to the House of Yusuf Nulwala (A-118).
E
(v) Yusuf Nulwala was produced by the officers of
Doogri police station after about half an hour after
their return to the office of DCB-CID.
(vi) Yusuf Nulwala made a disclosure statement and led
the police party to the house of Kersi Adajania (A- F
124).
(vii) Kersi Adajania made a disclosure statement and
produced a spring and a rod which was seized by
the police and also led the Police party to A-125. G
(viii) A-125 made a disclosure statement and led the
police party to the House of A-120 wherefrom a
pistol and its rounds were recovered.
H
444 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Deposition of Rajaram Ramchandra Joshi (PW-475)
At the relevant time, PW-475 was working as the Assistant
Inspector of Police. In his deposition, he corroborates with the
deposition of PW-680 that he assisted him in the investigation
relating to Sanjay Dutt and others.
8
Deposition of Shashikant Raja ram Sawant (PW-211)
PW-211 acted as an independent witness and proved the
disclosure statements made by the appellants pointing out the
c recoveries therefrom. The deposition reveals as under:
(i) At about 3:00 p.m., he alongwith Tawade was
asked by 3-4 havaldars to act as panch witnesses
to which they agreed.
D (ii) They were taken to the office of the Crime Branch
at Crawford Market.
(iii) He saw Sanjay Dutt present fn the said police
station.
E (iv) He was asked to hear what Sanjay Dutt had to say.
(v) He refers to the disclosure made by Sanjay Dutt to
the police.
F (vi) Panchnama was drawn by Joshi Saheb (PW-475).
(vii) Sanjay Dutt led the police party to the house of
Yusuf Nulwalla (A-118).
(viii) He proved the Panchnama Exhibit 1068-A.
G
(ix) Yusuf Nulwala was produced by the two constables
who was then arrested by Wallishetty (PW-680).
(x) The witness proved the statement made by Yusuf
Nulwala to the Police.
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 445
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
. (xi) Yusuf Nulwala lead the police party to the hQuse of A
A-124 who was then arrested by the Police.
(xii) Kersi made a disclosure statement.
(xiii) The witness proved the Panchnama Exhibit 1068-
C. B
(xiv) He also identified the articles, viz., the Rod and the
spring produced by A-124.
(xv) Kersi led the police party to Rusi Mulla (A-125). c
(xvi) Rusi Mulla led the Police party to Ajay Marwah (A-
120).
(xvii) Ajay Marwah produced the bag containing a pistol
• loaded with Magazine. D
(xix) The witness also proved the panchnama Exh.
1068-E.
Deposition of Gangaram Bajoji (PW-265)
E
PW-265 acted as an independent witness and proved
Exhibit Nos. 1100, 11 OOA, 1101 and 1101 A. In his deposition,
he reveals as under:-
(i) ' · The witness was approached on 1.5.1993 by Police
Havaldars to act as Panch witnesses to which he F.
agreed. He went to the Crime Branc-CID, Crawford
market.
(ii) He met PW 680 and PW 475 there.
G
(iii) Kersi Adajenia made a statement.
(iv) Pursuant to the said statement, Kersi Adajenia
produced, Gas Cylinder, Gas Cutter, from his
workplace-Factory.
H
446 SUPREME COURT REPORTS [2013) 16 S.C.R.
A (v) Police seized those articles vide seizure memo
Exhibit 11 OOA.
(vi) Upon his return to the Police station, Yusuf Nulwala
made a statement before him, PW 680 and PW
475.
B
(vii) A panchnama was drawn as Exhibit 1101.
(viii) The said accused led the Police party to marine
drive and asked the jeep to be halted in front of
c Shanti Niketan building.
(ix) The accused then took the police party to the stoney
area and took out a plastic bag concealed in the
gap of one of the stones. He handed over the same
to PW 680. The said bag was found to be
D containing 53 bullets and he also proved Exhibit
1101A.
Deposition of Karmegam Alagappan (PW-472)
E The deposition of PW 472 reveals as under:
(i) T)le call records of Telephone No. 6462786 were
provided by him.
(ii) Out of 7-8 numbers provided by the Investigating
F officer, only 6462786 has STD and ISO calls.
(iii X 572 contains the printout of call records provided
by him.
(iv) After the objections were decided, the said call
G records were marked as Exhibit 2532 collectively.
60. The entire sequence of abovesaid events have been
proved Shri Suresh S. Walishetty (PW-680)-the Investigating
Officer and Sh. Rajaram Ramchandra Joshi (PW-475)-the
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 447
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Assistant Inspector of Police. The above said incident has also A
been witnessed and proved by an independent witness, viz.
PW-211. Further, the credibility of the witness has not been
shaken despite vigorous cross examination.
Section 27 of the- Indian Evidence Act:
B
61. This Court, while dealing with the law relating to Section
27 of the Indian Evidence Act observed about the possibility
and plausibility of such recoveries as followed in State (NCT
of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600 which are
as under:- c
"142. There is one more point which we would like to
. discuss i.e. whether pointing out a material object by the
accused furnishing the information is a necessary
concomitant of Section 27. We think that the answer should
0
be in the negative. Though in most of the cases the person
who makes the disclosure himself leads the police officer ·
to the place where an object is concealed and points out
the same to him, however, it is not essential that there
should be such pointing out in order to make the
information admissible under Section 27. It could very well
E
be that on the basis of information furnished by the
accused, the investigating officer may go to the spot in the
company of other witnesses and recover the material
object. By doing so, the investigating officer will be
discovering a fact viz. the concealment of an incriminating F
article and the knowledge of the accused furnishing the
information about it. In other words, where the information
furnished by the person in custody is verified by the police
officer by going to the spot mentioned by the informant and
finds it to be correct, that amounts to discovery of fact within G
the meaning of Section 27. Of course, it is subject to the
rider that the information so furnished was the immediate
and proximate cause of discovery. If the police officer
chooses not to take the informant accused to the spot, it
H
448 SUPREME COURT REPORTS [2013] 16 S.C.R.
A will have no bearing on the point of admissibility under
Section 27, though it may be one of the aspects that goes
into evaluation of that particular piece of evidence.
145. Before parting with the discussion on the subject of
confessions under Section 27, we may briefly refer to the
B legal position as regards joint disclosures. This point
assumes relevance in the context of such disclosures
made by the first two accused viz. Afzal and Shaukat. The
admissibility of information said to have been furnished by
both of them leading to the discovery of the hideouts of the
c deceased terrorists and the recovery of a laptop computer,
a mobile phone and cash of Rs 10 lakhs from the truck in
which they were found at Srinagar is in issue. Learned
Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar
appearing for the accused contend, as was contended
D before the High Court, that the disclosure and pointing out
attributed to both cannot fall within the ken of Section 27,
whereas it is the contention of Mr Gopal Subramanium that
there is no taboo against the admission of such
information as incriminating evidence against both the
E accused informants. Some of the High Courts have taken
the view that the wording "a person" excludes the
applicability of the section to more than one person. But,
that is too narrow a view to be taken. Joint disclosures, to
be more accurate, simultaneous disclosures, per se, are
F not inadmissible under Section 27. "A person accused"
need not necessarily be a single person, but it could be
plurality of the accused. It seems to us that the real reason
for not acting upon the joint disclosures by taking resort to
Section 27 is the inherent difficulty in placing reliance on
such information supposed to have emerged from the
G
mouths of two or more accused at a time. In fact, joint or
simultaneous disclosure is a myth, because two or more
accused persons would not have uttered informatory words
in a chorus. At best, one person would have made the
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 449
CBI, (STF), BOMBAY [P. SATHASIVAM, J.] )
statement orally and the other person would have stated A
so substantially in similar terms a few seconds or minutes
later, or the second person would have given unequivocal
nod to what has been said by the first person. Or, two
persons in custody may be interrogated separately and
simultaneously and both of them may furnish similar B
information leading to the discovery of fact. Or, in rare
cases, both the accused may reduce the information into
writing and hand over the written notes to the police officer
at the same time. We do not think that such disclosures
by two or more persons in police custody go out of the c
purview of Section 27 altogether. If information is given one
after the other without any break, almost simultaneously,
and if such information is followed up by pointing out the
material thing by both of them, we find no good reason to
eschew such evidence from the regi~e of Section 27.
0
However, there may be practical difficulties in placing
reliance on such evidence. It may be difficult for the witness
(generally the police officer), to depose which accused
spoke what words and in what sequence. In other words,
the deposition in regard to the information given by the two E
accused may be exposed to criticism from the standpoint
of credibility and its nexus with discovery. Admissibility and
credibility are two distinct aspects, as pointed out by Mr
Gopal Subramanium. Whether and to what extent such a
simultaneous disclosure could be relied upon by the Court
is really a matter of evaluation of evidence ...... " F
It was contended that under Section 27 of the Evidence
Act, only recovery of object is permissible and identification of
the person instead of the place where the article is to be found
cannot attract the provisions of Section 27. G
62. The very same situation has been considered by this
·Court in Jaffar Hussain Dastagir vs. State of Maharashtra,
(1969) 2 sec 872, 875 wherein the following observations are
pertinent:-
.. H
450 SUPREME COURT REPORTS [2013] 16 S.C.R.
A "4 ..... ln order that the section may apply the prosecution
must establish that the information given by the appellant
led to the discovery of some fact deposed to by him. It is
evident that the discovery must be of some fact which the
police had not previously learnt from other sources and that
B the knowledge of the fact was first derived from information
given by the accused. If the police had no information
before of the complicity of Accused 3 with the crime and
had no idea as to whether the diamonds would be found
with him and the appellant had made a statement to the
c police that he knew where the diamonds were and wou,ld
lead them to the person who had them, it can be said that
the discovery of the diamonds with the third accused was
.
a fact deposed to by the appellant and admissible in
evidence under Section 27. However, if it be shown that
D the police already knew .that Accused 3 had got the
diamonds but did not know where the said accused was
to be found, it cannot be said that the information given
by the appellant that Accused 3 had the diamonds and
could be pointed out in a large crowd at the waiting hall
E led to the discovery of a fact proving his complicity with
any crime within the meaning of Section 27. The fact
deposed to by him would at best lead to the discovery of
the whereabouts of Accused 3.
5. Under Section 25 of the Evidence Act no confession
F made by an accused to a police officer can be admitted
in evidence against him. An exception to this is however
provided by Section 26 which makes a confessional
statement made before a Magistrate admissible in
evidence against an accused notwithstanding the fact that
G he was in the custody of the police when he made the
incriminating statement. Section 27 is a proviso to Section
26 and makes admissible so much of the statement of the
accused which leads to the discovery of a fact deposed
to by him and connected with the crime, irrespective of the
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, "fHR. 451
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
question whether it is confessional or otherwise. The A
essential ingredient of the section is that the information
. given by the accused mustlead to the discovery of the fact .
which is the direct outcome of such information. Secondly,.·
only such portion of the information given as is distinctly
connected with the said recovery is admissible against the 8
accused. Thirdly, the discovery of the fact must relate to
the commission of some offence. The embargo on
statements of the accused before the police will not apply
if all the above conditions are fulfilled. If an accused
charged with a theft of articles or receiving stolen articles, C
within the meaning of Section 411 IPC states to the police,
"I will show you the articles at the place where I have kept
them" and the articles are actually found there, there can
be no doubt that the information. given by him led to the
discovery of a fact i.e. keeping of the articles by the
accused at the place mentioned. The discovery of the fact D
deposed to in such a case is not the· discovery of the
articles but the discovery of the fact that the articles were
kept by the accused at a particular place. In principle there
is no difference between the above statement and that
made by the appellant in this case which in effect is that "I E
will show you the person to whom I have given the
diamonds exceeding 200 in number". The only difference
between the two statements is that a "named person" is
substituted for "the place" where the article is kept. In . 1
neither case are the articles or the diamonds the fact F '
discovered."
Recoveries:
63 ..The rod and the spring recovered from the possession
of A-124 were sent to FSL for examination. The experts opined G
that the said articles correspond to that of an AK-56 type rifle,
but did not correspond to similar components used in AK-47
rifle.
H
452 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 64. The independent witness was given a tape to measure
the rod, and the measurement came to be 15 inches which is
not one and a half feet, as was recorded and deposed to by
the prosecution witness. A contention was also raised with
regard to the removal of the seal from the packet. The
8 requisition and the report show that the seal on the packet
containing the object was perfect and had not been tempered
with. In that event, the said anomaly may not be of much
consequEmce.
65. The prosecution has also established through one
C independent witness PW-265 that A-118 and A-124 further
made statement to the police and pursuant whereof the gas
cylinder used in destroying AK-56 was recovered at the
instance of A-124 and some of the ammunition of AK-56 were
recovered at the instance of A-118.
D
66. The relevant confession of A-53, wherein he stated that
when they reached the house of Sanjay Dutt, he was speaking
to Anees over phone, the said call details along with a certified
copy of the relevant directory which contains the telephone
E number of Anees Ibrahim in Dubai has been filed. The call
record was pertaining to Tel. No. 6462786. Exh. No. X-572
shows that the said number belongs to Sanjay Dutt. The United
Arab Emirates' Telephone Directory which is also exhibited
indicates the number as 448585 in the name of Anees Shaikh
F Ibrahim.
67. It was contended on behalf of Sanjay Dutt that smce
he has been acquitted of all the charges, the confession ought
not to have been relied upon for convicting him for offences
other than TADA offences. The answer to the said contention
G lies in reading together the two judgments of the Constitution
Bench of this Court. One js in the case of Sanjay Dutt (II)
(supra) wherein this Court considered the entire case of the
appellant-Sanjay Dutt at that stage and opined that although the
offence is complete by the unauthorized possession of a
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 453
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
weapon in the notified area, a defence would be available to A
the accused to be taken at the time of the trial and the Trial
Court can consider the same by virtue of Section 12 of TADA.
The other case is of Prakash Kumar (supra), wherein this
Court held that even if the accused was to be acquitted of the
TADA charges, still in a joint trial, the confessions recorded 8
under Section 15 of TADA can be relied upon in respect of the
said accused. It was further held that the stage at which the trial
can be separated is at the stage of cognizance and not
subsequently.
68. The following observation of this Court in the
c
abovesaid judgment is as under:-
In Sanjay Dutt (Supra), this Court held:-
"27. There is no controversy about the facts necessary D
to constitute the first two ingredients. For proving the non-
existence of facts constituting the third ingredient of the
offence, the accused would be entitled to rebut the above
statutory presumption. and prove that his unauthorised
possession bf any such arms and ammunition etc. was E
wholly unrelated to any terrorist or disruptive activity and
the same was neither used nor available in that area for
any such use and its availability in a "notified area" was
innocuous. Whatever be the extent of burden on the
accused to prove the non-existence of the third ingredient,
F
as a matter of law he has such a right which flows from
the basic right of the ·accused in every prosecution to prove
th~ .non-existence of a fact essential tp constitute an
ingredient of the offence for which he is being tried. If the
accused succeeds in proving non-existence of the facts
necessary to consJitute the third ingredient alone after his G
unauthorised possession of any such arms and
ammunition etc. in a notified area is proved by the
prosecution, then he cannot be convicted under Section 5
of the TADA Act and would be dealt with and punished
H
454 SUPREME COURT REPORTS (2013] 16 S.C.R.
A under the general law. It is obviously to meet situations of
this kind that Section 12 was incorporated in the TADA
Act.
28. The non-obstante clause in Section 5 of the TADA Act
shows that within a notified area, the general law relating
B
to unauthorised possession of any of the specified arms
and ammunition etc. is superseded by the special
enactment for that area, namely, the TADA Act. If however
the third ingredient to constitute the offence under Section
5 of the TADA Act is negatived by the accused while the
c first two ingredients are proved to make out an offence
punishable under the general law, namely, the Arms Act,
then the Designated Court is empowered to deal with the
situation in accordance with Section 12 of the TADA Act.
Sec:tion 12 itself shows that Parliament envisaged a
D situation in which a person tried under the TADA Act of
any offence may ultimately be found to have committed any
other offence punishable under any other law and in that
situation, the Designated Court is empowered to punish
the accused for the offence under such other law. The
E offence under Section 5 of the TADA Act is graver and
visited with more severe punishment as compared to the
corresponding offence under the general law. This is
because of the greater propensity of misuse of such arms
and ammunition etc. for a terrorist or disruptive act within
F a notified area. If the assumed propensity of such use is
negatived by the accused, the offence gets reduced to one
under the general law and is punishable only thereunder.
In such a situation, the accused is punished in the same
manner as any other person found to be in unauthorised
G possession of any such arms and ammunition etc. outside
a notified area. The presumption in law is of the greater
and natural danger arising from its unauthorised
possession within a notified area more prone to terrorist
or disruptive activities.
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 455
CBI, (STF), BOMBAY [P. SATHASIVAM, J.] .
37. It is a settled rule of criminal jurisprudence that the A
burden on an accused of proving a fact for rebutting a
statutory presumption in his defence is not as heavy as on
the prosecution to prove its case beyond reasonable doubt
but the lighter burden of proving the greater probability. ·
Thus, the burden on the accused of rebutting the statutory B
presumption which arises against him under Section 5 of
the TADA Act on proof by the prosecution that the accused
was in unauthorised possession of any of the specified
arms and ammunition etc .. within a notified area, is of
greater probability. When the prosecution has proved c
these facts, it has to do nothing more and conviction under
Section 5 of the TADA Act must follow unless the accused
rebuts the statutory presumption by proving that any such·
arms and ammunition etc. was neither used nor was meant
to be used for a terrorist or disruptive activity. No further 0
nexus of his unauthorised possession of the same with any
specific terrorist or disruptive activity is required to be
proved by the prosecution for proving the offence under
Section 5 of the TADA Act. The nexus is implicit, unless
rebutted, from the fact. of unauthorised conscious
E
possession of any such weapon etc. within a notified area
and the inherent lethal and hazardous nature and potential
of the same. The observations of Sahai, J. alone in Kartar
Singh1 cannot be read to enlarge the burden on the
prosecution to prove the implicit nexus by evidence
aliunde, or to require the prosecution to prove anything F
more than what we have indicated."
69. Similary, in Prakash Kumar (supra), this Court held
as under:-
G
"18. The questions posed before us for the termination are
no more res integra. In our view, the "Same have been set
at rest by the three-Judge Bench decision rendered in
Nalini. The rigours of Sections 12 and 15 were considered
in Nalini easel and a finding rendered in paras 80, 81 and·
82 (SCC p. 304) as under: H
456 SUPREME COURT REPORTS [2013] 16 S.C.R.
A "80. Section 12 of TADA enables the Designated Court
to jointly try, at the same trial, any offence under TADA
together with any other offence 'with which the accused
may be charged' as per the Code of Criminal Procedure.
Sub-section (2) thereof empowers the Designated Court
B to convict the accused, in such a trial, of any offence 'under
any other law' if it is found by such Designated Court in
such trial that the accused is found guilty of such offence.
