STATE (CBI)versusMOHD. SALIM ZARGAR @ FAYAZ & ORS.

                 [2025] 4 S.C.R. 156 : 2025 INSC 376

                           State (CBI)
                                v.
                Mohd. Salim Zargar @ Fayaz & Ors.
                    (Criminal Appeal No. 1681 of 2009)
                               20 March 2025
               [Abhay S. Oka and Ujjal Bhuyan,* JJ.]


                           Issue for Consideration
       Issue arose as regards the correctness of judgment and order of
       the Special Court acquitting the respondents for offences under
       Ranbir Penal Code, 1932 and Terrorist and Disruptive Activities
       (Prevention) Act, 1987.

                                 Headnotes†
       Terrorist and Disruptive Activities (Prevention) Act, 1987 – ss.3,
       4, 15, 19 – TADA Rules – r.15 – Recording of confessional
       statement – Non-compliance – Effect – Complaint alleging
       that Vice Chancellor of Kashmir University and his Personal
       Secretary were kidnapped by armed terrorists from their official
       car and subsequently, their dead bodies were recovered –
       Investigation by CBI revealed that the self-styled Chief
       Commander of banned militant organization, Jammu & Kashmir
       Students Liberation Front-JKSLF, along with other members,
       including accused, entered into a conspiracy to kidnap the
       deceased to strike terror in the minds of the public, thereby
       to compel the Government to release their associates, and
       execution of the hostages if their demands were not met – As
       the Government did not comply with their demand, hostages
       were taken to a field where accused-respondent no. 1 fired
       upon with AK-47 rifle causing multiple bullet injuries on their
       persons resulting in their death – Special Court discarded the
       ocular evidence and confessional statements of the accused
       being inadmissible in evidence and acquitted the accused
       holding that the prosecution could not prove the guilt of the
       accused beyond any reasonable doubt – Correctness:
       Held: Testimony of the prosecution witnesses coupled with
       non-recovery of the weapon of offence seriously damaged the
       prosecution case – As regards recording of confessional statement
       of respondent no. 1, there is clear departure from the norms which
* Author
[2025] 4 S.C.R.                                                              157

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


     renders the confession highly suspect – Record does not contain
     any statement in the form of questions and answers wherefrom
     it could be deciphered that respondent no.1 was making the
     confession voluntarily – Hardly any or no time for reflection
     was given which vitiated the said confessional statement – Also
     discrepancy in the date of recording of the confessional statement –
     This very confessional statement of respondent no.1 was deemed
     inadmissible and unreliable and rejected by the Special Court in
     a prior case – Acceptance of the same confessional statement of
     respondent No.1 would disturb the finding of fact already recorded
     in the previous criminal trial relating to killing of one – Also, said
     statement clearly vitiated by non-compliance with the procedural
     safeguards provided u/r.15 – Furthermore, confessional statements
     of respondent no.2 and respondent no.6 recorded in the same
     manner as the confessional statement of respondent no.1, hardly
     any or no time was given to them for reflection before recording
     confessional statement – Most crucial ommission completely vitiated
     the said two confessional statements – Procedural safeguards for
     recording confessional statement of accused given a complete go-
     bye – Special Court has stopped short of observing that it was a case
     of abuse of power and authority – No error or infirmity in the view
     taken by the Special Court in acquitting the respondents – Ranbir
     Penal Code, 1932 – ss.118, 120-B, 302, 341, 364, 368, 365 – Arms
     Act, 1959 – s.3/25. [Paras 11, 22.1-22.3, 24, 25, 25.1, 27, 28]
     Terrorist and Disruptive Activities (Prevention) Act, 1987 –
     s.15 – TADA Rules – r.15 – Provisions dealing with recording
     of confessional statement – Explained. [Paras 13, 14]

