SHARAFA THUSSAIN ABDULRAHAMAN SHAIKH AND ORS.versusSTATE OF GUJARAT AND ANR.

A     SHARAFA THUSSAIN ABDULRAHAMAN SHAIKH AND ORS.
                                         v.
                       STATE OF GUJARAT AND ANR.

                              NOVEMBER 22, 1996

B              [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.]

          Criminal Law :

          Te1rorist and Disrnptive Activities (Prevemion) Act, 1987.

C         Section 15 (2) read with Rule 15(3) (b) of Rules-Confession-Record-
    ing of-By Police Officer-Po/ice Officer neither gave certificate, in accord-
    ance with R. 15(3)(b) of Rules, of his satisfaction or belief about
    voluntariness of confession after same were recorded nor did he testify about
    his such satisfaction or belief while being examined as a witness-Held: such
D   a confession not to be used against accused.

         The appellants were convicted and sentenced under Sections 120-B
    and 307 of the Indian Penal Code, 1860 read with Sections 3 and S of the
    Terrorist and Disruptive Activities (Prevention) Act, 1987 and Sections 4
    and 6 of the Explosives Substance Act, 1908. Hence this appeal. ·
E
          The prosecution case was based upon the confessional statements
    made by the appellants-accused before the Superintendent of Police, P.W.
    6, which were recorded nuder Section 15 of TADA. The Designated Court
    found the confessions voluntary and true and accordingly passed the order
    of conviction against the appellants-accused. However, the Superintendent
F   of Police did not give any certificate, in accordance with Rule 15(3)(b) of
    the Roles framed under TADA, of his satisfaction or belief about the
    voluntariness of the confessions after the same were recorded. He also did
    not testify about his such satisfaction or belief while he was examined as
    a witness.
G
          Allowing the appeal, this Court

          HELD : 1. Apart from the fact that P.W. 6 did not give any certificate,   '
    in accordance with Rule 15(3)(b) of the Rules framed under the Terrorist
    and Disruptive Activities (Prevention) Act, 1987, of his satisfaction or
H   belief about the voluntariness of the confessions after the same were
                                        86
                 AB. SHAIKH v. STATE [M.K MUKHERJEE, J.]               87

recorded, it is also an admitted fact that while being examined as a witness A
he did not testify about his such satisfaction or belief. Resultantly, confes·
sions allegedly made by the appellants-accused cannot be pressed into
service to prove the charges levelled against them. [89-C·D]

     Chandran v. State of Madras, AIR (1978) SC 1574, relied on.
                                                                             B
             '
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
473 of 1996.

     From the Judgment and Order dated 26.2.96 of the Designated Court
at Ahmedabad in C.T.C. No. 7 of 1995.
                                                                             c
     U .R. Lalit and Ms. Kamini Jaiswal for the Appellants.

     Dr. N.M. Ghatate, (Ms. Rekha Pandey) for Ms. Hemantika Wahi for
the Respondents.

     The Jl!dgment of the Court was delivered by                             D

      M.K. MUKHERJEE, J. The four appellants along with eight others
were tried by the Designated Court, Ahmedabad for offences punishable
under Sections 120-B and 307 !PC, Sections 3 and 5 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 ('TADA' for short) and Sec- E
lion 4 and 6 of the Explosive Substances Act, 1908. The allegations against
them were that they hatched a criminal conspiracy to let loose a reign of
terror in the city of Ahmedabad by hurling bombs on the people of the
Hindu community and that pursuant to the said conspiracy they hurled
bombs near Sarangpur bus stand on January 27, 1993 as a result of which
some members of the public sustained injuries. The trial ended in an order F
of conviction and sentence recorded against all the appellants under Sec-
tions 120-B !PC and 3 and 5 of TADA, two of the appellants under
Sections 307 !PC and 4 of the Explosive Substances Act and the other two
appellants under Sections 6 of the Explosive Substances Act and of acquit-
tal of the other eight. Aggrieved by their convictious and sentences the G
appellants have filed this appeal uuder Section 19 of TADA.