If the accused is acquitted of the offences under TADA
in such a trial, but convicted of the offence under any
c other law, it does not mean that there was only a trial for
such other offence under any other law.
81. Section 15 of TADA enables the confessional
statement of an accused made to a police officer specified
therein to become admissible 'in the trial of such a
D person'. It means, if there was a trial of any offence under
TADA together with any other offence under any other law,
the admissibility of the confessional statement would
continue to hold good even if the accused is acquitted
under TADA offences.
E
82. The aforesaid implications of Section 12 vis-a-vis
Section 15 of TADA have not been adverted to in Bilal
Ahmed cas~. Hence the observations therein (at SCC p.
434, para 5) that
F 'while dealing with the offences of which the appellant was
convicted there is no question of looking into the
confessional statement attributed to him, much less relying
on it since he was acquitted of all offences under TADA'
G cannot be followed by us. The correct position is that the
confessional statement duly recorded under Section 15
of TADA would continue to remain admissible as for the
other offences under any other law which too were tried
along with TADA offences, no matter that the accused
H was acquitted of offences under TADA in that trial."
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR 457
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(emphasis supplied) A
We are in respectful agreement with the findings recorded
by a three-Judge Bench in Nalini case.
33. Section 12 empowers the Designated Court to try any
other offence with which the accused may be charged B
under the Code at the same trial provided the offence is
connected with such other offence. This section has been
brought to the statute-book in consonance with the
preamble of the Act, which says "for the prevention of, and
for coping with, terrorist and disruptive activities and for C
matters connected therewith or incidental thereto".
(emphasis supplied) Therefore, Section 12 is introduced
to take care of the matters connected with or incidental to
terrorist activities.
D
34. A conjoint reading of the two sections as a whole ·
leaves no manner of doubt that one provision is to be
construed with reference to the other provision and vice
versa so as to make the provision consistent with the object
sought to be achieved. The scheme and object of the Act E
being the admissibility of the confession recorded under
Section 15 of the Act in the trial of a person or co-accused,
abettor or conspirator charged and tried in the same case
together with the accused, as provided under Section 12
'of the Act.
F
35. Counsel contends that Section 12 is only an enabling
provision empowering the Designated Court to try and
convict for the offences committed under any other law
along with the offences under TADA so as to avoid
multiplicity of the trial and does not empower the G
Designated Court to try and convict for other offences,
even if the offences under TADA are not made out. Does
it mean: "Thou shalt have teeth, but not bite?" We think not.
When the courts have the power to try, it is implicit in it that
H
458 SUPREME COURT REPORTS [2013] 16 S.C.R.
A they have the power to convict also. In the present case,
sub-section (2) of Section 12 expressly empowered the
Designated Court to convict the accused person of such
other offence and pass any sentence authorised by the Act
- if the offence is connected with such other offence and
B -- if it is found that the accused person has committed any
other offence.
36. Section 12(1) as quoted above authorises the
Designated Court to try offences under TADA along with
another offence with which the accused may be charged
c under CrPC at the same trial. The only embargo imposed
on the exercise of the power is that the offence under
TADA is connected with any other offence being tried
together. Further, Section 12(2) provides that the
Designated Court may convict the accused person of
D offence under that Act or any rule made thereunder or
· under any other law and pass any sentence authorised
under that Act or the Rules or under any other law, as the
case may be for the punishment thereof, if in the course
of any trial under TADA the accused persons are found
.E
to have committed any offence either under that Act or
any rule or under any other Jaw.
37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
F Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The lang~age "if the offence is connected with such other
offence" employed in Section 12(1) of the Act has great
significance. The necessary cor.ollary is that once the other
G
offence is connected with the offence under TADA and if
the accused is charged under the Code and tried together
in the _same trial, the Designated Court is empowered to
convict the accused for the offence under any other law,
notwithstanding the fact that no offence under TADA is
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 459
CBI, (STF), BOMBAY [P. SATHASIVAM, J.] .
made out. This could be the only intendment of tre A
legislature. To hold otherwise, would amount to rewrite or
recast legislation and read something into it which is not
there.
41. The other leg· of the submission is rigours of Section
8
18 of the Act. Section 18 deals with the power to transfer
cases to regular courts. It reads:
"18. Where, after taking cognizance of any offence, a
Designated Court is of opinion that the offence is not
triable by it, it shall, notwithstanding that it has no C
jurisdiction to try such offence, transfer the case for the trial
of such offence to any ·court having jurisdiction under the
Code and the court to which the case is transferred may
proceed with the trial of the offence as if it had taken
cognizance of the offence." D·
(emphasis supplied)
42. It is contended that the words "after taking cognizance"
employed in Section 18 of the Act would include any stage
of trial including the stage when the judgment is to be E
delivered. This submission is also misconceived. If it ought
to have been the intention of the legislature they could have
said so. The legislature deliberately uses the words "after
taking cognizance of any offence" to mean that Section 18
would be attracted only at the stage where the Designated F
Court takes cognizance of offence i.. e. after the
investigation is complete and charge-sheet is filed. The
provisions of Section 209 CrPC on which the counsel for
the appellants sought to rely are not in pari materia with
Section 18. In Section 209 CrPC the words "after taking G
cognizance" are absent conspicuously. Section 18 is a
filtered provision. The section is attracted only at a stage
the Designated Court takes cognizance of the offence. It
is at the stage of taking cognizance, the Designated Court
H
460 SUPREME COURT REPORTS [2013] 16 S.C.R.
A is expected to scan the documents and evidence collected
therewith. If the Designated Court is of the opinion that the
offence is not triable by it, it shall then, notwithstanding that
it has no jurisdiction to try such offence, transfer the case
for the trial of such offence to any court having jurisdiction
B under the Code and the court to which the case is
transferred may proceed with the trial of the offence as if
it had taken cognizance of the offence. In our view, there
is no ambiguity in the language used in Section 18. If the
submissions of the counsel for the appellant are accepted,
c it would amount to reading something into the statute which
is not there."
70. In the case on hand, at the time of taking cognizance
by the Designated Court, there were sufficient evidence against
the appellants to proceed against them in the joint trial. In the
D case of Sanjay Dutt, the Designated Court took a view on the
basis of his own confession that the weapons were not
acquired for any terrorist activity but they were acquired for self-
defence, therefore, acquittal was recorded in respect of charge
under Section 5 of TADA. We fully agree with the same.
E
71. For the same reasons discussed above, we are in
agreement with the conclusion arrived at by the Designated
Court and reject the arguments of the counsel for the other
appellants, viz., A-118 and A-124. In the light of the above
F discussion, we are of the view that the course adopted by the
trial Court was correct in view of both the abovesaid judgrT)ents
of this Court.
~entence:
G 72. Coming to sentence, A-117 has filed an additional
affidavit dated 24.07.2012 highlighting the circumstances under
which he was implicated, relationship of his family members
with the victims etc. It is not in dispute that though the appellant
was also charged under TADA Act, the fact remains that he
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 461
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
was acquitted of those charges and admittedly the CBI has not A
filed an appeal against the same. As said earlier, the
Designated Court convicted him for the offences under Sections
3 and 7 read with Sections 25(1-A) and (1-B)(a) of the Arms
Act, 1959. Consequently, in his additional affidavit, ttie
appellant has asserted that he is entitled to seek the benefit of B
Section 4 of Probation of Offenders Act.
73. The appellant (A-117) asserted that though the
prosecution involved him in Bombay Bomb Blast Case that he
had knowledge as to the conspiracy and had kept in his C
possession fire arms and ammunitions as well as hand
grenades knowing that the same were from the consignment
that had landed for use in the said Blasts, the fact rem~ins that
the Designated Court did not accept the prosecution story
against him and rejected his involvementin the conspiracy as
well as any knowledge of the events as charged. The TADA D
Court has also held that the prosecution has failed to prove that
the alleged arms in possession of the appellant were from the
same alleged consignment that was used in the said blasts.
74. It was also contended from the side of the appellant E
that in the year 1992-93, the appellant and his family members
were involved in helping people residing in riots affected areas,
more particularly, Behrampada, predominantly having a Muslim
population which was objectionable to certain group of persons
who were of the opinion that the Dut~ family was sympathizers F
of only the Muslim community. In fact, this leads to an attack
on Sunil Dutt in January, 1993 as well as threatening phone calls
were being received at their residence, including threats to the
family members being killed as well as the sisters of the
appellant being kidnapped and raped. This lead to a great and G
serious apprehension that an attack could be perpetrated upon
the Dutt family in view of the fact that Shri Sunil Dutt had already
been attacked. This apprehension was clearly set out in the
letter of Shri Sunil Dutt to the then DCP of Zone Vil dated
06.01.1993, wherein he asked for enhancing security H
462 SUPREME COURT REPORTS [2013] 16 S.C.R.
A arrangements further and for more police protection at his house
as deposed by PW-219 in this case.
75. It is stated that A-117 had no previous involvement or
conviction prior to one in 1992 which ended in acquittal. Thus,
according to him, he is not a previous offender or a convict. In
8
the event, this Court releases the appellant on Probation under
the provisions of the Probation of Offenders Act, neither any
injustice would occasion to anyone as the offence in which he
was convicted, is not even a social offence nor any prejudice
be caused to the prosecution. He asserted that he is not a
C habitual offender, and is not likely to commit any offence in
futl.ire. The TADA Court did not get any opportunity to complain
about the conduct of the appellant in 19 years. He further
submitted that he has also suffered the agony of long trial of
13 Y2 (thirteen and a half) years. The stress and trauma of the
D same, besides the fact that he has carried the tag of an alleged
terrorist for 13 Y2 (thirteen and a half) years though unwarranted,
a.id has been deprived of the company of his daughter, is a
punishment in itself. He has also stated that he had suffered
mentally, physically and emotionally in the last several years.
E
76. He also informed this Court that he got married again
in the year 2008 and is blessed with two children aged 1 and
% years and they need their father's presence in their life. He
further submitted that he has been actively involved in an AIDS
F charity and raises funds for the free treatment of aids patients
who cannot afford the same, besides visiting the hospitals/
centres. It is further submitted that he is on the Board of
Directors of "Save the Children Foundation" and helping in
raising funds for children who are needy, orphaned and
G destitute as their Brand Ambassador for a long time, even prior
to his being charged in this case.
77. In view of the above, learned senior counsel for A-117
draws attention of this Court towards the following decisions,
viz., Ved Prakash vs. State of Haryana, 1981 (1) SCC 447,
H
SANJAYDUTT (A-117) v. STATE OF MAHARASHTRA, THR. 463
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
this Court observed that the social background andthe personal A
factors of the crime-doer are very relevant although in practice
Criminal Courts have hardly paid attention to the social milieu.
or the personal circumstances of the offender.
78. In Juga/ Kishore vs. State of Bihar, (1972) 2 SOC 633 .s
this Court observed that the modern criminal jurisprudence
recognizes that no one is a born criminal and that a good many
crimes are the product of socio-economic milieu.
79. This Court in Ratanlal vs: State of Punjab; (1964) SCR
676 has observed to the effect that the Probation of Offenders C
Act, was enacted with a view to provide for the release of
offenders of certain categories on Probation or alter due
admonition and for matters connected therewith. The object of
the Act is to prevent the conversion of offenders into obdurate
criminals as a result of their association with hardened 0 ·
criminals. The above object is in consonance with the present
trend in the field of penology, according to which, efforts should .
be made to bring about correction and reformation of the
individual offenders and not to resort to retributive justice.
Although, not much can be done for hardened criminals, E
considerable stress has been laid on bringing about reform of
offenders not guHty of serious offences and of preventing their
association with hardened criminals. Tille Act gives statutory
recognition to the above objective. It is, therefore, provided that
offenders should not be sent to jail, except in certain· F
circumstances.
_80. The scope of Section 4 of the Probation of Offenders
_Act is much wider. It applies to any person found guilty of having
committed an offence not punishable with death or
· imprisonment for life. The same has also been held by this G
Court in Chhani vs. State of UP., (2006) 5 SCC 396'.
· 81. Section 360 of the Code of Criminal Procedure does
not provide for any role for probation officers in assisting the
H
464 SUPREME COURT REPORTS [2013] 16 S.C.R.
A courts in relation to supervision and other matters while the
Probation of Offenders Act does make such a provision. While
Section 12 of the Probation of Offenders Act states that a
person found guilty of an offence and dealt with under Section
3 or 4 of the Probation of Offenders Act, shall not suffer
B disqualification, if any, attached to the conviction of an offence
under any law. The Code of Criminal Procedure does not
contain parallel provision. Two statutes with such significant
differences could not be intended to co-exist at the same time
in thE! same area. Such co-existence would lead to anamolous
C results. The intention to retain the provisions of Section 360 of
the Code and the Probation of Offenders Act as applicable at
the same time in a given area cannot be gathered from the
provisions of Section 360 or any other provisons of the Code.
82. Keeping those information in the form of an additional
D affidavit, let us consider his claim and eligibility of applying
Section 4 of the Probation of Offenders Act.
83. Sub-section 4 of the Probation of Offenders Act
contains the words "Notwithstanding anything contained in any
E other law for the time being in force". The above non obstante
clause points to the conclusion that the provisions of Section 4
of the Probation of Offenders Act would have an overriding
effect and shall prevail if the other conditions prescribed therein
are fulfilled. Those conditions are:
F (i) The accused is found guilty of having committed an
offence not punishable with death or imprisonment
for life;
(ii) The Court finding him guilty is of the opinion that
G having regard to the circumstances of the case,
including the nature of the offence and the character
of the offender, it is expedient to release him on
probation;
(iii) The accused in such an event enters into a bond
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 465
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
with or without sureties to appear and receive A
sentence when called upon during such period not
exceeding three years as the court may ~irect and,
in the meantime, to keep the peace and be of good
behaviour.
B
84. The· underlying object of the above provisions obviously
·is that an accused person should be given a chance of
reformation, which he would lose in case he is incarcerated in
prison and associates with hardened criminals. ltis submitted
that the provisions of the said Act are beneficial provisions and, C
therefore, they should receive wide interpretation and should
not be read in a restricted sence vide lshar Das vs. State of
Punjab, 1973 (2) sec 65.
85. Section 4 of the Probation of Offenders Act applies to
all kinds of offenders, whether under or above the age of 21 D
years. This section is intended to attempt possible reformation
of an offender instead of inflicting upon him the normal
punishment of his crime. It is submitted that it is settled law that .
while extending benefit of the said provision, this Court has to
· exercise its discretion having regard to the circumstances in E
which the crime was committed, viz., the age, character and
antecedents of the offender. It is also settled law that such
exercise of discretion needs a sense of responsibility. The
section itself is clear that before applying the same, this Court
should carefully take into consideration the attendant F
circumstances.··
86. The circumstances and the nature of the offence as
analysed and discussed above are so serious and we are of
the· view that they do not warrant A-117 the benefit of the .
·provisions of the Probation of Offenders Act, however, taking G
note of various aspects, we reduce the sentence to minimum
period, viz., 6 years to 5 years. The appeal is disposed of on
the above terms.
H
466 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 87. In respect of A-118, in view of the discussion and the
above conclusion, we confirm the conviction and sentence
awarded to him by the Designated Court. Consquently, the
appeal is dismissed.
88. Insofar as A-124 is concerned, the Designated Court
8
has convicted him under Sections 3 and 7 read with Sections
25(1-A)(1-B)(a) of the Arms Act, 1959, as well as under Section
201 of IPC and sentenced him to undergo RI for 2 years on
both the counts separately. A perusal of all the materials relating
to A-124 shows that the Designated Court itself convicted and
C sentenced him under Section 25(1-B)(a) of the Arms Act along
with Section 201 of IPC. While clarifying the same, we hold that
there is no substantive evidence for convicting him under
Section 25(1-A) of the Arms Act, though the Designated Court
has referred to the same while awarding sentence to him. Also,
D considering his age, i.e. 82 years as on date and taking note
of the fact that the minimum sentence for the offence under
Section 25(1-B)(a) being one year, while confirming his
conviction, we reduce the sentence awarded to A-124 under
Section 25(1-B)(a) as well as under Section 201 IPC to 1 year
E which shall run concurrently. The appeal is disposed of on the
above terms.
Criminal Appeal No. 596 of 2011
The State of Maharashtra, through CBI .... Appellant(s}
F
vs.
Ajai Yash Prakash Marwali (A-120) ... Respondent(s)
89. Heard Mr. H.P. Rawal, learned ASG duly assisted by
G Mr. Satyakam, learned counsel for the appellant (CBI). None
appeared for the respondent.
90. The instant appeal is directed against the impugned
judgment and order dated 02.08.2007 passed by the
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 467
CBI, (STF), BOMBAY [P SATHASIVAM, J.]
Designated Court under TADA for the Bombay Bomb Blast A
Case, Greater Bombay in B.B.C. No.1/1993 whereby the
Respondent (A-120) has been acquitted of all the charges .
framed against him.
Charges: B
91. A common charge of conspiracy was framed against
all the co-conspirators including the respondent The relevant
portion of the said charge is reproduced hereunder:
"During the period from December, 1992 to April, 1993 at C
various places in Bombay, District Raigad and District I
Thane in India and outside India in Dubai (U.A.E.) Pakistan,
entered into a criminal· conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to o
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and E
Muslims by using bombs, dynamites, handgrenades and
other explosive substances like ROX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of or damage to 'and disruption of supplies F
of services essential to the life of the community, and to
achieve the objectives of the-conspiracy, you all agreed to
smuggle fire-arms, ammunition, detonators, handgrenacfes
and high explosives like ROX into India and to distribute· G
the same amongst yourselves and your men of confidence
for the purpose of committing terrorist acts and for the said
purpose to conceal and store all these arms, ammunition
and explosives at such safe places and amongst
yourselves and with your men of confidence till its use for
H
468 SUPREME COURT REPORTS [2013) 16 S.C.R.
A committing terrorist acts and achieving the objects of
criminal conspiracy and to dispose off the same as need
arises. To organize training camps in Pakistan and in India
to import and undergo weapon training in handling of arms,
ammunitions and explosives to commit terrorist acts. To
B harbour and conceal terrorists/co-conspirators, and also
to aid, abet and knowingly facilitate the terrorist acts and/
or any act preparatory to the commission of terrorist acts
and to render any assistance financial or otherwise for
accomplishing the object of the conspiracy to commit
c terrorist acts, to do and commit any other illegal acts as
were necessary for achieving the aforesaid objectives of
the criminal conspiracy and that on 12.03.1993 were
successful in causing bomb explosions at Stock Exchange
Building, Air India Building, Hotel Sea Rock at Sandra,
Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri
D
Bazar, Katha Bazar, Century Bazar at Worli, Petrol Pump
adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing
handgrenades at Macchimar Hindu Colony, Mahim and at
Bay-52, Sahar International Airport which left more than
257 persons dead, 713 injured and property worth about
E Rs.27 crores destroyed, and attempted to cause bomb
explosions at Naigaum Cross Road and Dhanji Street, all
in the city of Bombay and its suburbs i.e. within Greater
Bombay. And thereby committed offences punishable
under Section 3(3) of TADA (P) Act, 1987 and Section
F 120-8 of IPC read with Sections 3(2)(i)(ii), 3(3),(4), 5 and
6 of TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
·code and offences und~r Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
G 98 (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public
Property Act, 1984 and within my cognizance."