     Terrorist and Disruptive Activities (Prevention) Act, 1987 –
     ss.3(1), 19 – Incident relating to kidnapping and subsequent
     murder of General Manager of a company in Srinagar allegedly
     by the respondents after entering into a criminal conspiracy to
     strike terror in the minds of the general public and thereby to
     compel the Government to release their associates – Special
     Court acquitted the respondents for the offences u/s.3(1)
     of the TADA Act rw ss.120B, 302, 368 and 364 of the RPC –
     Challenge to:
     Held: Weapon of assault not recovered and eyewitnesses
     deposed that the respondents produced in court were not the
     accused persons – Entire prosecution case centered around the
     confessional statement of accused SZ which has already been
     rejected. [Paras 32, 33]
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                                Case Law Cited
       Kartar Singh v. State of Punjab [1994] 2 SCR 375 : (1994) 3 SCC
       569 – followed.
       Sharafat Hussain Abdul Rahaman Shaikh v. State of Gujarat [1996]
       Supp. 9 SCR 86 : (1996) 11 SCC 62; SN Dubey v. NB Bhoir [2000]
       1 SCR 200 : (2000) 2 SCC 254; Ahmed Hussein Vali Mohammed.
       Saiyed v. State of Gujarat [2009] 8 SCR 719 : (2009) 7 SCC 254;
       Yakub Abdul Razak Memon v. State of Maharashtra [2013] 15
       SCR 1 : (2013) 13 SCC 1; Raja v. State of Tamil Nadu [2020] 4
       SCR 1112 : (2020) 5 SCC 118; Ravinder Singh v. Sukhbir Singh
       [2013] 1 SCR 243 : (2013) 9 SCC 245 – referred to.

                                  List of Acts
       Ranbir Penal Code, 1932; Terrorist and Disruptive Activities
       (Prevention) Act, 1987; TADA Rules; Arms Act, 1959.

                               List of Keywords
       Recording of confessional statement; Vice Chancellor of Kashmir
       University and his Personal Secretary kidnapped by armed
       terrorists; Self-styled Chief Commander of banned militant
       organization called Jammu & Kashmir Students Liberation Front;
       Kidnap to strike terror in the minds of the public; Execution of
       hostages; Multiple bullet injuries; Ocular evidence; Confessional
       statements; Inadmissible in evidence; Testimony of the prosecution
       witnesses; Non-recovery of weapon of offence; No time for reflection
       before recording confessional statement; Kidnapping and murder
       of General Manager of HMT watch company, Srinagar; Weapon
       of assault; Conspiracy; Safeguards for confessional statements;
       AK-47 rifle.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       1681 of 2009
       From the Judgment and Order dated 20.04.2009 of the High Court
       of Jammu and Kashmir in RC No. 5 of 1990
       With
       Criminal Appeal No. 1770 of 2009
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           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


                        Appearances for Parties
     Advs. for the Appellant:
     Ms. Sonia Mathur, Sr. Adv., Ms. Shubhi Bhardwaj, Mukesh Kumar
     Maroria, Annam Venkatesh, Zoheb Hussain, Rajat Nair, Vivek
     Gurnani.
     Advs. for the Respondents:
     Ms. Kamini Jaiswal, Ms. Rani Mishra, Abani Sahu.

                Judgment / Order of the Supreme Court

                                  Judgment

     Ujjal Bhuyan, J.