      To sustain the charges levelled against the appellants, the prosecu-
tion rested its case primarily upon the confessional statements made by
each of the above four appellants before Shri D.B. Patel, (P.W. 6} Super-
intendent of Police, C.I.D. Crime Branch, Ahmedabad which were purpor-       H
    88                    SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A tedly recorded under Section 15 of TADA. The Designated Court found
    the confessions voluntary and true and, as they corroborated each other, .
    passed the impugned judgment against the appellants.

          Under sub-section (1) of Section 15 of TADA a confession made by
    a person before a Police Officer not lower in rank than a Superintendent
B of Police is admissible notwithstanding the provisions contained in the
    Code of Criminal Procedure or Indian Evidence Act. Sub-section (2)
    thereof, read with Rule 15 of the Rules framed under TADA, lays down
    the procedure to be followed for recording such confession. Sub-rule (3)(b)
  . of Rule 15 enjoins the Police Officer, who records the confession, to make
C a memorandum at the end of the confession to the following effect :
                "I have explained to (name) that he is not bound to make a
             confession and that, if he does so, any confession he may make
             may be used as evidence against him and I believe that this
             confession was volutarily made. It was taken in my presence and
D            hearing and recorded by me and was read over to the person
             making it and admitted by him to be correct, and it contains a full
             and true account of the statement made by him."

          Admittedly, in none of the four confessions (Ext. 72, 73, 75 and 76),
E with which we are concerned in this appeal, such a memorandum finds
    place. The question, therefore, that falls for our consideration is what is
    the value of such a memorandum and, for that matter, the effect of absence
    thereof. The answer to this question has been given by this Court in
    Chandran v. State of Madras, AIR (1970) SC 1574 while dealing with
    sub-section (4) of Section 164 Cr.P.C. which lays down the procedure to
F   be followed by a Magistrate in recording a confession and is pari materia
    with the above quoted Rule 15(3), with the following words :

                 "But the law does peremptorily require that after recording the
             confession of the accused, the Magistrate must append at the foot
             on the record a memorandum certifying that he believes that the
G            confession was voluntarily made. The reason for requiring com-
             pliance with this mandatory requirement at the close of the record-
             ing of the confession, hearing the confession and observing the
             demeanour of the person making it that the Magistrate is in the
             best position to append the requisite memorandum certifying· the
H            voluntariness of the confession made before him. If, the Magistrate
                          AB. SHAIKH v. STAIB [M.K MUKHERJEE, J.]              89
              recording a confession of an accused person produced·bejore him in A
              the course ofpolice investigation, does not, on the face of the record,
              certify in clear categorical tenns his satisfaction or belief as to the
              voluntary nature of the confession recorded by him, nor testifies orally
              as to such satisfaction or belief the defect would be fatal to the
              admissibility and use of the confession against the accused at the
                                                                                     B
              trial. 11

                                                             (emphasis supplied)

            Apart from the fact that P.W. 6 did not give any certificate, in
     acco~dance with the earlier quoted Rule 15(3) of his satisfaction or belief
     about the voluntariness of the confessions after the same were recorded, it
                                                                                     c
     is afso an admitted fact that while being examined as a witness he did not
     testify about his such satisfactiun or belief. Resultantly, in view of the ab6ve
     quoted observations of this Court, with which we are in complete agree-
     ment, the confessions allegedly made by the four appellants cannot be
     pressed into service to prove the charges levelled against them. Since there D
     is no other evidence on record from which it could be said that the
     appellant are guilty of the offences for which they were charged and
     convicted the appeal must succeed.

           In the result we allow this appeal, set aside the convictions and
     sentences of the appellant and direct that they be released forthwith, unless   E
     wanted in connection with some other case.

     v.s.s.                                                      Appeal allowed.




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