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 469
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
In addition to the first charge, the respondent (A~120) was A
also charged for having committed the following offence in
pursuance of the criminal conspiracy described at charge firstly: ·
At head Secondly: The respondent, in pursuance of the
aforesaid criminal conspiracy, was found to be connected 8
with the episode of possession of unauthorized arms and
hand grenades by A-117, A-118, A-124 and A-125 and
committed the following overt acts:
(a) The respondent, by receiving and keeping in his
possession one 9mm pistol and its cartridges, which were C
smuggled into the country for committing terrorist acts,
thereby aided the co-conspirator and committed an
offence punishable under Section 3(3) of TADA.
At head Thirdly: The respondent possessed the above D
mentioned pistol and its ammunition in Greater Bombay
which is specified as q notified area under clause (f) of
sub-section (1) of Section 2 of TADA and thereby
•
committed an offence punishable under Section 5 of
TADA.
E
At head Fourthly: The respondent, by possessing the
above mentioned arms and its ammunitions with intent to
aid terrorists committed an offence punishable under
Section 6 of TADA.
F
At_head Fifthly: The respondent, by possessing the
above mentioned arms and its ammunitions, 'committed an
offence punishable under Sections 3 and 7 read with
Section 25(1-A)(1-B)(a) of the Arms Act, 1959.
G
Conviction and Sentence:
92. The Designated Court, by impugned judgment dated
02.08.2007, after considering the materials placed on record
and after adverting to all the contentions raised and
H
470 SUPREME COURT REPORTS [2013] 16 S.C.R.
A submissions made, acquitted him of all the charges framed
against him.
Discussion:
9:3. Against the order of acquittal in respect of all the
B charges against the respondent (A-120), the CBI has filed the
present appeal. The only point for consideration in this appeal
is whether the order of acquittal rendered by the Designated
Court is justifiable or requires interference by this Court.
Keeping the basic principles in mind, in a matter when acquittal
C is recorded by the trial Court and the grounds on which the
Appellate Court can interfere, let us consider and dispose of
the above appeal.
94. It is not in dispute that A-120 has not made any
D confession and his co-accused A-125 relied on by the
prosecution has also not made any confession and even the
cqnfessional statements of other co-accused failed to disclose
any involvement of A-120 in any manner. The only allegation
against the present accused is that of seizure of a box
E containing a pistol from his house. The Designated Court, after
considEiring the evidence of panch witness (PW-211) regarding
the statement made by A-125 and after finding that there was
lot of variation in their statements and bereft of f'llaterials about
the role of A-120 and further finding that different stories have
been projected by the prosecution, refused to accept the same.
F After analyzing the entire statement of A-125, the trial Court
came to a conclusion that the same are insufficient to connect
A-120 as being the person who had received the same pistol
and rounds.
G 95. As has been rightly observed by the Designated Court,
mere recoveries of a .9mm pistol and the rounds from the
bungalow of A-120 would not be sufficient to connect him with
the said articles. It is settled law that the recoveries made must
be found to have been made as a consequence to the
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 471
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
statement made by the accused in custody. In other words, if A
the nexus in between is not established, the said statement
made would be inadmissible in evidence. The Designated
Court, after considering the well settled principles and the
materials placed concluded that "it will be further necessary to
. say that scrutiny of the evidence also does not reveals A-120 B
having purchased .9mm pistol and rounds ...... " The
Designated Court has also concluded that even if the statement
. made by A-125 is acceptable, in the absence of any supporting
oral and documentary evidence and taking note of the
improvement made by panch witness as well as in the c
statements of witnesses stage by stage "hardly there would be
any evid~nce to connect A-120 with the relevant contraband
articles" and rightly discarded the same.
96. In the light of the categorical finding by the trial Court
and after analyzing the materials placed by the prosecution, we D
fully concur with the said conclusion and according to us, with
the above said insufficient evidence, the order of acquittal
cannot be lightly interfered in the present appeal, consequently,
the appeal filed by the CBI fails and the same is dismissed.
E
Criminal Appeal No. 1104.of 2007
Samir Ahmed Hingora (A-53) .... Appellant(s)
vs.
F
The State of Maharashtra,
thro. Superintendent of Police,
CBI (STF), Bombay ..... Respondent(s)
WITH
Criminal Appeal No. 1026 of 2012 G
The State of Maharashtra,
through CBI (STF), Bombay .... Appellant(s)
vs.
H
472 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Samir Ahmed Hingora (A-53) .... Respondent(s)
**********
97. Heard Mr. Mukul Rohtagi and Mr. V.K. Bali, learned
senior counsel for A-53 and Mr. H.P. Rawal, learned ASG for
B the CBI.
Criminal Appeal No. 1104 of 2007
98. The present appeal is directed against the final
C judgment and order of conviction and sentence dated
29.11.2006 and 01.06.2007 respectively whereby the appellant
(A-53) has been convicted and sentenced by the Designated
Court under TADA for the Bombay Bomb Blast Case, Greater
Bombay in B.B.C. No.1/1993.
D Charges:
99. A common charge of conspiracy was framed against
all the co-conspirators including the appellant. The relevant
portion of the said charge is reproduced hereunder:
E "During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (U.A.E.)
Pakistan, entered into a criminal conspiracy and/o.r were
members of the said criminal conspiracy whose object
F was to commit terrorist acts in India and that you all agreed
to commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
G amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosive substances like ROX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 473
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
or as likely to cause death of or injuries to any person or A
persons, loss of or damage to and disruption of supplies
of services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunition, detonators,
handgrenades and high explosives like ROX into India B
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all
these arms, ammunition and explosives at such safe
places and amongst yourselves and with your men of c
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapon
training in handling of arms, ammunitions and explosives
0
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the E
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the c~_iminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at F
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump aqjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 2rf persons dead, 713 injured and G
property worth abod Rs.27 crores destroyed, and
attempted to cause l:\:>mb explosions at Naigaum Cross
Road and Dhanji Steet, all in the city of Bombay and its
suburbs i.e. within Greater Bombay. And thereby
H
474 SUPREME COURT REPORTS [2013) 16 S.C.R.
A committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120·8 of IPC read with
Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987
and read with Sections 302, 307, 326, 324, 427, 435,
436, 201 and 212 of Indian Penal Code and offences
8 under Sections 3 and 7 read with Sections 25 (1A),
(18)(a) of the Arms Act, 1959, Sections 98 (1)(a)(b)(c) of
the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of
the Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984 and
c within my cognizance."
In addition to the above-said principal charge of
conspiracy, the appellant was also charged on other counts
which are as under:
D At head Secondly; The appellant committed an offence
punishable under Section 3(3) of TADA by doing the
following oyert acts:-
(a) The appellant supplied 3 AK-56 rifles, its magazines,
ammunitions and hand grenades to Sanjay Dutt (A-117)
E at his residence at the instance of Anees Ibrahim Kaskar
(AA).
(b) The appellant arranged 7 air tickets from East West
Travels by making cash payment at the instance of A-1 to
facilitate the escape of members of Memon family to
F
Pakistan via Dubai.
A~ head Thirdly; The appellant acquired and facilitated
tr~nsport of the above mentioned arms and ammunitions
to A-117 with intent to aid terrorist and thereby committed
G an offence punishable unde- Section 6 of TADA.
100'. The Designated Court found the appellant guilty on
the charges mentioned at head firs1y (smaller conspiracy) and
clause (a) at head secom;lly. The api;ellant has been convicted
and sentenced for the above said charges as under:
H
.
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 475
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
Conviction and Sentence: A
(i) The appellant has been convicted for the offence of ·
conspiracy readwith the offences described at head firstly and
sentenced to RI for 9 years alongwith a fine of Rs. 1,00,000/-, ·
in default, to further undergo RI for 3 years for the commission
8
of offence under Section 3(3) of TADA. (charge firstly)
(ii) The appellant has been convicted for the offence under
section 3(3) of TADA for commission of acts mentioned at ·
clause (a) of head secondly, and sentenced to RI for 9 years
alongwith a fine of Rs. 1, 00,000/-, in default, to further undergo c
RI for 3 years. (charge secondly)
Evidence
101. The evidence against the appellant (A-53) is in the
form of:- D
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-
accused); and
E
(iii) testimony of prosecution witness.
Confesssional Statement of Samir Ahmed Hingora (A-53)
102. Confessional statement of A-53 under Section 15 of
TADA has·been recorded on 18.05.1993 (17:00 hrs.) and F
20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
t~e then DCP, Zone Ill, Bombay. A perusal of his confessional
statement states as under:-
(i) The appellant started a Video Library and Mustafa G
Dossa @ Mustafa Majnoo (A-138)-brother of Mohd. Dossa
(AA), was a member of his Library.
(ii) Tiger Memon used to work with A-138 in his shops at
Manish Market and became a friend of A-53.
H
476 SUPREME COURT REPORTS [2013) 16 S.C.R.
A (iii) The appellant started the business of film distribution
and production by the name of Magnum in partner.ship with
Hanif Kandawala (A-40)-since_deceased.
(iv) Anees Ibrahim Kaskar (AA) became a member of hjs
Video Library and was referred to by everyone as Anisbhai
8
since he; was the brother of Dawood Ibrahim.
(v) A-53 and Tiger Memon used to meet frequently and
discuss matters relating to the business.
c (vi) A-53 received a payment of Rs. 21.90 lakhs from Ayub
Memon sent through someone on 13.03.1993 (one day after
the blasts) as advance for purchasing rights of films.
(vii) A-53 had visited Dubai and met Anis Ibrahim many
times and sold the rights of many films to Mis Kings Video,
D managed by Anis. Anis also controls Al-Mansoor Video
Company through Chota Rajan.
(viii) On 15.01.1993, Ibrahim Musa Chauhan (A-41) and
Abu Salem (A-139) met A-53 at his office, and gave him a
E message that they have been directed by Anisbhai to see the
appellant regarding the handing over of wei3pons to A-117 at
his residence. ·
(ix) Anis Ibrahim called the appellant from Dubai and told
F him that A-41 and A-139 are his' men and that they will bring
one vehicle loaded with weapons and the appellant has to make
arrangements for off-loading and handing over the weapons to
A-117, and the rest will be taken by them for distribution to other
persons.
G (x) fnspit~ of the unwillingness of Hanif Kandawala, his
partner, in order to carry out the instructions, A-53 took A-139
to the residence of A-117, where A-117 hugged Abu Salem
and asked him about the weapons. A-117 then told A-139 to
bring the weapons the next day at 7 am.
H
SANJAY oun (A-117) v. STATE OF MAHARASHTRA, THR. 477
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
(xi) On 16.01.1993, A-53 led A~139 and A-41 to the house A
of Sanjay Dutt A-139 and A-41 were in a blue maruti van while
A-53 was in his own car.
(xii) At the residence oiA-117, A-53 saw that the blue van
was containing 9 AK-56 rifles and some hand grenades and .
6
gave 3 AK-56 rifles and some magazines to A-117. A-117 also
asked for some hand grenades which were put in a black bag
by A-139.
(xiii) A-.139 kept the rifles in a fiat car belonging to A~117.
The hand grenades were kept in the car of A-53, and he left C
the car at A-117's residence and took an auto rickshaw.
(xiv) A-53 collected his car from A-117's residence after
3 days when he called him and informed him that grenades .
have been taken out. · o
103. A perusal of the aforesaid confession shows that the
appellant was aware about .the goods which were to be off-
loaded an~ also about the purpose for which the same were
to be used which fact is clear from his 'Confession, viz., "Anees,
Bhai telephone to me from Dubai saying that Baba and E
Saleem are his men. They will bring one vehicle loaded with
weapons. You make arrangements for off-loading and hand
over weapons to A-117 and the rest will be taken by them for
distribution to other persons". Further, inspite of the
unwillingness of Hanif Kandawala, he proceeded to help the co- F
accused. So the contention of the appellant that he was a mere
navigator is misplaced and incorrect.
Confessional -Statements of co-accused:
104. Apart from his own confession, the involvement of the G
appellant has also been disclosed in the confessional
statements of the following co-accused. The legality and
acceptability of the confessions of the co-accused has already
been considered by us in the earlier part of our discussion. The
H
478 SUPREME COURT REPORTS [2013) 16 S.C.R.
A said confessions insofar as they refer to the appellant (A-53)
are summarized hereinbelow:
Confessional Statement of Ibrahim Musa Chauhan @
Baba (A-41)
B Confessional statement of A-41 under Section 15 of
TADA was recorded on 23.04.1993 (12:45 hrs.) and
25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189),
the then DCP, Zone X, Bombay. The said confession shows
that:
c
(i) On 15.01.1993, A-41 and A-139 went to the office of
Magnum in order to meet A-53 upon the instructions of Anees
who was in Dubai.
(ii) A-53 along with A-41, A-139 and later with A-41
D searched for garages in Pali Hill areas, Sandra as suggested
by Anees Ibrahim.
(iii) A-53 and A-139 left together on 15.01.1993.
E (iv) On 16.01.1993, A-139 came to his house in the
morning and they reached the office of A-53 at around 06:30-
06:45 a.m. A-139 and A-41 sat in one car followed by the car
of A-53 to the house of Sanjay Dutt (A-117).
(v) A-139 opened the van at the residence of A-117 and
F took out 9. AK-56 rifles, about 80 hand grenades and around
1500/2000 bullets in the presence of A.:53 and A-117.
(vi) A-139 kept 3 rifles, 9 magazines, 450 bullets and 20
hand grenades in the car of A-117.
G
(vii) A-53 kept 20 hand grenades in his car. A-53 also gave
a long sports bag to A-41 in which 3 rifles, 16 magazines, 25
hand grenades and 750 bullets were kept.
(ix) A-53 dropped A-41 to his car and after that they left
H
SANJAY DUTT (A~117) v. STATE OF MAHARASHTRA, THR. 479
CBI, (STF), BOMBAY [P. SATHASIVAM, J.] ·
the residence of A-117. A
A perusal of the confessional statement of A-41 shows that
the appellant helped the co-accused persons to look for a .
garage where the weapons could be off-loaded and after that
they were to be distributed to various persons. 8
Confessional Statement of Mobina @ Baya Moosa
Bhiwandiwala (A-96)
(i) On the directions of Tiger Memon, owner of
Magnum Videos (A-53) had sent Rs. 50,000/- to her C
residence on one.or two occasions.
(iii) After the blast, the owner of Magnum Videos (A-53)
had sent Rs. 50,000/- for help.
The above confession of A-96 shows that the appellant was D
in touch with Tiger Memon even after the blasts and on his
instructions, he sent Rs. 50,000/- to A-96· for help.
Confessional Statement of.Sanjay Dutt (A-117)
Confessional statement of A-117 under Section 15 of E
TADA was recorded on 26.04J993 I
(15:30 hrs.) and
28.04.1993 (16:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. The said confession reveals
as under: ·
F
(i) A~117 knew A-53 and he was acting in one of his films.
A-53 used to frequently come to his house for taking dates.
(ii) A~53 and A-40 repeatedly told A-117 to acquire a
firearm from them. G
(iii) In mid-January, A-.53, A-40 and A-139 came to the
house of A-117 at around 09:30 p.m. and told him that the
weapons will be delievered the next day. Next day, they again
came in the morning with one more person to the residence of
A-117. · H
480 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (iv) At the residence of A-117, in the presence of A-53, A-
139 took out weapons and handed it over to him.
(v) A-53 came to his house along with A-40 after 2-3 days
when A-117 returned 2 AK-56 rifles to them.
B The confession of A-117 corroborates in material
particulars with the confession of other co-accused persons.
Deposition of Prosecution Witness:
C 105. Apart from the aforesaid evidence, the following
prosecution witness deposed as under:
Deposition of Pandharinath Hanumanth Shinde (PW-218)
The relevant material in his evidence is as follows:-
D
(i) PW-218 identified A-53 in the TIP held on
27.05.1993 at the office of Crime Branch.
(ii) PW-218 identified A-53 in the Court.
E 106. Upon perusal of the entire evidence, it is clear that
the appellant was closely associated with Tiger Memon and
Anees Ibrahim Kaskar (AA). Further, inspite of the unwillingness
shown by his partner - Hanif Kandawala (A-40), the appellant
helped the co-accused searched for garages where the
F weapons were to be off-loaded and concealed whereafter they
were to be distributed to A-117 and.other persons. In addition
to the same, the appellant was also associated with co-
accused even after the blasts which fact is clearly discernible
from the confession of A-96 wherein she stated that after
G coming back to her house, her father informed her that owner
of Magnum Videos (A-53) had come and gave Rs. 50,000/- for
help.
107. Mr. Rohtagi, learned senior counsel for the appellant
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 481
CBI, (STF), BOMBAY [P. SATHASIVAM, J.].
pointed out that without establishing the pre-requisites as held A
in the case of State vs. Nalini, (1999) 5 sec 253, it is only on
the ground of acquaintance wi_th the main conspiratprs and
alleged knowledge acquired on phone that after handing over
·weapons to A-117, the balance would be taken for distribution,
for which the appellant has been erroneously convicted under B
Section 3(3). We are unable to accept the said claim. We have
already pointed out the appellant's proximity with Anees
Ibrahim. It was on the instructions of Anees that the arms were
delivered to Sanjay Dutt and because of the relationship of
Anees and Tiger/Dawood Ibrahim, it establishes a strong link . c
between A-53 and Anees. Though it was argued that there was
no proximity between the appellant and Anees, materials relied
on by the prosecution clearly prove their relationship. Further,
their relationship cannot be simply construed as a business
relationship. The materials placed on record by the 0
prosecution, relied on and accepted by the Special Judge
show that the .appellant was guilty of distributing arms to
persons other than SanjayDutt. The finding recorded by the trial
. Judge is that A-53 not only distributed weapons to A-117 but
also to third parties.
E
108. The CBI has successfully placed materials to show
that the appellant was responsible for arranging garages for the
storage of weapons. We have already adverted to the
confessional statement of A-41 wherein in categorical terms it
was asserted that A-53, the present appellant, along with A- F
41 and Ac139 searched for garages in Pali Hill areas, Sandra
where the weapons could be off loaded and after that they were
to be distributed to various persons as suggested by Anees
Ibrahim. In view of the same, the argument of the learned senior
counsel for the appellant is liable to be rejected. The G
confessional statement of A-41 also shows that the appellant
helped the co-accused persons to look for garages. In such
circumstance, it cannot be claimed that at no point of time A-
53 was ever aware of what was to be stored in the garages.
H
482 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 109. Mr. Rohtagi, learned senior counsel disputed the
admissibility of confession made by the appellant and
voluntariness of his statement. The Designated Court, on going
through the evidence of the officer who recorded his confession,
the procedure followed, opportunity given to the appellant,
B rejected the similar objection raised before him. Upon going
through all the materials, we agree with the reasoning of the
Special Judge and we are of the view that there is no flaw in
the procedure while recording the confession of the appellant.
C Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1026 of 2012
110. Though Mr. Rawal, learned ASG, prayed for
conviction of A-53 for the charge framed at head firstly, i.e.,
D larger conspiracy, in view of the above discussion, we are
satisfied that the materials available establish his involvement
only to the extent of the smaller conspiracy and the Designated
Court was justified in arriving at such conclusion and we fully
agree with the same, hence, the appeal filed by the State is
E liable to be dismissed.
Sentence:
111. According to learned senior counsel for A-53, out of
9 years of sentence awarded, he has completed 6 l'2 (six and
F a half) years and there are several extenuating circumstances
for reduction of the sentence. They are:
(i) The appellant is a sick person suffering from cardiac
problems since 2001;
G (ii) He has 6 stents in his arteries;
(iii) The appellant, in addition to heart disease, is a
diabetic patient (on insulin). While diabetes on its
own may not be a major ailment, it assumes far
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 483
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
greater seriousness when coupled with a serious A
heart ailment.
(iv) The appellant has already faced protracted trial for
•.. 13 % (thirteen and a half) years on day to day basis.
In fact, he has continued attendance after conviction B
as per bail conditions for further 5 years;
(v) The entire business and goodwill of the appellant
has been lost.
(vi) The appellant has already served about 6 % (six c
and a half) years (without remission).
112. Taking note of all these aspects and of the fact that
the CBI was not able to establish the charge relating to major
conspiracy and also that out of the period of 9 years, A-53 has
served nearly six and a half years of sentence and in the light 0
of the ailments and taking note of the fact that the minimum
sentence prescribed is 5 years, while confirming the conviction,
we reduce the sentence to the period already undergone.
113. The appeal filed by the accused is disposed of on E
the above terms. The appeal filed by the CBI is dismissed.
Criminal Appeal No; 1001 of 2007
Zaibunisa Anwar Kazi (A-119) ... Appellant(s)
F
vs.
The State of Maharashtra,
through Superintendent of Police,
CBl-STF, Bombay ... Respondent(s)
WITH
Criminal Appeal No. 392 of 2011
The State of Maharashtra, through CBI .... Appellant(s)
H
484 SUPREME COURT REPORTS [2013] 16 S.C.R.
A vs.
Zaibunisa Anwar Kazi (A-119) ..... Respondent(s)
114. Mr. Sushi! Kumar, learned senior counsel appeared
for the appellant (A-119) and Mr. Rawal, learned ASG duly
B assisted by Mr. Satyakam, learned counsel appeared for the
respondent (CBI).
Criminal Appeal No. 1001 of 2007
C 115. The instant appeal is directed against the final
judgment and order of conviction and sentence dated
28.11.2006 and 14.06.2007 respectively whereby the appellant
(A-119) has been convicted and sentenced to rigorous
imprisonment for 5 years by the Designated Court under TADA
for the Bombay Bomb Blast Case, Greater Bombay in B.8.C.
D No.1/1993.
Charges:
116. A common charge of conspiracy was framed against
E all the co-conspirators including the appellant. The relevant
portion of the said charge is reproduced hereunder:
"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (U .A.E.)
F Pakistan, entered into a criminal conspirac~· and/or' were
members of the said- criminal conspiracy whose object
was to commit terrorist.acts in India ancj that you all agreed
to commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
G established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosive substances like RDX or inflammable
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 485
CBI, (STF), BOMBAY [P. SATHASIVAM, J.]
. substances or fire-arms like AK-56 rifles, carbines, pistols A
and other lethal weapons, in such a manner as to cause
· or as likely to cause death of or injuries to any person or
persons, loss of or damage to and disruption of supplies
of services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed B
to smuggle fire-arms, ammunition, detonators,
handgrenades and high explosives like RDX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all c
these arms, ammunition and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps D
in Pakistan and in India to import and undergo weapon
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the E
commission of terrorist acts and to render any assistance
. financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary fqr achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1.993 were successful in causing bomb explosions F
at Sfock"Exchange Building, Air India Building, Hotel Sea·
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
_Theatre and in lobbing handgrenades at Macchimar Hindu G
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs.27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
H
486 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay. And thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120-B of IPC read with
Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987
B and read with Sections 302, 307, 326, 324, 427, 435,
436, 201 and 212 of Indian Penal Code and offences
under Sections 3 and 7 read with Sections 25 (1A),
(1B)(a) of the Arms Act, 1959, Sections 98 (1)(a)(b)(c) of
the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of
c the Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984 and
within my cognizance."
In addition to the first charge, the appellant (A-119) was
also charged for having committed the following offences in
D pursuance of the criminal conspiracy described as under:
At head Secondly: The appellant, in pursuance of
the aforesaid criminal conspiracy, has committed
the following overt acts:
E
(a) The appellant, in connivance with other co-
coRspirators kept in her possession AK-56 rifles,
its ammunitions and hand grenades which she
stored at her residence at the instance of Anees
. Ibrahim Kaskar (AA) which was brought to her
F residence by wanted accused Abu Salem Qayum
Ansari (then absconding now A-139) and Manzoor
Ahmed Sayed Ahmed (A-89) and thereby aided
and facilitated the distribution of firearms,
ammunition and explosives smuggled into India by
G other co-conspirators for committing terrorist acts
and thereby committed an offence punishable under
Section 3 (3) of TADA.
At head Thirdly: The appellant, in pursuance of
H
SANJAY DUTT (A-117) v. STATE OF MAHARASHTRA, THR. 487
·CBI, (STF), BOMBAY [P SATHASIVAM, J.]
the aforesaid criminal conspiracy, had in her A
possession, unauthorisedly, AK-56 rifles, its
ammunitions and hand grenades in Greater
Bombay which is specified as a notified area under
clause (f) of sub-section (1) of Section 2 of TADA
and thereby committed an offence punishable under B
Section 5 of TADA.
At head Fourthly: The appellant, in pursuance of
the aforesaid criminal conspiracy, with an intent to
aid terrorists and failed to give information to police/ C
magistrate contravened the provisions of the Arms
Act, 1959, the Arms Rules, 1962, the Explosive
Substances Act, 1908 and the Explosives Rules,
1983 and thereby committed an offence punishable
under Section 6 of TADA.
D
Conviction and Sentence:
117. The appellant (A-119) has been convicted and
sentenced as under:
(i) RI for 5 years with a fine of Rs. 25,000/-, in default, E
to further undergo RI for 6 months under Section
3(3) of TADA (charge secondly)
(ii) RI ·for 5 years along with a fine of Rs. 75,000/-, in
default, to further undergo RI for a period of 1 %(one F
and a half) years. (charge fourthly)
118. The Designated Court acquitted the appellant (A-119)
on the first and third charge. Challenging the conviction A-119
filed Criminal Appeal No. 1001/2007 and Criminal Appeal No. G
392/2011 has been preferred by the prosecution challenging
the acquittal of the appellant on the·charge of conspiracy alone.
Evidence
119. The evidence against the appellant (A-119) is in the H
488 SUPREME COURT REPORTS [2013] 16 S.C.R.
A form of:-
(i) confessions made by other co-conspirator; (co-
accused); and
(ii) testimony of prosecution witnesses.
B
120. Confessional Statements of co-accused:
A brief account of the evidence brought on record in
respect of A-119 is summarized as under:
C Confesssional Statement of Manzoor Ahmed Sayed
Ahmed (A-89)
Confessional statement of A-89 under Section 15 of
TADA has been recorded on 24.05.1993 (11: 15 hrs.) (Part I)
D and 26.05.1993 (Part II) (17:30 hrs.). The confession of A-89
with respect to the appellant is summarized hereunder:
"A-89 and A-139 went to the first floor of 22 Mount Mary,
Vidhyanchal Apartment and handed over the bag to a lady
and told that the bag contains arms for causing riots and
E they were sent by Anis Bhai and that they would· take the
bag after some days. After saying so, he gave the bag to
that middle aged lady. The lady opened the bag and after
seeing its contents, closed the same and took it inside the
room".
F
121. Upon perusal of the aforesaid confession, it is clear
that the appellant was in conscious possession of arms and
ammunitions and explosives in a notified area of Bombay, and
was also aware about the purpose for which they were to be
G used, that is, to cause riots in Bombay. On the other hand,
according to counsel for the appellant (A-119), the confession
of A-89 cannot be relied upon since it has no evidentiary value.
On the other hand, Mr. Rawal, learned ASG while relying on the
decision of this Court in Mohd. Ayub Dar vs. State of Jammu
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 489
CBI, (STF), BOMBAY [P. SATHASIVAM, J.)
and Kashmir, (2010)9 sec 312 contended that the conviction A
and sentence under charge secondly and fourthly is fully
justified. He relied heavily on the following conclusion arrived .
at by this Court which reads thus:
"59. It would, therefore, be clear, as rightly contended by B
Shri Rawal that merely because the guidelines in Kartar
Singh v. State of Punjab were not fully followed,
\
that by
itself does not wipe out the confession recorded. We have
already given our reasons for holding that the confession
was recorded by AK. Suri (PW 2) taking full care and C
cautions which were required to be observed while
recording the confession.
60. In Ravinder Singh v. State of Maharashtra it has been
observed in para 19 that if the confession made by the
accused is voluntary and truthful and relates to the accused D
himself, then no further corroboration is necessary and a
conviction of the accused can be solely based on it. It has
also been observed that such confessional statement is
admissible as a substantive piece of evidence. It was
. further observed that the said confession need not be E
tested for the contradictions to be found in the confession
of the co-accused. It is for that reason that even if the other
oral evidence goes counter to the statements made in the
confession, one's confession can be found to be voluntary
and reliable and it can become the basis of the conviction." F
In addition to the proposition of law mentioned above, the
acceptability of confession of co-accused has already been
discussed and considered in the earlier part of our judgment,
there is no need to repeat the same once again.
'
G
Other evidence:
Deposition of Dilip Bhandur Gosh (PW-283)
122. PW-283 deposed as under:
H
490 SUPREME COURT REPORTS [2013) 16 S.C.R.
A (i) At the relevant time, he was working as the
watchman in the Vidhyanchal Society.
(ii) He further deposed that he will be able to identify
the occupants of the said society in the year 1993
B (iii) He stated that the appellant was residing on the first
floor of B Wing of the said society
(iv) He identified the appellant before the court.
C The aforesaid evidence corroborates the fact that the
appellant was staying on the first floor of the Vidyanchal Building.
123. Upon appreciation of the entire evidence, the
Designated Court held as under:
D "32) With regard to the case of A-119 there appears
similarity in many of the aspects with A-89. With regard to
the defence criticism of the material evidence against her
being in shape of material in confession of A-89 all the
dilation made about the submissions canvassed that
E conviction cannot be made on the basis of material in
confession of co-accused would be applicable. In the said
context, it will be necessary to add that material in the
confession of co-accused being now held to be
substantive piece of evidence and considering the
circumstances relevant to the role played by A-119 i.e. only
F
3· persons being present when the relevant act of taking
and storing the weapons was effected and thus there being
no other corroborative material, which could have been
avgilable the said matters in the confession will not be liable
to be discarded on the count of there being no
G corroborations as stated earlier. Now considering the
period in which the relevant had occurred and the period
after which the police had received the information, merely
because evidence does not reveal of any material being
found at the house of A-119 will not be a ground for
H
SANJAYDUTI (A-117) v. STATE OF MAHARASHTRA, THR. 491
CBI, (STF), BOMBAY [P. SATHAStVAM, J.]
discarding the said material in the confession of A-89. As A
a matter of fact, event the said material itself reveals that
the said weapons were to be kept with her and were to
be collected back by Abu Salem; non-finding of weapon
with her clearly appears to be insignificant circumstance.
B
33) Thus the evidence having clearly denoted that weapons
were kept with her for storage purpose and they were to
be collected back, A-119 cannot be said to be in
possession of contraband material as all the time the
possession of the said weapons would have been that of
main conspirator who had kept the same with her. In view C
of the same, alike A-89 she cannot be said to be guilty
for commission of offence under Section 5 of TADA and
the relevant sections under the Arms Act, for which she is
charged at the trial. Similarly, for the same reasons
because of which A-89 cannot be said to be guilty for D
offence of conspiracy. She also cannot be said tobe guilty
for commission of such offence. It is indeed true that
considering the role played by her in storing the weapons
in her house or even for A-89 being also instrumental for
taking the said weapons does create a strong suspicion E
of both of them being man of confidence of prime
conspirator. However, since shrouding of suspicion cannot
take the place of proof and there being paucity of material
that both of them had knowledge of object of any particular
conspiracy both of them cannot be held guilty for F
commission of offence of conspiracy. Thus, alike A-89 she
will be also required to be he.Id not guilty for commission
of offence for which she was charged at head firstly.
34) However, considering the repeated participation of A- G
119 in allowing absconding accused Anees Ibrahim to
store the weapons at her house or with her, herself taking
up the weapons in spite of knowing the purpose for which
the same were sent by Anees, the evidence pertaining to ·
second occasion clearly revealing that the weapons were H
492 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 2 AK-56 Rifles and the ammunition and thereby all the
evidence establishing that the same being brought to India
for commission of terrorists Act i.e. by and for the terrorists,
act committed by her will clearly fall within the four corners
of Section 3(3) of TADA. Similarly, her act of keeping such
B a material in the house, even after knowing the purpose
for which the same were brought to India clearly reveals
that by the same she was aiding and abetting the terrorists
by contravening the provisions of the Arms Act. As such
she will be required to be held guilty for commission of
c offence under Section 6 of TADA.
35) As a result of the aforesaid discussion, Point No. 163
to 166 and so also relevant points framed for offence of
conspiracy will be required to be answered in consonance
with conclusions arrived during the aforesaid discussion
D i.e. affirmative for holding A-89 arid A-119 guilty for offence
under Section 3(3) of TADA and A-119 also guilty for
offence under Section 6 of TADA and negative with regard
to the other charges framed against them at a trial. Thus
Point No. 163 to 166 stands answered accordingly."
E
124. The above discussion shows that the Designated
Court convicted the appellant under Section 3(3) and Section
6 of TADA only on the basis of the confessional statement of
A-89 and the evidence of PW-283 Chowkidar (watchman in the
F building). Admittedly; the appellant, at no point of time, had
made any confession admitting her guilt. Equally, it is not in
dispute·that no recovery has been affected from her house. The
only incrimin'ating circumstance against her is the statement of
A-89 that while handing over a plastic bag, he mentioned that
G it contains AK-56 rifle and other arms. It is also his claim that
after knowing the contents, she received the same and kept it
in her house.
125. Taking note of all these aspects, absolutely, there is
no case insofar as the main conspiracy against her and we are
H
SANJAY DUTI (A-117) v. STATE OF MAHARASHTRA, THR. 493
CBI, (STF), BOMBAY [P. SATHASIVAM, J]
satisfied that the Designated Court has rightly acquitted her of A
the main charge i.e. charge firstly. However, upon perusal of
the entire evidence, the judgment passed by the Designated
Court is upheld to the extent of Chari;"' secondly and fourthly.
126. In view of the minimum sentence of 5 years 8
prescribed under Sections 3(3) and 6 of TADA, we have no
other option, but to confirm the conviction and sentence as
awarded by the Designated Court. Consequently, the appeal
· fails and is accordingly dismissed.
Appeal by the State of Maharashtra through CBI: C
Criminal Appeal No. 392 of 2011
127. Though Mr. Rawal, learned ASG, prayed for
conviction of A-119 for the. charge framed at head firstly, i.e., D
conspiracy, in view of the above discussion, we are satisfied
that the Designated Court was justified in arriving at such a
conclusion and we fully agree with the same. Hence, the appeal
filed by the State is liable to be dismissed.
128. The appellants-accused concerned are directed to E
surrender within a period of 4 (four) weeks from today in order
to serve the remaining period of sentence. The Designated
Court is directed to take appropriate steps for their custody in
case of failure to comply with the above said direction.
F
129. For convenience, we have reproduced the conclusion
arrived at in respect of all the appeals dealt with under this part
in Annexure 'A' appended hereto.
130. We must in the end express our deep gratitude to
learned senior counsel/counsel for both sides who rendered G
relentless assistance and support to the Bench in arriving at
its decision. Their efforts are salutary and we record our
appreciation for the same.
Kalpana K. Tripathy Appeals disposed of.. H
494 SUPREME COURT REPORTS [2013] 16 S.C.R.
A s Criminal Accused Name s e n t Awa rd
No Appeal and Number. Designated by
i
Court Supreme
Court
1. 1060/2007 Sanjay Dutt RI for 6 years Reduced
B (A-117) to RI for 5
years
'2. 1102/2007 Yusuf Mohsin RI for 5 years Confirmed
Nulwalla (A-118)
c 3. 1€587/2007 Kersi Bapuji RI for 2 years Reduced
Adajania (A-124) to RI for 1
;
year
!
. 4. 596/2011 Ajai Yash Parkash Acquitted State
(By State) Marwah (A-120) appeal
D
dismissed
I
I 5. 1104/2007 Samir Hingora RI for 9 years Reduced
(A-53) to the
period
c: already
under-
gone.
I with
F 1026/2012 . Dismissed
(By State)
6. 1001/2007 Zaibunisa Anwar RI for 5 years Confirmed
Kazi (A-119)
G with
392/2011
(By State) Dismissed
H
[2013) 16 S.C.R. 495
UNION OF INDIA AND OTHERS A
v.
SANJAY JETH! AND ANOTHER
(CIVIL· APPEAL NO. 891-t OF 2012)
OCTOBER 18, 2013 . B
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]
Armed Forces Rules, 1954 - rr. 177, 179 and 180 -
Armed Forces Tribunal - Tribunal setting aside the decision
rendered by the Additional Court of Inquiry and consequential C
action taken or orders passed pursuant to the said order
against first respondent and directing to convene a fresh Court
of Inquiry (CO/) with a different Presiding Officer and other
independent members - Propriety - Held: On facts, proper -
What really weighed with the Tribunal while passing the D
impugned order was that such members constituted the CO!
who were biased or reasoned to be biased and such bias was
discernible - In quasi-judicial proceedings, the authority
empowered to decide a dispute between the contesting
parties has to be free from bias - When free from bias is E
mentioned, it means there should be absence of conscious
or unconscious prejudice to either of the parties - In the case
at hand, the Technical Members of the Tribunal had compiled
the documents, · adopted the methodology, made
observations, drawn inferences and expressed the view and, F
above all, they had prepared the report which was brought on
record as a document- To say, they had not played any role
would tantamount to blinking at reality - Their inclusion as the
Technical Members was not legally permissible - Even
applying the rigorous substantive test, a case of prejudice G
came into full play in the case at hand - Once a COi has been
constituted to inquire into the allegations relating to a person's
character and military reputation subject to the Act it should
not be done by the persons who have expressed their views
495 H
496 SUPREME COURT REPORTS [2013] 16 S.C.R.
A in writing behind the back of the person and assumed the role
of the recommending authority which is statutory in nature to
take disciplinary action - Law does not countenance the same
- Also, in the fitness of things, the Presiding Officer should
have recused himself to preside over the CO/ since his
9 inclusion in the CO/ had been objected to, on an earlier
occasion, yet he was allowed to continue and was not changed
- Natural justice - Bias.
Armed Forces Rules, 1954 - r.180 - Court of Inquiry
C (CO/) - What r. 180 postulates - Held: r. 180 has a binding
effect on the CO/ - The Rule provides for procedural
safeguards regard being had to the fact that a person whose
character and military reputation is likely to be affected is in
a position to offer his explanation and in the ultimate eventuate
may not be required to face disciplinary action - Thus
D understood, the language employed in r. 180 postulates of a
fair, just and reasonable delineation -Duty of the authorities
to ensure that there is proper notice to the person concerned
and he is given opportunity to cross-examine the witnesses
and, most importantly, nothing should take place behind his
E back.
Armed Forces Tribunal Act, 2007 - s. 14 - Jurisdiction,
powers and authority of the tribunal in service matters - Held:
Tribunal required to decide both questions of law and facts
F that may be raised before it and conferred powers to deal with
the cases in promptitude - Promptitude does not ostracize or
drive away the apposite exposition of facts and necessary
ratiocination - A seemly depiction of factual score, succinct
analysis of facts and law, pertinent and cogent reasoning in
G support of the view expressed having due regard to the
rational methodology, are imperative.
Administrative Law - Natural Justice - Bias - Effect of -
Held: Bias is an insegregable facet of the concept of natural
JUStice as a genus - Question of bias would arise depending
H
UNION OF INDIA v. SANJAY JETHI 497
on the facts and circumstances of the case - Challenge of A
bias, when sustained, makes the whole proceeding or order
a nullity, the same being coram non-judice.
The legal propriety of the judgment passed by the
Arnied Forces Tribunal setting aside the decision B
rendered by the Additional Court of Inquiry (COi) and
consequential action taken or orders passed pursuant to
the said order against the first respondent and directing
to convene a fresh Court of Inquiry (COi) with a different
Presiding Officer and other independent members, was C
called in question in the present appeal.
Four reasons weighed with the Tribunal while
passing the impugned judgment, namely, (i) that though
the tribunal vide its earlier judgment had directed the
witnesses concerned with the annexures which were D
brought on record before the COi were to be made
available for cross-examination, the said witnesses were
not made subject to cros~-examination tiy the delinquent
officer; (ii) that though the inclusion of the Presiding
Officer in the COi had been objected to on earlier E
occasion, he was allowed to continue and was not
changed; (iii) that in spite of the Technical Members had
prepared and arranged the documents which would
mean that they had expressed an opinion at an earlier
stage, yet they were retained as Members of the COi as F
a consequence of which the principles of natural justice
were violated, for one cannot be the judge in his own
cause; and (iv) that the doctrine of bias comes into play
as the Presiding Officer as well as the Technical Members
would have a tendency to support their own reports/ G
documents and it is against the spirit of Rule 180.
The issues that therefore emerged for consideration
before this Court were whether the tribunal was justified
in holding that the constitution of the COi which
consisted of two Technical Members and the Presiding H
498 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Officer was vitiated as there was possibility of their having
an interest in the proceedings as a consequence of
which being biased or there could be a perception or
likelihood of bias in the decision making process which
would raise a doubt pertaining to the decision by a
B prudent or rational person; and whether the Presiding
Officer and the Technical Members should have been
made available for cross-examination in a COi to meet the
necessary command of Rule 180 of the Armed Forces
Rules, 1954 and further whether there was a real violation
c of the principles of natural justice which ultimately
vitiated the proceedings of the Additional COi.
Dismissing the appeal, the Court
HELD:1. The .authorities, as far as Rule 180 of the
D Armed Forces Rules, 1954 is concerned, are to the effect
that when a COi is set up under Rule 177 and during the
course of enquiry, character or military reputation of a
person is likely to be affected, he should be granted full
opportunity to participate in the proceedings; that the COi
E in its very nature ts likely to examine certain issues
generally concerning a situation or persons; that his
participation could not be avoided on a mercurial plea
that no specific enquiry was directed against the person
whose character or military reputation is involved; that
F the concerned person shall be afforded full opportunity
so that nothing is done at his back and without
opportunity of participation; that it is the command of the
said provision to ensure such participation; that it is not
a condition precedent to always hold that a COi for
G proceeding a trial by court martial where character or
military reputation of the officer concerned is likely to be
affected; that the COi is· in the nature of a fact finding
enquiry committee; that the participation in a COi is at a
stage prior to the trial by court martial; that the said rule
H gives adequate protection to the person affected at the
UNION OF INDIA v. SANJAY JETHI 499
stage. of COi and there is no provision for supplying the A
accused with a copy of the report of the COi; and that the
proceedings before a COi are not adversarial
proceedings. [Para 23] [519-D-H]
Lt. Col. Prithi Pal Singh Bedi v. Union of India and others
8
AIR 1982 SC 1413: 1983 (1) SCR 393; Uma Nath Pandey
and others v. State of U.P. and another AIR 2009 SC 2375:
2009 (4) SCR 374; Major General lnder Jit Kumar v. Union
of India and others (1997) 9 sec 1; Union of India and Others
v. Major A. Hussain (IC-14827): (1998) 1 SCC 537: 1997 (6) C
Suppl. SCR 218 and Major G.S. Sodhi v. Union of India
(1991) 2 sec 382 - referred to.
2.1. In the instant case, what really weighed with the
tribunal while passing the impugned order is that such
members constituted the COi who were biased or D
reasoned to be biased and such bias is discernible. Bias
is an insegregable facet of the concept of natural justice
as a genus. The fundamental principles of natural justice
are ingrained in the decision making process to prevent
miscarriage of justice. It is applicable to administrative E
enquiries and administrative proceedings. It is also
fundamental facet of principle of natural justice that in the
case of quasi-judicial proceeding the authority
empowered to decide a dispute between the contesting
parties has to be free from bias. When free from bias is F
mentioned, it means there should be absence of
conscious or unconscious prejudice to either of the·
parties. [Para 29] [523-A-D]
2.2. The question of bias would arise depending on
the facts and circumstances of the case. It cannot be an G
imaginary one or come into existence by an individual's
perception based on figment of imagination. While
dealing with the plea of bias advanced by the delinquent
officer or an accused a court or tribunal is required to
·. adopt a rational approach keeping in view the basic H
500 SUPREME COURT REPORTS [2013] 16 S.C.R.
A concept of legitimacy of interdiction in such matters, for
the challenge of bias, when sustained, makes the whole
proceeding or order a nullity, the same being coram non-
judice. One has to keep oneself alive to the relevant
aspects while accepting the plea of bias. What is relevant
8 is actually the reasonableness of the apprehension in this
regard in the mind of such a party or an impression would
go that the decision is dented and affected by bias. To
adjudge the attractability of plea of bias a tribunal or a
court is required to adopt a deliberative and logical
c thinking based on the acceptable touchstone and
parameters for testing such a plea and not to be guided
or moved by emotions or for that matter by one's
individual perception or misguided intuition. [Para 45]
[532-8-E]
D A.K. Kraipak v. Union of India (1969) 2 SCC 262: 1970
(1) SCR 457; Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport Corporation and others AIR 1959 SC
308: 1959 Suppl. SCR 319 Gul/appalli Nageswarrao v. State
of A.P. and others AIR 1959 SC 1376: 1960 SCR 580 Dr. G.
E Sarana v. University of Lucknow and others (1976) 3 SCC
585: 1977 (1) SCR 64; Manak Lal v. Dr. Prem Chand Singhvi
and others AIR 1957 SC 425: 1957 SCR 575; Secretary to
Government, Transport Deptt., Madras v. Munuswamy
Mudaliar and another 1988 (Supp) SCC 651: 1988 Suppl.
F SCR 673; Kumaon Manda/ Vikas Nigam Ltd. v. Girja Shankar .
Pant and others (2001) 1 SCC 182: 2000 (4) Suppl. SCR
248; S. Patthasarathi v. State of Andhra Pradesh (1974) 3
SCC 459: 1974 (1) SCR 697; G.N. Nayak v. Goa University
and others (2002) 2 SCC 712: 2002 (1) SCR 636; Delhi
G Financial Corpn. and another v. Rajiv Anand and others
(2004) 11 SCC 625; Chandra Kumar Chopra v. Union of India
and others (2012) 6 sec 369: 2012 (5) SCR 1029; State of
Gujarat and another v. Justice R.A. Mehta (Retired) and
others (2013) 3 SCC 1: 2013 (1) SCR 1; Ranjit Thakur v.
H Union of India and others (1987) 4 sec 611: 1988 (1) SCR
UNION OF INDIA v. SANJAY JETHI 501
512 and Major G.S. Sodhi v. Union of India (1991) 2 see A
382 - referred to.
Frome United Breweries v. Bath Justices (1926) AC 586;
· Metropolitan Properlies Co. (F.G.C.) Ltd. v. Lannon (1968) 3
WLR 694; Franklin v. Minister of Town and Country Planning 8
1948 AC 87; R. v. Bow Street Metropolitan Stipendiary
Magistrate, ex ·p Pinochet Ugarle (No. 2) (2000) 1 AC 119;
Locabail Locabail (U.K.) Ltd. v. Bayfield Properlies Ltd. 2000
QB 451; Ebner, Re. (1999) 161 ALR 55; President of the
Republic of South Africa v. South African .Rugby Football C
Union (1999) 4 SA 147; Vassiliadas v. Vassiliades AIR 1945
PC 38; Allinson v. General Council of Medical Education and
Registration (1894) 1 QB 759; Metropolitan Properlies Co.
(F.G.C.) Ltd. v. Lannon (1969) 1 QB 577; Public Utilities
Commission of the District of Columbia v. Pollak 343 US 451
and Regina JI. Liverpool City Justices, ex parte Topping D
(1983) 1 All ER 490 - referred to.
Principles of Administrative Law by J.A.C. Griffith and
H Street (Fourth Edition) - referred to.
E
Halsbury's Laws of England, Fourth Edition, Volume 2,
paragraph 551
3. The case at hand is to be appreciated in its factual
backdrop whether there has been "really likelihood of
bias". In a COi participation of a delinquent officer whose F
character or military reputation is likely to be affected is
a categorical imperative. The participation has to be
meaningful, effective and he has to be afforded adequate
opportunity. Rule 180 is framed under the Army Act and
it has the statutory colour and flavour. It has the binding G
effect on the COi. The Rule provides for procedural
safeguards regard being had to the fact that a person
whose character and military reputation is likely to be
affected is in a position to offer his explanation and in the
ultimate eventuate may not be required to face. H ·
502 SUPREME COURT REPORTS [2013) 16 S.C.R.
A disciplinary action. Thus understood, the language
employed in the Rule 180 lays postulates of a fair, just and
reasonable delineation. It is the duty of the authorities to
ensure that there is proper notice to the person
·concerned and he is given opportunity to cross-examine
B the witnesses and, most importantly, nothing should take
place behind his back. It is one thing to say that the COi
may not always be essential or sine qua non for initiation
of a court martial but the another spectrum is once the
authority has exercised the power to hold such an inquiry
c and the COi has recommended for disciplinary action,
then the recommendation of the COi is subject to judicial
review. While exercising the power of judicial review it
becomes obligatory to see whether there has been due
compliance of the stipulates prescribed under the Rule,
for the language employed in the said Rule is absolutely
0
clear and unambiguous. One cannot stretch the said
concept at ·infinitum on the bedrock of grant of
opportunity and fair play. It has to be tested on the
touchstone of factual matrix of each case. [Para 46] [532-
E F-H; 533-A-E]
4. In the case at hand, initially the COi was
constituted by three members by order dated 22.7.2009
and it was asked to investigate certain issues. Thereafter,
an amendment was brought regarding composition of
F the COi vide order dated 28.7.2009. The core of
controversy, is the inclusion of the Technical Members
and the Presiding Officer in the COi. The respondent
raised the plea of bias against the Technical Members and
had objected to the inclusion of Brig. N.S. Ahamed as
G Presiding Officer. The Technical Members have
expressed their opinion after analysis of the documents.
They have, in detail, scrutinized the documents, drawn
their inferences and made their observations. By no
stretch of imagination it can be said that it is an
H arrangement of documents or pagination of documents.
UNION OF INDIA v. ,SANJAY JETHI 503
True it is, they are not the authors of the original 1A
documents but their analysis and inference have been
used against the respondent in the earlier COi and in the
Additional COi. It cannot be brushed aside by saying that
Technical Members did not sign the final report. Once
they have given an opinion, the possibility to support the B
same cannot be totally discarded. That is where the real
likelihood of bias comes into play. If one has something
substantial, relevant or material to do with the case he is
disqualified. In the case at hand, the T~chnical Members
had compiled the documents, adopted! the methodology;
made observations, drawn inferences a,nd expressed the C
view and, above all, they had prepared the report which
has been brought on record as a document. To say, they
had not played any role would tantamount to blinking at
reality. Their inclusion as the Technical Members is not
legally permissible. It is so as the said respondent is 0
bound to be prejudiced. Even applying the rigorous
substantive test, a case of prejudice comes into full play
in the case at hand. [Paras 47, 48, 51 and 52) [533-F; 534i
C; 536-0-E; 537-D-H; 538-A-B]
E
5. Once a COi has been constituted to inquire into
the allegations relating to a person's character and
military reputation subject to the Act it should not be done
by the persons who have expressed their views in writing
behind the back of the person and assume the role of the F
recommending authority which is statutory in nature to
take disciplinary action. Law does not countenance the .
same. In the present case it is irrefragably clear that the
recommendation of the COi was the sole basis on which
the disciplinary action has been initiated. Nothing else G
had come on record as observed by the tribunal on earlier
occasion as well as by the impugned order and the said
finding is unassailable. That being the position, in the
fitness of things, the Presiding Officer should have
recused himself to preside over the COi. However, on
H
504 SUPREME COURT REPORTS [2013] 16 S.C.R.
A earlier occasion the tribunal had not quashed the entire
proceedings and the same was not challenged by either
of the parties. Therefore, the Additional COi which has
been directed by the tribunal by the impugned judgment,
shall only function as an Additional COi and deal with the
8 documents which were produced earlier before the
tribunal. [Para 54) (539-G-H; 540-A-C]
6. Respondent No. 1 at one point of time had filed a
long list of witnesses. On the earlier occasion the tribunal
permitted for examination or cross-examination of
C witnesses who had something to do with the documents.
The Additional COi shall keep that in view so that there
is no procrastination of the proceedings at the behest of
the delinquent officer, for natural justice has also its own
limitations. [Para 55] (540-D-EJ
D
7. Though, in the case at hand, the verdict of the
tribunal is being sustained, it is found that the tribunal did
not advert to the necessitous facts. Section 14 of the
Armed Forces Tribunal Act, 2007 occurs in Chapter Ill of
E the said Act and deals with jurisdiction, powers and
authority of the tribunal in service matters. Under sub-
section (5) of Section 14 the tribunal is required to decide
both questions of law and facts that may be raised before
it. The tribunal has been conferred powers to deal with
F the cases in promptitude. Promptitude does not ostracize
or drives away the apposite exposition of facts and
necessary ratiocination. A seemly depiction of factual
score, succinct analysis of facts and law, pertinent and
cogent reasoning in support of the view expressed
having due regard to the rational methodology, are
G imperative. [Para 56) [540-F-H; 541-A-C)
Case Law Reference:
1983 (1) SCR 393 referred to Para 4
H 2009 (4) SCR 374 referred to Para 5
UNION OF INDIA v. SANJAY JETHI 505 .
(1997) 9 sec 1 referred to Para 20 A
(1991) 2 sec 382 referred to Para 20
1997 (6) Suppl. SCR 218 referred to Para 22
. 1970 (1) SCR 457 referred to Para 29 B
1959 Suppl. SCR referred to Para 29
1960 SCR 580 referred to Para 29
1977 (1) SCR 64 referred to Para 29
c
1957 SCR 575 referred to Para 29
(1926) AC 586 referred to Para 31
1988 Suppl. SCR 673 referred to Para 34
2000 (4) Suppl. SCR 248 referred to Para 35 D
1974 (1) SCR 697 referred to Para 36
(1968) 3 WLR 694 referred to Para 36
1948 AC 87 referred to Para 36 E
(2000) 1 AC 119 referred to Para 36
2000 QB 451 referred to Para 36
(1999) 161 ALR 55 referred to Para 36
F
(1999) 4 SA 147 referred to Para 36
2002 (1) SCR 636 referred to Para 37
(2004) 11 sec 625 referred to Para 38
G
2012 (5) SCR 1029 referred to Para 39
2013 (1) SCR 1 , referred to Para 40
1988 (1) SCR 512 referred to Para 42
H
506 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (1991) 2 sec 382 referred to Para 42
AIR 1945 PC 38 referred to Para 42
(1894) 1 QB 759 referred to Para 43
(1969) 1 QB 577 referred to Para 43
B
343 us 451 referred to Para 43
(1983) 1 All ER 490 referred to Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c 8914 of 2012.
From the Judgment & Order dated 12.10.2012 of the
Armed Forces Tribunal, Regional Bench, Mumbai in Transfer
Application No. 38 of 2011.
D Paras Kuhad, ASG, Jitin Chaturvedi, R.
Balasubramaniam, Abhinav Mukherjee, Shalaj Mridul, B.V.
Balaram Das for the Appellants.
Shekhar Naphade, Ashok K. Mahajan for the
E Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The legal propriety of the judgment
and order dated 12.12.2012 in TA No. 38 of 2011 passed by
F the Armed Forces Tribunal, Regional Bench at Mumbai (for
short "the tribunal") ~etting aside the decision rendered by the
Additional Court of Inquiry and consequential action taken or
orders passed pursuant to the said order and directing to
convene a fres,h Court of Inquiry (COi) with a different Presiding
Officer and other independent members, if decision is taken
G to proceed against the 1st respondent, is called in question in
the present appeal.
2. The factual score as depicted is that on 5.8.2009, a
complaint was made by one of the officers alleging irregularity
H in the hiring of Civil Hin~d Transport (CHT), which were used
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 507
for the purpose of;supply of ordnance stores to units spread A
over the country, including remotest field and high altitude area
by the respondent No. 1 who holds the rank of Colonel in the
Army. On the basis of a complaint, the General Officer
Commanding-in-Chief, Pune initiated an action against the
respondent No. 1 by making his attachment with HQ Sub Area B
on 6.8. 2009 and also convened a Board of Officers on
21.7.2009 for ascertaining the truthfulness of the allegations.
On 22.7.2009 the said Board seized the entire records and
submitted a report. On the premises of 'hat report, a COi was
convened against the respondent No. 1 to investigate into the c
alleged irregularities.
3. The COi conducted an inquiry and on 8.3.2010
recommended for taking appropriate disciplinary action
against the 1st respondent and some other officers. On the
basis of the said recommendation on 23.2.2010 the first D
respondent was attached to the Head Quarters, Mumbai Sub
Area till finalization of the disciplinary proceedings. At that
juncture,. respondent No. 1 filed Original Application No. 283
of 2010 before the Principal Bench of the tribunal at New Delhi
challenging the COi proceedings contending, inter alia, that he E
had been deprived of the right of cross-examination as
stipulated under Rule 180 of the Armed Forces Rules, 1954
(for short "the Rules"); and that there had been non"supply of
documents which were annexed after conclusion of the
proceedings before the COi. As the factual matrix would unveil, F
on 17 .6.2010 the hearing of charges commenced and the
Commanding Offrcer, Mumbai Sub Area, under Rule 22
directed for recording of Summary of Evidence under Rule 23.
4. The Original Application filed before the tribunal was G
disposed of on 8.10.2010. While dealing with the grievance
pertaining to violation of Rule 180, especially the deprivation
of the right to cross-examine, the tribunal referred to the
. decision in Lt. Col. Prithi Pal Singh Bedi v. Union of India.and
1. AIR 1982 SC 1413. H
508 SUPREME COURT REPORTS [2013] 16 S.C.R.
A others1, certain passages from Administrative Law by De Smith
and applicability of the principles of natural justice and came
to hold that as the 1st respondent had remained present
throughout the course of COi and had been given opportunity
to 'cross-examine the witnesses and, therefore, the grievance
B that he was not afforded full opportunity to cross-examine did
not merit consideration. In fact, the tribunal opined that in-depth
cross-examination was allowed to the respondent No. 1 and the
Presiding officer asking for written questions to be submitted,
could be treated as fair and reasonable exercise of discretion
c and hence, there was no illegality or irregularity in the conduct
of the COi.
5. A contention was advanced that after conclusion of the
proceedings by the COi when the report was submitted, certain
documents which were not made available to the said
D respondent were annexed to justify his culpability. The tribunal
found force in the said submission and opined that it was the
duty of the COi to find out the truth by holding suitable
investigation about the documents that were annexed
afterwards. This opinion was formed on scrutiny of the language
E employed in Rule 180 and placing reliance on the dictum in
Uma Nath Pandey and others v. State of U.P. and another2.
This led to the ultimate conclusion that such enclosing of the
documents along with the report by the COi amounted to
violation of Rule .180 inasmuch as the said report was treated
F as the sole basis for initiating the disciplinary proceedings
against the respondent No. 1. It was also held that it would be
difficult for the authority concerned to proceed for hearing on
the point of charge to take into account those documents which
were subsequently annexed, and in all fairness, an Additional
G COi should be convened affording full opportunity to the parties,
by examining .or cross-examining any of the witnesses
pertaining to those annexures.
H 2. AIR 2009 SC 2375.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 509
6. Being of this view the tribunal directed the authority to A
convene an Additional COi limiting to the documents which
were subsequently annexed to the .eport of the COi and
granting liberty to the delinquent officer to cross-examine any
of the witnesses, if produced, pertaining to those documents.
B
7. In pursuance to the aforesaid order, the Additional COi
reassembled and the respondent No. 1 was shown all the
documents and he perused the same, as the proceedings would
reveal, availing considerable length of time. At that stage, he
made a request for grant of permission to cross-examine the C
Technical Members but the same was denied on the ground that
as per Rule 180 he could only cross-examine the witnesses and
not the Members. However; certain other witnesses were
examined and cross-examined in the COi and, eventually, a
report was sent by the Presiding Officer.
D
8. Being grLeved by the said order the respondent No. 1
preferred an Original Application under Section 14 of the
Armed Forces Tribunal Act, 2007 for quashing of the Additional
COi as there had been infraction of Rule 180 and for issue of
appropriate direction for holding a fresh Additional COi with new E
Members who are independent and unbiased and the said
Original Application was transferred to the Regional Bench at
Mumbai where it was registered as TA No. 38/2011. For
claiming such relief heavy reliance was placed on the order
passed on earlier occasion in OA No. 283/2010. ·it was F
contended before the tribunal that Brig. N.S. Ahmed, who was
the earlier Presiding Officer of the COi, had continued as the
Presiding Officer of the Additional COi despite objections
raised by the applicant therein and in spite of the request to
constitute a fresh COi without him. It was highlighted that the G
concerned Brigadier should have been made available for
cross-examination as he was the author of the document, i.e.,
Ext. XLI which was referred to in the order dated 8.10.2010 in
OA No. 283/2010. It was brought to the notice of the tribunal
that in the Additional COi Lt. Col. Sandeep Sinha and Maj. H
510 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Sanjeev Narula were also retained as Technical Members
despite the factum that those two officers were responsible for
preparing the appendices 'N' to 'AB' to Ext. XLIX and on that
ground he had been deprived of the opportunity of cross-
examining them. It was further put forth that the document, vide
B Ext. XXXV, was not shown or allowed for his perusal although
the said document was a complete report making serious
allegations of misappropriation and fraud against the applicant
therein. In essence, the grievance that was agitated before the
tribunal was that certain documents were not supplied and the
c authors of document had become the Members of the
Additional COi. It was also submitted that as the Additional COi
had already submitted the report and the next phase of the
proceedings, i.e., Summary of Evidence was about to be over
the same also deserved to be quashed.
D 9. The said submissions were resisted by the respondents
therein contending that Ext. XU contains the observations of the
Court on the two letters referred to it, i.e., COD, Mumbai letter
No. 2754/Gen/Cont dated 4.8.2008 and DGOS IHQ of MoD
(Army) letter No. PC-2/13357/RI00159/Fin/OS-4(e) dated
E 6.8.2009 and these two letters were earlier perused by
respondent No. 1. Emphasis was laid on the fact that there is
no provision for cross-examination of the Presiding Officer of
the COi on the basis of his observations made in the COi. As
regards the cross-examination of the Technical Members, it
F was opposed on the ground that the Technical Members had
only collated the data which was taken into consideration for
formation of an opinion by the COi and the same was done to
comply with the order passed on the earlier occasion. It was
put forth that Technical Members had only signed the day's
G proceedings and had no role to play in the final opinion
expressed by the COi. That apart, it was stressed that the
Technical Members had been produced as witnesses in
Summary of Evidence and every opportunity had been granted
to the applicant therein to cross-examine them and, therefore,
1.• no prejudice has been caused to him due to their non-
I UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 511
production in the COi for cross-examination. A
10. It was also contended that request of the applicant
therein to cross~examine the authors of the document XU and
XUX was beyond the scope of the Rule and was also not in
accord with the earlier judgment passed on 8.10.2010. It was
8
put forth that Technical Members were allowed only to assist
the Presiding Officer in the proceedings and not allowed to form
any opinion and finding. Their inclusion in the Additional COi
would not vitiate the enquiry as it does not violate the spirit of
Rule 180.
c
11. The tribunal first dealt with the contention relating to
inclusion of Technical Members in the Additional COi. In that
context, it observed that the Technical Members were
undoubtedly involved and connected with the matter being
investigated and since they had submitted their report, it was D
obvious that those members would certainly support their own
report/ documents and it would not be possible for them to
arrive at a different finding than what they had already found
as their personal credibility would be at· stake. Taking note of
this fact.situation and also the factum that the respondent herein E
had raisia.Q his objection at the initial stage pertaining to
inclusion of these officers in the Additional COi, the tribunal
opined that the apprehension expressed by him was well-
founded.
12. After so holding the tribunal proceeded to deal with the F
mandate of Rule 180 and relying on the decision rendered in
Lt. Col Prithi Pal Singh Bedi (supra) and certain other
decisions of the ~ligh Courts came to hold as follows: - '
"...... that the respondents did not produce the maker of G ·
those documents XUX and XU for cross examination by,
the applicant, although he specifically prayed for it which
was also directed in judgment passed in OA 283/2010.
The applicant objected from the very beginning not to
include Brig NS Ahmed and two Technical Members in the H
512 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Addi. COi so that a fair trial can be held and they could be
cross examined by him. But the respondents turned a deaf
ear to such request of the applicant and in fact that has
been done at their own risks. The categorical direction in
the earlier OA 283/2010 dt. 8.10.2010 passed by the
B Principal Bench ·of AFT is that in the additional COi the
petitioner is to be afforded with full opportunities to examine
and cross examine the witnesses pertaining to those
documents. The respondents, could have convened the
additional COi with different members when there are
c various other officers available for holding the additional
inquiry, but they preferred not to do so and in turn creators
of some vital documents were inducted as members
allowing themselves to decide upon the documents created
by them and they being the Members of the inquiry were
not produced for cross examination by the applicant. Such
D
action on the part of the respondents is contrary to fair play
in action."
13. The tribunal observed that as the applicant therein was
not allowed to cross-examine the makers of documents XLIX
E and XU, the respondents therein not only violated the provisions
of Rule 180 but also did not comply with the directions
contained in the earlier judgment passed in OA No. 283/2010.
The tribunal proceeded to state that the contention advanced
by the respondents therein that on reading of Rule 180 it cannot
F be discerned that the Presiding Officer and Technical Member
of the COi were required to be produced as witnesses was
devoid of merit. After so stating the tribunal held that the
respondents therein should not have included Brig. N.S. Ahmad
as Presiding Officer and Lt. Col. Sandeep Sinha and Maj.
G Sanjeev Narula as Technical (ltlembers in the said Additional
COi, for whatever might be the role of the Technical Members,
nonetheless they were Members of the Additional COi and
must have applied their mind while preparing the inquiry report.
14. Being of this opinion, the tribunal concluded that the
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 513
decision rendered by Additional COi was in violation of the A
provisions contained in Rule 180 and, accordingly, set aside
the same and also all consequential actions taken on the basis
of the said Additional COi. It granted liberty to the respondents
. therein to convene a fresh Additional COi with a. different
Presiding Officer and other independent Members. B
15. The centripodal issues that emerge for consideration
are whether the tribunal was justified in holding that the
constitution of the COi which consisted of two Technical
Members and the Presiding Officer was vitiated as there was C
possibility of their having an interest in the proceedings as a
consequence of which being biased or there could be a
perception or likelihood of bias in the decision making prooess
which would raise a doubt pertaining to the decision by a
prudent or rational person; whether the Presiding Officer and
the Technical Members should have been made available for D
cross-examination in a COi to meet the necessary command
of Rule 180 and further regard being had to the earlier order
passed in OA No. 283 of 201 O; and whether there has been
real violation of the principles of natural justice which ultimately
vitiates the proceedings of the Additional COi. E
16. To appreciate the said aspects we shall first proceed
to examine the schematic contents of the Rules in issue and
how they have been understood and interpreted by this Court.
Chapter VI of the Rules provides for COi. Rule 177 deals with F
the Constitution of COi and its role, namely, to collect evidence
and if so required to report with regard to any matter which may
be referred to them. Rule 179 provides the procedure by which
a COi shall be guided.
17. Rule 180 on which the present controversy revolves G
deals with the procedure when character of person subject to
the Act is involved. It is as follows:-
"180. Procedure when character of a person subject
to the Act is involved. - Save in the case of a prisoner H
514 SUPREME COURT REPORTS [2013) 16 S.C.R.
A of war who is still absent whenever any inquiry affects the
character of military reputation of a person subject to the
Act, full opportunity must be afforded to such person of
being present throughout the inquiry and of making any
statement, and of giving any evidence he may wish to
B make or give, and of cross- examining any witness whose
evidence in his opinion, affects his character or military
reputation and producing any witnesses in defence of his
character or military reputation. The presiding officer of the
court spall take such steps as may be necessary to ensure
c that any such person so affected and not previously notified
receives notice of any fully understands his rights, under
this rule." ·
17. Rule 182 stipulates that the proceeding of Courts of
Inquiry or any confession statement or answer to a question
D made or given at a COi shall not. be admissible in evidence
against a person subject to the Act, nor shall any evidence
respecting the proceedings of the court be given against any
such person except upon the trial or such person for willfully
giving false evidence before that court: The proviso to the rule
E states nothing in the said rules shall prevent the proceedings
from being used by the prosecution or the delence for the
purpose of cross-examining any witnesses. Rule 184 which has
been substituted by S.R.O. 44, dated 24th January, 1985 deals
with right of certain persons to copies of statements and
F documents.
18. Rule 180 had come up for consideration in Lt. Col
Prithi P.~I Singh Bedi (supra). In the said case a contention was
advanced that it was obligatory upon the authorities concerned
G to appoint a COi whenever it affects the character or military
reputation of a persons subject to the Act and in such an enquiry
full opportunity must be afforded to such person of being present
throughout the enquiry and of making any statement or giving
any evidence he may wish to make or give and of cross-
H examining any witness whose evidence in his opinion affects
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] .515
the character or miHtary reputation and producing any witness . A
in defence of his character or military reputation. It was further.
urged before the court that on a correct interpretation of Rule
180, it would appear whenever the character of a person subject
to the Act is involved in any inquiry, a COi must be set up.
Repelling the said submission the learned judges opined thus:- B
"Rule 180 does not bear out the submission. It sets up a
stage in tne procedure prescribed for the Courts of inquiry.
Ru1e·1so cannot be construed to me·an that whenever or
wherever in' any inquiry in respect of any person subject
to the Act his character or military reputation is likely to be C
affected setting up of a Court of inquiry is a sine qua non ..
Rule 180 merely makes it obligatory that whenever a Court
of inquiry is set up and in the course of inquiry by the Court
of inquiry character or military reputation· of a person is
likely to be affected then such a person must be given a D
full opportunity to participate in the proceedings of Court·
of inquiry. Court of inquiry by its very nature is likely to
examine certain issues generally concerning a situation or
persons."
E
[Emphasis supplied)
19. Thereafter, the Court dealt with the proceedings where·
the participation of a person is obligatory and where it is not
required. The said delineation is as follows:-
F
"Where collective fine is desired to be imposed, a Court
of inquiry may generaily examine the shortfall to ascertain
how many persons are responsible. In the course of such
an inquiry there may be a distinct possibility of character
or military reputation of a person subject to the Act likely G
to be affected. His participation cannot be avoided on the
specious plea that no specific inquiry was directed against
the person whose character or military reputation is
involved. To ensure that such a person whose character
or military reputation is likely to be affected by the H
!i16 SUPREME COURT REPORTS [2013] 16 S.C.R.
A proceedings of the Court of inquiry should be afforded full
opportunity so that nothing is done at his back and without
opportunity of participation. Rule 180. merely makes an
enabling provision to ensure such participation. But it
cannot be used to say that whenever in any other inquiry
B or an inquiry before a Commanding officer under R. 22 or
a convening officer under Rule 37 of the trial by a court
martial, character or military reputation of the officer
concerned is likely to be affected a prior inquiry by the
Court of inquiry is a sine qua non."
c [Underlining is ours]
20. In Major General lnder Jit Kumar v. Union of India and
others, 3 a two-Judge Bench observed that COi is set up under
Rule 177 to collect evidence and to report, if so required, with
D regard to any matter which may be referred to it. The COi is in
the nature of a fact-finding inquiry committee. The learned
Judges proceeded to state that Army Rule 180 provides, inter
alia, that whenever any inquiry affects the character or military
reputation of a person subject to the Army Act, full opportunity
E must be afforded to such a person of being present throughout
the inquiry and of making any statement, and of giving any
evidence he may wish to make or give, and of cross-examining
any witness whose evidence, in his opinion, affects his
character or military reputation and producing any witnesses
F in defence of his character or military reputation and the
presiding officer of the COi is required to take such steps as
may be necessary to ensure that any such person so affected
receives notice of and fully understands his rights under this rule.
21. In that case the appellant therein was present before
G the COi and witnesses were examined by the COi in his
presence and were offered to him for cross-examination, but
he declined to cross-examine them. In fact, he had moved an
application for adjournment for preparing his defence. He had
H 3. (1997) 9 sec 1.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 517
also applied for the evidence adduced before the COi should A
be reduced to writing. The COi noticed that sufficient time had
been granted to him for preparation of his defence after receipt
of the COi proceedings by him and, accordingly, refused the
application for adjournment. Be it noted, a contention was
advanced that a copy of the report of the COi should be B
provided to him. Dealing with the said aspect, this Court ruled
thus:-
"There is no provision for supplying the accused with a
copy of the report of the Court of Inquiry. The procedure C
relating to a Court of Inquiry and the framing of charges
was examined by this Court in the case of Major G. S.
Sodhi v. Union of lndia 4 • This Court said that the Court of
Inquiry and participation in the Court of Inquiry is at a stage
prior to the trial by court-martial. It is the order of the court-
martial which results in deprivation of liberty and not any D
order directing that a charge be heard or that a summary
of evidence be recorded or that a court-martial be
convened. Principles of natural justice are not attracted to
such a preliminary inquiry. Army Rule 180. however. which
is set out earlier gives adequate protection to the person E
affected even at the stage of the Court of lnguirv. In the
present case, the appellant was given that protection. He
was present at the Court of Inquiry and evidence was
recorded in his presence. He was given an opportunity to
cross-examine witnesses, make a statement or examine F
defence witnesses."
[Emphasis supplied]
22. In Union of India and Others v. Major A. Hussain (IC-
14827)5, Union of India and its functionaries had challenged the G
decision of the High Court which had quashed the court-martial
proceedings including the confirmation of the sentence on the
4. · (1991) 2 sec 3a2.
5, . (1998) 1 sec 537. H
518 SUPREME COURT REPORTS [2013) 16 S.C.R.
A ground that the delinquent officers had denied reasonable
opportunity to defend himself as he was not communicated the
conclusion reached. In the said case the High Court opined that
during the proceeding under Section 22 of the Act, the copies
submitted in earlier COi were not supplied; that he was not given
s assistance of a defending officer of his choice; that he was not
provided a loan which was already sanctioned to engage a new
counsel; and that the documents for which he had made a
request to the convening authority long before assembly of the
court-martial were not provided. This court referred to Rule 180
c and 184 of the Army Rules and various other provisions and in
that context came to hold that the respondent had been unable
to show if there was any non-compliance with the provisions of
Rules 22, 23 and 24 and Army Order No. 70/84. The Court
referred to the decisions in Lt. Col. Prithi Pal Singh Bedi (supra)
Major G. S. Sodhi (supra) and observed that in G. S. Sodhi case
0
this Court with reference to Rules 22 to 25 said that procedural
defects, unless those were vital and substantial, would not affect
the trial. The Court, in the case before it, said that the accused
had duly participated in the proceedings regarding recording
of summary of evidence and that there was no flagrant violation
E of any procedure or provision causing prejudice to the accused.
Thereafter, the learned Judges adverted to the role of COi and
opined thus: -
"Proceedings before a Court of Inquiry are not adversarial
F proceedings and is also not a part of pre-trial investigation.
In Major General lnder Jit Kumar v. Union of India this
Court has held that the Court of lnquir}t is in the nature of
a fact-finding enquiry committee. The appellant in that case
had contended that a copy of the report of the Court of
G
Inquiry was not given to him and that had vitiated the entire
court-martial. He had relied upon Rule 184 in this
connection. With reference to Rule 184, the Court said that
there was no provision for supplying the accused with a
copy of the report of the Court of Inquiry. This Court
considered the judgment in Major G.S. Sodhi case and
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 519
observed that supply of a copy of the report of enquiry to A
the accused was not necessary because proceedings of
the court of inquiry were in the nature of preliminary enquiry
and further that rules of natural justice were not applicable
during the proceedings of the court of inquiry thbugh
adequate protection was given by Rule 180. This Court B
also said that under Rule 177, a court of inquiry can be
set up to collect evidence and to report, if so required, with
regard to any matter which may be referred to it. Rule 177,
therefore, does not mandate that a court of inquiry must
invariably be set up in each and every case prior to c
recording of summary of evidence or convening of a court-
martial."
[Emphasis supplied]
23. The aforesaid authorities, as far as Rule 180 is
concerned, are to the effect that when a COi is set up under D
Rule 177 and during the course of enquiry character or military
reputation of a person is likely to be affected, he should be
granted full opportunity to participate in the proceedings; that
the COi in its very nature is likely to examine certain issues
generally concerning a situation or persons; that his E
participation could not be avoided on a mercurial plea that no
specific enquiry was directed against the person whose
character or military reputation is involved; that the concerned
person shall be afforded full opportunity so that nothing is done
at his back and without opportunity of participation; that it is the F
command of the said provision to ensure such participation;
that it not a condition precedent to always hold that a COi for
proceeding a trial by court martial where character or military
reputation of the officer concerned is likely to be affected; that
the COi is in the nature of a fact finding enquiry committee; that G
the participation in a COi is at a stage prior to the trial by court
martial; that the said rule gives adequate protection to the
person affected at the stage of COi and there is no provision
for supplying the accused with a copy of the report of the COi;
· and that the proceedings before a COi are not adversarial H
proceedings.
520 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 24. Keeping in view the aforesaid principles which have-
been laid down by this Court, we are required to scrutinise.-
whether the tribunal has appositely applied the principles in
quashing the Additional COi including its composition. To
appreciate the said position we think it necessary to refer to
B the earlier order passed by the tribunal. In the earlier decision,
the tribunal took note of the fact that COi while submitting the
Report had annexed certain documents and the said
documents were produced in a tabular chart which is as
follows:-
c "
EXHIBIT NO. LEITER NO. AND DATE REMARKS
1 XLIX including Still not
all appendices shown/
given to
D aoolicant
2. LXIX CMM Jabalpur Letter No. -
126/CUHQ dt 05 Nov
2009
3 L Still not
E shown/
given to
applicant
4 LXVlll -Do-
5. xxxv -Do-
F
6. XU -Do-
7. LV -Do-
8. ZXVI (a) FOO Lr No.50060/
Tfc/X/ dt. 30 Nov 2009
G (b) 22 ABOD Lr.No.
C/1224/499/Tfc dt. 01
Dec 2009
(c) FOO Lr. No. G3334/
PC/Tfc dt 30 Nov 2009
H II
UNION OF !NOIA v. SANJAY JETH! [DIPAK MISRA, J.] 521
25. Thereafter, the tribunal appreciating the submissions A
1eld thus:-
"As has clearly been stated in AR 180, a fair opportunity
is to be afforded to an individual whose character and
military reputation is involved. In this case, the documents 8
were not given to the applicant warranting judicial review
by this Tribunal. We find that the mandatory procedure
under AR 180 was not followed by the respondents with
regard to those documents which were subsequently
annexed to the report. Therefore, that portion of the report, C
which deals with the conduct and reputation of the applicant
without giving him an opportunity of being heard in the
inquiry, should be taken to be vitiated for violation of AR
180. It is true that the report of the COi has no legal force
proprio vigore. But, however, it is seen in this case that
the findings rendered by the COi have been taken as the D
sole basis for initiating disciplinary proceedings against
the applicant. In these circumstances, the applicant is
entitled to put forward his grievance that the COi has given
findings regarding his conduct without giving him an
opportunity to put forward his defence as regards those E
annexures: the applicant was obviously not afforded
opportunity to see the documents which were annexed to
the report of COi. It would be difficult for the authority
concerned to proceed for hearing on the point of charge
to take into account those documents which were F
subsequently annexed. In all fairness, an additional COi is
to be convened affording full opportunity to the parties, by
examining or cross examining any of the witnesses
pertaining to those annexures. The additional COi would
remain confined to the annexures referred to above." G
[Underlining is ours]
26. After so holding, the tribunal directed the concerned
authority to pass orders convening an Additional COi limiting
H
522 SUPREME COURT REPORTS [2013] 16 S.C.R.
A to the documents which were subsequently annexed to the
report of the COi and the applicant was granted liberty to cross
examine any of the witnesses, if produced, pertaining to those
documents.
27. We may note here with profit that the aforesaid order
8
was not assailed by the Union of India and its functionaries.
28. We have referred to the earlier order in extensor
despite the same having gone unchallenged, for it is submitted
by Mr. Kuhad, learned Additional Solicitor General, that the said
C order has to be understood in the backdrop of the fact situation.
There can be no trace of doubt that the tribunal had passed
directions to the limited extent, but it had specified the
documents and directed for full grant of opportunity to the
delinquent officer.
D
29. At this juncture, we may refer to the analysis made by
the tribunal in the impugned judgment while setting aside the
Additional COi. On a scrutiny of the impugned judgment of the
tribunal, four reasons. namely, (i) that though the tribunal vide
E its earlier judgment dated 8.1D.2010 had directed the witnesses
concerned with the annexures which were brought on record
before the COi were to be made available for cross-
examination, the said witnesses like the makers of the
documents XL! and XLIX were not made subject to cross-
examinatipn by the delinquen_t officer; (ii) that though the
F inclusi0n of the Presiding Officer in the COi had been objected
to on earlier oceasion, he was allowed to continue and was not
changed; (iii) that in spite of the TechniCal Members had
prepared and arranged the documents which would mean that
they had expressed an opinion at an earlier stage, yet they were
G retained as Members of the COi as a consequence of which
the principles of natural justice were violated, for one cannot
be the judge in his own cause; and (iv) that the doctrine of bias
comes into play as the Presiding Officer as well as the Technical
Members would have a tendency to support their own reports/
H documents and it is against the spirit of Rule 180. In essence,'
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 523
what has really weighed with the tribunal while passing the A
impugned order is that such members constituted the COi who
were biased or reasoned to be biased and such bias is
discernible. To appreciate the said facet of reasoning it is
necessary to understand when the doctrine of bias really comes
into play, for bias is an insegregable facet of the concept of B
natural justice as a genus. The fundamental principles of natural
justice are ingrained in the decision making process to prevent
miscarriage of justice. It is applicable to administrative enquiries
and administrative proceedings as has been held in A.K.
Kraipak v. Union of lndia 6 . It is also fundamental facet of c
principle of natural justice that in the case of quasi-judicial
proceeding the authority empowered to decide a dispute
between the contesting parties has to be free from bias. When
free from bias is mentioned, it means there should be absence
of conscious or unconscious prejudice to either of the parties
0
and the said principle has been laid down in Gul/apalli
Nageswara Rao v. Andhra Pradesh State Road Transport
Corporation and others7 , Gul/appalli Nageswarrao v. State of
A.P. and others8 and Dr. G. Sarana v. University of Lucknow
and others9 .
E
10
30. In Manak Lal v. Dr. Prem Chand Singhvi and others
the Court has stated thus: -
"It is well settled that every member of a tribunal that is
called upon to try issues in judicial or quasi-judicial F
proceedings must be able to act judicially; and it is of the
essence of judicial decisions and judicial administration
that judges should be able to act impartially, objectively and
without any bias. In such cases the test is not whether in
G
6. (1969) 2 sec 262.
7. AIR 1959 SC 308.
8. AIR 1959 SC 1376.
9. (1976) 3 sec 585.
10. AIR 1957 SC 425. H
524 SUPREME COURT REPORTS [2013] 16 S.C.R.
A fact a bias has affected the judgment; the test always is
and must be whether a litigant could reasonably apprehend
that a bias attributable to a member of the tribunal might
have operated against him in the final decision of the
tribunal. It is in this sense that it is often said that justice
B must not only be done but must also appear to be done."
31. In Dr. G. Sarana (supra). the learned Judges referred
to the Principles of Administrative Law by J.A.C. Griffith and
H. Street (Fourth Edition), and observed that the position with
regard to bias has been aptly and succinctly stated thus:
c
"The prohibition or bias strikes against factors which may
improperly influence a judge in deciding in favour of one
party. The first of the three disabling types of bias is bias
on the subject-matter. Only rarely will this bias invalidate
D proceedings. "A mere general interest in the general
object to be pursued would not disqualify," said Field J.,
. holding that a Magistrate who subscribed to the Royal
Society for the Prevention of Cruelty to Animals was not
thereby disabled from trying a charge b~ought by that body
E of cruelty to a horse. There must be some direct connection
with the litigation. If there is such prejudice on the subject-
matter that the court has reached fixed and unalterable
conclusions not founded on reason or understanding, so
that there is not a fair hearing, that is bias of which the
F courts will take account, as where a justice announced his
intention of convicting anyone coming before him on a
charge of supplying liquor after the permitted hours ...
Secondly, a pecuniary interest, however, slight will
disqualify, even though it is not proved that the decision is
G in any way affected.
The 'third type of bias is personal bias. A judge may be a
relative, friend or business associate of a party, or he may
be personally hostile as a result of events happening either
H before or during the course of a trial. The courts have not
UNION OF INDIA v. SANJAY JETHI [OIPAK MISRA, J.] 525
been consistent in laying down when bias of this type will A
invalidate a hearing. The House of Lords in Frame United
Breweries v. Bath Justices 11 approved an earlier test of
whether "there is a real likelih0ud of bias." The House of
Lords has since approved a dictum of Lord Hewart that
"justice should not only be done, but should manifestly and B
undoubted.ly be seen to be done" although it did not
mention another test suggested by him in the same
judgment: Nothing is to be done which creates even a
suspicion that there has been an improper ihterference
with the course of justice." c
32. Eventually in the said decision it has been ruled that
what has to be seen in a case where there is an allegation of
bias in respect of a member of an administrative board or body
is wheth.er there is a reasonable ground for believing that he
was likely to have been biased. In other words, whether there D
is substantial possibility of bias animating the mind of the
member against the aggrieved party.
33. At this juncture, we may refer with profit to Halsbury's
Laws of England, Fourth Edition, Volume 2, paragraph 551, E
where it has been observed: -
"The test for bias is whether a reasonable intelligent man,
fully appraised of all the circumstances, would feel a
serious apprehension of bias". 12
F
34. In Secretary to Government, Transport Deptt., Madras
v. Munuswamy Mudaliar and another13, while dealing with the
concept of bias as a part of natural Justice, the Court observed
that a predisposition to decide for or against one party, without
proper regard to the true merits of the dispute is bias. There G
must be reasonable apprehension of that predisposition. The
11. 1926 AC 586.
12. R v. Moore, ex parte Brooks (1969] 2 OR 677, 6 DLR (3d) 465.
13. 1988 (Supp) sec 651. H
526 SUPREME COURT REPORTS [2013] 16 S.C.R.
A reasonable apprehension must be based on cogent materials.
Needless to say, personal bias is one of the limbs of bias,
namely, pecuniary bias, personal bias and official bias.
35. In Kumaon Manda! Vikas Nigam Ltd. v. Girja Shankar
Pant and others14 , the Court referred to a passage from the
8
view expressed by Mathew, J. in S. Parthasarathi v. State of
Andhra Pradesh 15 : - ·
"16. The tests of 'real likelihood' and 'reasonable
suspicion' are really inconsistent with each other. We think
C that the reviewing authority must make a determination on
the basis of the whole evidence before it, whether a
reasonable man would in the circumstances infer that there
is real likelihood of bias. The court must look at the
impression which other people have. This follows from the
D principle that justice must not only be done but seen to be
done. If right-minded persons would think that there is real
likelihood of bias on the part of an inquiring officer, he must
not conduct the inquiry; nevertheless, there must be a real
likelihood of bias. Surmise or conjecture would not be
E enough. There must exist circumstances from which
reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent.
The court will not inquire whether he was really prejudiced.
If a reasonable man would think on the basis of the existing
F circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision [see per Lord Denning,
M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon 16 (WLR at p. 707]."
36. Thereafter, the two-Judge Bench referred to the
G decision in Franklin v. Minister of Town and Country Planning 17
and the sounding of a different note and the dilution of the
14. (2001) 1 sec 182.
15. (1974) 3 sec 459.
16. (1968) 3 WLR 694.
H 17 1948 AC 87.
UNION OF INDIA v: SANJAY JETHI [DIPAK MISRA, J.) 527
principle by English Courts in R. v. Bow Street Metropolitan A
Stipendiary Magistrate, ex pPinochet Ugarte (No. 2) 18 and ,the
view expressed by Lord Hutton in the said case and thereafter
proceeded to analyse the doctrine p; upounded in Locabail
[Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. 19 where the
Court of Appeal had upon detailed analysis of the decision in B
R. v. Gough 20 together with Dimes case21 , Pinochet case
(supra) as aiso Ebner, Re 22 . and the decision of the
Constitutional Court of South Africa in President of the
Republic of South Africa v. South African Rugby Football
Union 23 opined that it would be rather dangerous and futile to c
attempt to define or list the factors which may or may not give
rise to a real danger of bias. The learned Judges took note of
the fact that the Court of Appeal continued to give effect that
everything will depend upon facts which may include the nature
of the issue to be decided. Eventually, this Court ruled thus: - .
0
"The test, therefore, is as to whether a mere apprehension
of bias or there being a real danger of bias and it is on
this score that the surrounding circumstances must and
ought to be collated and necessary conclusion drawn
therefrom - in the event however the conclusion is E
otherwise inescapable that there is existing a real danger
of bias, the administrative action cannot be sustained: If
on the other hand,· the allegations pertaining to bias is
rather fanciful and otherwise to avoid a particular court,
Tribunal or authority, question of declaring them to be F
unsustainable would not arise. The requirement is
availability of positive and cogent evidence and it is in this
context that we do record our concurrence with the view
expressed by the Court of Appeal in Locabailcase."
18. (2000) 1 AC 119. G
19. 2000 QB 451.
20. 1993 AC 646.
21. 3 House of Lords Cases 759.
22. (1999) 161 ALR 55.
23. (1999) 4 SA 147. H
528 SUPREME COURT REPORTS [2013] 16 S.C.R.
A [Emphasis supplied)
37. In G.N. Nayak v. Goa University and others2 4 it has
been laid down that it is not every kind of bias which in law is
taken to vitiate an act. It must be a prejudice which is not
B founded on reason, and actuated by self-interest - whether
pecuniary or personal. Because of this element of personal
interest, bias is also seen as an extension of the principles of
natural justice that no man should be a judge in his own cause.
Being a state of mind, a bias is sometimes impossible to
determine. Therefore, the courts have evolved the principle that
C it is sufficient for a litigant to successfully impugn an action by
establishing a reasonable possibility of bias or proving
circumstances from which the operation of influences affecting
a fair assessment of the merits bf the case can be inferred.
D 38. In Delhi Financial Corpn. and another v. Rajiv Anand
and others, 25 while dealing with the concept of doctrine that "no
man can be a judge in his own cause", the Court opined that
the said principle can be applied only in two cases where the
person concerned has a personal interest or has himself
E already done some act or taken a decision in the matter
concerned. The Court further observed that an officer of a
statutory corporation has been appointed as an authority, does
not by itself bring the said doctrine into operation. The learned
Judges further proceeded to state that in individual cases bias
F may be shown against a particular person but in the absence
of any proof of personal bias or connection merely because
officers of a particular corporation are named as the authority
does not mean that those officers would be biased. Unless the
officer concerned is personally interested question of bias or
G conflict between his interest and his duty would not arise.
39. In Chandra Kumar Chopra v. Union of India and
24. (2002) 2 sec ?12.
H 25. (2004) 11 sec 625.
•
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 529
others2 6 it has been held that mere suspicion or apprehension A
is not good enough to entertain a plea of bias. It cannot be a
facet of one's imagination. It must be in accord with the
prudence of a reasonable man. The circumstances brought on
record should show that it can create an impression in the mind
of a reasonable man that there is real likelihood of bias. It is B
not to be forgotten that in a democratic polity, justice in its
conceptual eventuality and inherent quintessentiality forms the
bedrock of good governance. In a democratic system. that is
governed by the rule of law, fairness of action, propriety,
reasonability, institutional impeccability and non-biased justice c
delivery system constitute the pillqrs on which its survival
remains in continuum. The plea of bias it is to be scrutinised
on the basis of material brought on record whether someone
makes wild, irrelevant and imaginary allegations to frustrate a
trial or it is in consonance with the thinking of~ reasonable man 0
which can meet the test of real likelihood of bias. The principle
cannot be attracted in vacuum.
40. In State of Gujarat and another v. Justice R.A. Mehta
(Retired) and others, 27 a two-Judge Bench dealing with "bias"
has observed thus: - E·
"Bias is one of the limbs of natural justice. The doctrine of
bias emerges from the legal maxim nemo debet esse
judex in propria causa. It applies only when the interest
'
attributed to an individual is such so as to tempt him to F
make a decision in favour of, or to further his own cause.
There may not be a case of actual bias, or an
apprehension to the effect that the matter most certainly
will not be decided or dealt with impartially but where the1
circumstances are such so as to create a reasonable G
apprehension in the minds of others that there is &
likelihood of bias affecting the decision, the same is
sufficient to invoke the doctrine of bias."
26. (2012) 6 sec 369.
21. (2013) 3 sec 1. H
530 SUPREME COURT REPORTS [2013] 16 S.C.R.
A
41. In the said case, it has been further observed that in
the event that actual proof of prejudice is available, the same
will naturally make the case of a party much stronger, but the
availability of such proof is not a necessary precondition, for
8 what is relevant, is actually the reasonableness of the
apprehension in this regard in the mind of such party. In case
such apprehension exists the trial/judgment/order, etc. would
stand vitiated for want of impartiality and such judgment/order
becomes a nullity. The trial becomes coram non Judice.
C 42. At this juncture, we think it apt to refer to the
pronouncements in Ranjit Thakur v. Union of India and
others26 and Major G. S. Sodhi v. Union of lndia 29 . In Ranjit
Thakurs case the Court was dealing with justifiability of an order
of dismissal passed by the summary court martial of which one
D of the members was the respondent No. 4 therein. The said
respondent had sentenced the appellant ~o suffer sentence of
28 days rigorous ·imp,isonment for violating the norms for
representation to higher authorities and the representation that
was sent to the higher authorities pertained to the ill-treatment
E at the hands of the respondent No. 4. Keeping the said factual
backdrop in view the Court referred to the procedural
safeguards provided under Section 130 of the Act and opined
that the proceedings of summary court martial was infirm in law.
Thereafter, the learned Judges proceeded to deal with the
F second limb of arguments also. It relate9 to bias on the part of
the respondent No. 4 therein. In that context, the Court observed
as follows: -
"16. It is the essence of a judgment that it is made after
due observance of the judicial process; that the court or
G tribunal passing it observes, at least the minimum
requirements of natural justice; is composed of impartial
28. (1987) 4 sec s11.
H 29. (1991) 2 sec 382.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 531
persons acting fairly and without bias and in good faith. A A
judgment which is the result of bias or want of impartiality
is a nullity and the trial "coram non-judice". ·(See
Vassi/iades v. Vassiliades 30 )" .
· 43. The Cou·rt referred to the decisions in Allinson v. B
General Council of Medical Education and Registratiori31 ,
Metropolitan Properties Co. -(F. G. C.) Ltd. v. Lannon 32, Public
Utilities Commission of the District of Columbia v. Pollak33
and Regina v. Liverpool City Justices, ex parte Topping 34 and,
eventually, conclud_ed that the inescapable conclusion was that C
the participation of respondent No. 4 had rendered the court-
martial proceedings coram non-judice.
44." In Major G. S. Sodhi (supra), the Court did not accept
the alleged plea of bias or mala fide as Lt. Col. S.K. Maini, who 0
had ordered summary of evidence against the petitioner therein,
was inimical towards him because of certain prior incidents. It
was also alleged that he had not acceded to certain requests
made by the petitioner during the inquiry. The Court did not
accept the same on the ground that the respondent Lt. Col. S.K.
Maini was only concerned with the preliminary inquiry and it was E
for the court martial to try the case and give its verdict and mere
)!legation of bias and mala fide against him did not affect the
court martial proceedings. That apart, the Court observed that
the allegations against the said Maini had not been really
!?Ubstantiated and even they are perceived from the point of F
view of the petitioner therein, it could not be held that it was
not reasonable on his part to apprehend that the said officer
would act in a biased and partisan manner. Emphasis .was laid
G
30. AIR 1945 PC 38.
31. (1894) 1 ps 750, 758-59 .
. 32. (1969) 1 QB 577, 599.
33. 343 US 451, 466-67 : 96 L ed 1068, 1079.
34. (1983) 1 WLR 119 : (1983) 1 ALL ER 490, 494. H
532 SUPREME COURT REPORTS [2013] 16 S.C.R.
A on the fact that he was only responsible for holding a preliminary
enquiry.
45. The principle that can be culled out from the number
of authorities fundamentally is that the question of bias would
arise depending on the facts and circumstances of the case. It
8
cannot be an imaginary one or come into existence by an
individual's perception based on figment of imagination. Whi!e
dealing with the plea of bias advanced by the delinquent officer
or an accused a court or tribunal is required to adopt a rational
approach keeping in view the basic concept of legitimacy of
C interdiction in such matters, for the challenge of bias, when
sustained, makes the whole proceeding or order a nullity, the
same being coram non-Judice. One has to keep oneself alive
to the relevant aspects while accepting the plea of bias. It is to
be kept in mind that what is relevant is actually the
D reasonableness of the apprehension in this regard in the mind
of such a party or an impression would go that the decision is
dented and affected by bias. To adjudge the attractability of plea
of bias a tribunal or a court is required to adopt a deliberative
and logical thinking based on the acceptable touchstone and
E parameters for testing such a plea and not to be guided or
moved by emotions or for that matter by one's individual
perception or misguided intuition.
46. Keeping in view the principles laid down in the
F aforesaid precedents and how this Court has understood and
dealt with the plea of bias, the case at hand is to be
appreciated in its factual backdrop whether there has been
"really likelihood of bias". In a COi participation of a delinquent
officer whose character or military reputation is likely to be
G affected is a categorical imperative. The participation has to
be meaningful, effective and he has to be afforded adequate
opportunity. It needs no special emphasis to state that Rule 180
is framed under the Army Act and it has the statutory colour and
flavour. It has the binding effect on the COi. The Rule provides
for procedural safeguards regard being had to the fact that a
H
UNION OF INDIA v. SANJAY JETH! [DIPAK MISRA, J.] 533
person whose character and military reputation is likely to be A
affected is in a position to offer his explanation and in the
ultimate eventuate may not be required to face disciplinary
action. Thus understood, the language employed in the Rule 1
180 lays postulates of a fair, just and reasonable delineation.
It is the duty of the authorities to ensure that there is proper B
notice to the person concerned and he is given opportunity to
cross-examine the witnesses and,· most importantly, nothing
should take place behind his back. It is one thing to say that
the COi may not always be essential or sine qua non for
initiation of a court martial but the another spectrum is once the c
authority has exercised the power to hold such an inquiry and
the COi has recommended for disciplinary action, then the
recommendation of the COi is subject to judicial review. While
exercising the power of judicial review it becomes obligatory
to see whether there has been due compliance of the stipulates
0
prescribed under the Rule, for the language employed in the
said Rule is absolutely clear and unambiguous. We may not
dwell upon the concept of "full opportunity" in detail. Suffice it
to say that one cannot stretch the s·aid concept at infinitum on
the bedrock of grant of opportunity and fair play. It has to be E
tested on the touchstone of fac.tual matrix of each case.
47. Coming to the case at hand, we are obliged to state
that initially the COi was constituted by three members by order
dated 22.7.2009 and it was asked to investigate certain
issues. The relevant part of the said order reads thus: - F
"(a) Pers involved incorrupt practice of submitting
inflated claims to PCDA in connivance with Tpt
Firms with Spl ref to Kaushik Tpt Pvt ltd.
(b) Hiring vehs of lower tonnage and submitting bills for G
hiring of higher tonnages.
(c) The misappropriation in dispatch of stores to Ord
Depot."
H
534 SUPREME COURT REPORTS (2013] 16 S.C.R.
A The composition of the Board of Officers were as under: -
(a) Presiding Offr Brig NS Ahamed, CSO, HQ
MG & G Area.
(b) Members 1. Col RV Desai, Jt. Dir DSC
B Mumbai Sub Area.
2. Lt. Col Sandeep Sinha,
OC 53 Coy ASC (Sup).
C 48. Thereafter, an amendment was brought regarding
composition of the COi vide order dated 28.7.2009. It reads
as follows: -
'The following amdts will be made in our above convening
order at Para 2: -
D
For Presiding Offr - Brig NS Ahamed, CSO,
HQ MG & G Area
Members 1. Col. RV Desai, Jt Dir
DSC Mumbai Sub Area
E
2. Lt Col Sandeep Sinha, OC 53 Coy ACS (Supply)
Read Presiding Offr - Brig NS Ahamed, CSO,
HQ MG & G Area
F Members 1. Col. RV Desai, Jt Dir
DSC Mumbai.Sub Area
2. Col RG Laxman, SO(ECHS) HQ Mumbai Sub Area
G Technical Members 1. Lt Col Sandeep Sinha
OC 53 Coy ASC (Supply)
2. Maj Sanjeev Narula,
Stn Wksp EME, Mumbai"
H
UNION OF INDIA v. SANJAY JETH! [OlPAK MISRA, J.] 535
49. It is submitted by Mr. Ku had, learned ASG, appearing A
for the appellants, that the Technical Members had only
compiled and collated the documents and for such an act they
cannot be disqualified to function as Members. It is also urged
by him that the said Members only signed the day-to-day
proceedings but were not signatories to the final report that was B
submitted through the officer who convened the COi. In this
context we may refer to what has been recorded on 11.2.2011
by the Additional COi: -
"In deference to 1 the directions given by Hon'ble Armed
Forces Tribunal Principal bench, New Delhi dated 08 Oct C
2010, the following exhibits namely exhibit XLIX, exhibit
LXIX, exhibit L, exhibit LXVlll, exhibit XXXV, exhibit XU,
exhibit LV, exhibit LXVI are available for perusal. It is
clarified that exhibit XLIX named as technical report
containing Appces A to M, the documents produced at the D
initial Court of Inquiry and which have already been
perused by all the witnesses under AR 180 and for easy
reference these documents have been compiled in one
place marked as Appces A to M of exhibit XLIX. The
balance of exhibit XLIX, the technical report forming part E
of Appces N to AB and extract to Appx N is the collation
of information in various formats as per headings given in
these Appces from the information available in the Appces
A to M of exhibits XLIX.
F
The court has -requested the convening authority HQ MG
& G Area to intimate details of documents, copies of Court
of Inquiry and exhibits handed over to the witnesses if any
during the interim period i.e. 06 Dec 2009 to 07 Feb 2011,
vide Presiding Officer HQ MG & G Area (Sigs) l~tter No. G
PC-0604/CHT/COD/Addl C of I dated 09 Feb 2011 a'nd
the letter is read over. The copy of the letter is attached
as exhibit 1."
50. It is not in dispute that the respondent No. 1 perused
all the documents and objected to the presence of the Technical H
536 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Members, namely, Lt. Col. Sandeep Sinha and Maj. Sanjeev
Narula in the Additional COi proceedings. On 17.2.2011 the
Additional COi clarified that Ext. XLIX comprised Of appendices
as brought about by the court at paragraph 5 of the Additional
COi proceedings dated 11.2.2011. At that juncture, the said
B respondent gave a list of his witnesses. On 24.2.2011 the
respondent No. 1 made a prayer to cross-examine the
Members of the COi but the said prayer was declined. It is
contended by Mr. Kuhad that neither the examination nor the
cross-examination of the Presiding Officer and the Members
c of the COi can be spelt out from the language of Rule 180 as
they are not witnesses. We find force in the said submission
of the learned senior counsel and hold that neither the Presiding
Officer nor the Technical Members of the COi could be made
available for cross-examination before the COi.
D 51. The core of controversy, as we notice, is the inclusion
of the Technical Members and the Presiding Officer in the COi.
As has been state.d earlier, the respondent raised the plea of
bias against the Technical Members and had objected to the
inclusion of Brig. N.S. Ahamed as Presiding Officer. To
E appreciate the fulcrum of the controversy, we are required to
see the role played by the Technical Members at an earlier
stage, for it was repeatedly stated before us that they had only
compiled the documents. A mere compilation or pagination or
for that matter an arrangement of documents may not be an act
F to compel someone from recusing from a case. He may not
be disqualified to be a part of a COi. But on a perusal of the
Ext. XLIX we find that it is a "Technical Report" prepared by the
two Technical Members. At the beginning it has been stated
"Technical Report : Staff C of I". Thereafter it has been
G mentioned therein that documents in custody of the court were
perused for arriving at the technical inputs. The Members have
listed the important documents, stated about the methodology
they were going to adopt and have given the input which have
been brought on record as appendices 'N' to 'Z'. After giving
H the inputs the members have given their observations stating
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 537
that during the course of scrutiny of documents they hav~ A
observed many financial irregularities. The observations are
from paragraph 5(a) to (m). Para 6 deals with inferences and
describes the part, namely, "Anomaly along with Inference". The
same includes (a) variation between Tonnage mentioned in
gate register and bills, (b) variation of CHT Tonnage between B
Traffic Branch Office copy of consignment note (Bilti) and Bills
with financial loss, (c) transshipment details as per office copy
of Convoy Note in Traffic Branch and receipted copies of
Convoy Note and input, from Consignee Units, (d) Same CHT
billed for different tonnages with financial loss, (e) same CHT c
being hired within close period, (f) variation in billed tonnage
of CHTs vis-a-vis actual tonnage as per list given by Kaushik
Transport with tender documents with financial loss, (g) CHT
billed but date record at variance in Gate Register with respect
to reporting and utilization of vehicle note, (h) dispatch to same 0
places in consecutive days amounting to splitting of transaction,
(i) variation between actual utilization and the CFA sanction,
and(k) preliminary inquiry at COD Malad. On a bare perusal of
the same one can easily say that the Technical Members have
expressed their opinion after analysis of the documents. They E
have, in detail, scrutinized the documents, drawn their
inferences and made their observations. This document has
been marked as Ext. XLIX. By no stretc:;h of imagination it can
be said that it is an arrangement of documents or pagination
of documents. True it is, they are not the authors of the original
documents but their analysis and inference have been used F
against the respondent in the earlier COi and in the Additional
COi. It cannot be brushed aside by saying that Technical
Members did not sign the final report. Once they have given
an opinion, the possibility to support the same cannot be totally
discarded. That is where the real likelihood of bias comes into G
play. As has been stated in number of authorities which we
have reproduced hereinbefore if one has something substantial,
relevant or material to do with the case he is disqualified. In
the case at hand, we find that the Technical Members had
compiled the documents, adopted the methodology, made H
538 SUPREME COURT REPORTS [2013] 16 S.C.R.
A observations, drawn inferences and expressed the view and,
above all, they had prepared the report which has been brought
on record as a document. To say, they had not played any role
would tantamount to blinking at reality. In our considered view,
their inclusion as the Technical Members is not legally
B permissible. It is so as the said respondent is bound to be
prejudiced. In this context, we may reproduce a passage from
State v. N.S. Gnaneswaran 35 :
"12. The issue also requires to be examined on the
touchstone of doctrine of prejudice. Thus, unless in a given
c situation, the aggrieved makes out a case of prejudice or
injustice, some infraction of law would not vitiate the order/
enquiry/result. In judging a question of prejudice, the
court must act with a broad vision and took to the
substance and not to technicalities. (Vide: Jankinath
D Sarangi i/. State of Orissa 36 , State of U.P. v. Shatrughan
L.a/3 7 , State of A.P. v. Thakkidiram Reddy38 and Debotosh
Pal Choudhury v. Punjab National Bank39 .)"
52. Even applying the rigorous substantive test, we find that
E a case of prejudice comes fnto full play in the case at hand.
53. Presently we shall advert to the inclusion of Brig. N.S.
°Ahamed. In the earlier order dated 8.10.2010 the tribunal had
referred to Ext. XU to be made available to the respondent. The
F learned senior counsel for the appellants has filed the Ext. XU
befom us. The same has be~n prepared by the Presiding
Officer. It reads as follows: -
"On sample perusal of file No. 2751 IGen/18/ Cont of
Central Ordnance Depot, Mumbai, it is observed by the
G
35. (2013) 3 sec 594.
36. (1969) 3 sec 392.
37. (1998) 6 sec 651.
38. c1 !198) 6 sec 554.
H 39. c2002) 8 sec 68.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 539
Court that recommended distribution of stores has been A
fwd to DGOS by Central Ordnance Depot, Mumbai. The
approval is accorded by DGOS which may or may not be
the same as recommended by Central Ordnance Depot,
Mumbai. A photocopy of Central Ordnance Depot letter
No. 2754/Gen/Cont. Dt. 04 Aug 2008 found from OGOS B
and approval letter of the same IHQ. MOD, MGO letter No.
PC 2 to 13357/R1 001519/ Fin/OS-46 dt. 06Aug 09, this
approval is only for issue of items and not dispatch is
enclosed as Exhibit XU."
54. To.the said observation/report two letters have been
c
annexed - one written by Rishab Paliwal, Capt., Control Officer,
for Commandant, and another by P. Krishna Kumar, SCSO, Jt
Dir OS-4E, for Dir Gen Ord Services. On a scrutiny of the same
it cannot be said that it pertained to the proceedings before
the COi. In fact, on earlier occasion the tribunal had taken D
exception to the fact that the said documents were not given
to the 1st respondent. No doubt, thereafter he had been
allowed to peruse the same but he is entitled to explain the
same, more so, when a view has been expressed in the
document. Mr. Kuhad would contend that the Summary of E
Evidence had commenced and a number of witnesses,
including the Technical Members, have been examined and
they have also been cross_-examined by the· 1st respondent. Be
it noted, this Court, while issuing notice and directing stay of
.the proceedings of the order passed by the tribunal had F
permitted the appellants to proceed and further proceedings
were made subject to the result of the final decision· of the
appeal. We are compelled to repeat here that once a COi has
been constituted to inquire· into the allegations relating to a
person's character and military reputation subject to the Act it G
should not be done by the persons who have expressed their
views in writing behind the back of the person and assume the
role of the recommending authority which is statutory in nature
to take disciplinary action. Law does not countenance the
same. In the present case it is irrefragably clear that the H
540 SUPREME COURT REPORTS [2013] 16 S.C.R.
A recommendation of the COi was the sole basis on which the
disciplinary action has been initiated. Nothing else had come
on record as observed by the tribunal on earlier occasion as
well as by the impugned order and the said finding is
unassailable. That being the position, we find in fitness of things,
B the Presiding Officer should have recused himself to preside
over the COi. However, we must make it clear that on earlier
occasion the tribunal had not quashed the entire proceedings
and the same was not challenged by either of the parties.
Therefore, the Additional COi which has been directed by the
c tribunal by the impugned judgment, shall only function as an
Additional COi and deal with the documents which were
produced earlier before the tribunal in a tabular chart to which
we have referred to hereinbefore.
55. At this juncture, we think it is necessary to observe that
D the respondent No. 1 at one point of_ time had filed a long list
of witnesses. It is to be borne in mind that on the earlier
occasion the tribunal permitted for examination or cross-
examination of witnesses who had something to do with the
documents. The Additional COi shall keep that in view so that
E there is no procrastination of the proceedings at the behest of
the delinquent officer, for natural justice has also its own
limJtations. It can be allowed to· become an unruly horse.
56. Before parting with the case, we think and we are
F constrained to think that we should say something about the
order of the tribunal. ·section 14 of th~ Armed .Forces Tribunal
Act, 2007 occurs in Chapter Ill of the said Act and deals with
jurisdiction,. powers and au-thority of the tr~bunal ·in service
matters. Under sub-section (5) of Section 14 the tribunal is
G required to decide both questions of law and facts that may be
raised before it. The respondent had approached the tribunal
under Section 14 of the said Act. In the Statement of Objects
and Reasons it has been spelt out for constituting an Armed
Forces Tribunal for adjudication of complaints and disputes
regarding sef"Vice matters and appeals arising out of the
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 541
verdicts of the court martial to provide for quicker and less A
expensive justice to the members of the said armed forces of
the Union. The Preamble of the Act provides for adjudication
or trial by the tribunal of justice anu compliance in respect of
many a matter. As we find the tribunal has been conferred
powers to deal with the cases in promptitude. Promptitude B
does not ostracize or drives away the apposite exposition of
facts and necessary ratiocination. A seemly depiction of factual
score, succinct analysis of facts and law, pertinent and cogent
reasoning in support of the view expressed having due regard
to the rational methodology, in our considered opinion, are c
imperative. We have said so as we find that the tribunal by the
impugned order has not adverted to the necessitous facts. We
say so despite sustaining the verdict.
57. Ex consequenti, the appeal, being sans merit, stands
dismissed
'
leaving the parties to bear' their own costs.
/
D
Bibhuti Bhushan Bose Appeal dismissed.
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