     Criminal Appeal No. 1681 of 2009
     This is an appeal under Section 19 of the Terrorist and Disruptive
     Activities (Prevention) Act, 1987 by the State (CBI) assailing the
     judgment and order dated 20.04.2009 passed by the 3 rd Addl.
     Sessions Judge, Jammu (briefly ‘the Special Court’ hereinafter). By
     the aforesaid judgment and order, the Special Court acquitted the
     respondents in CBI Case No. RC 5(S)/1990 for the offences under
     Sections 118, 302, 368 and 365 of the Ranbir Penal Code, 1932
     (RPC) and under Sections 3 and 4 of the Terrorist and Disruptive
     Activities (Prevention) Act, 1987, hereinafter referred to as the TADA
     Act (since repealed).
2.   Genesis of the case can be traced to FIR No. 55/1990 registered at
     Police Station Nageen, Srinagar under Sections 364, 341 and 120-B
     of RPC read with Section 3(2) of the TADA Act. The FIR was lodged
     on the basis of a complaint filed by Shri Ghulam Nabi Dar, a driver
     of Kashmir University. Informant alleged that on 06.04.1990 at about
     04.20 pm, Dr. Mushir-ul-Haq, Vice Chancellor of Kashmir University,
     and his Personal Secretary Shri Abdul Gani Zargar were kidnapped
     by armed terrorists from their official car outside the Sadarbal Gate
     of the University. After taking them in the said vehicle for a short
     distance towards Lal Bazar on Sadarbal Road, they were shifted to
     a red Maruti van and taken away.
     2.1 Subsequently, dead bodies of Dr. Mushir-ul-Haq and Shri Abdul
         Gani Zargar were recovered on 10.04.1990. As a result, Section
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            302 RPC and Section 3/25 of the Arms Act, 1959 (‘Arms Act’
            hereinafter) were added to the FIR.
       2.2 Investigation of the case was transferred to the Central Bureau
           of Investigation (CBI) on the request of the Jammu and Kashmir
           Government. On the CBI taking over investigation, the case
           was re-registered as RC 5 (S)/90-SIU.V on 21.04.1990 under
           Sections 302, 341 and 364 RPC read with Section 3 of the
           TADA Act and Sections 3/25 of the Arms Act.
       2.3 Investigation revealed that Hilal Beg was the self-styled Chief
           Commander of a banned militant organization called Jammu
           & Kashmir Students Liberation Front (JKSLF). He along with
           other members of JKSLF, including accused Javed Shala, Tahir
           Ahmed Mir, Mushtaq Ahmed Sheikh, Mushtaq Ahmed Khan,
           Mohd. Hussain Khan and Mohd. Salim Zargar entered into a
           conspiracy between 31.03.1990 and 06.04.1990 to kidnap Dr.
           Mushir-ul-Haq, the Vice-Chancellor of Kashmir University and
           others to strike terror in the minds of the public, thereby to
           compel the Government to release their associates, viz, Nissar
           Ahmed Jogi, Gulam Nabi Bhat and Fayyaz Ahmed Wani. The
           conspiracy included execution of the hostages if their demands
           were not met.
       2.4 On 06.04.1990, at approximately 09.00 a.m., the accused
           persons grouped together at Aftab’s house. They left the house
           of Aftab in a red Maruti van bearing registration No. JKD-9394
           and proceeded towards Kashmir University. They were fully
           armed. At about 01.20 p.m., the accused persons saw the car
           of the Vice-Chancellor coming out of the University campus
           towards the Sadarbal Gate. The vehicle had to stop as the
           gate was being opened. As it came out from the gate, some
           of the accused persons forcibly got inside the car of the Vice-
           Chancellor brandishing their weapons. They overpowered the
           driver, the Vice-Chancellor, his Personal Secretary and Jamadar,
           Malook Khan. The vehicle of the Vice-Chancellor was driven
           towards the Sadarbal side followed by accused Javed Shala
           and Mushtaq Sheikh in the red Maruti van.
       2.5 After travelling some distance, the said vehicle was stopped
           whereafter the accused persons forced the Vice-Chancellor
           and his Personal Secretary to come out of the car. The Vice-
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           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


           Chancellor and his Personal Secretary were thereafter taken to
           the red Maruti van. Subsequently the two kidnapped persons
           were taken to different locations and ultimately were taken to
           the residence of Mohd. Sadiq Rather at Natipura. From there
           the two kidnapped persons were shifted to the house of accused
           Shabir where they were kept confined.
     2.6 Accused Hilal Beg claimed responsibility for the abduction
         of Dr. Mushir-ul-Haq, the Vice-Chancellor, and his Personal
         Secretary Abdul Gani Zargar. In this connection, accused Hilal
         Beg issued a press release.
     2.7 As the Government did not comply with their demand, accused
         Hilal Beg and his associates convened a meeting on 09.04.1990
         at 03.00 p.m. to decide the fate of the hostages.
     2.8 On 10.04.1990, the two hostages were taken to a field.
         Accused Salim Zargar fired upon with an AK-47 rifle causing
         multiple bullet injuries on their persons as a result of which
         both of them died on the spot. Local police came to the crime
         scene and recovered 9 empty cartridges of an AK-47 rifle
         but the AK-47 rifle could not be recovered. On conclusion of
         investigation (after transfer of the same to the CBI), charge
         sheet was filed implicating Hilal Beg, Javed Ahmed Shala,
         Mushtaq Ahmed Sheikh, Mohd. Salim Zargar, Mohd. Hussain
         Khan, Aftab Lach Khan, Mushtaq Ahmed Khan, Shabir Butt,
         Hilal Sheikh, Mohammad Ashraf Butt and Gulam Qadir Mir as
         the accused for committing an offence under Sections 120B
         read with Section 365 RPC. All the above, except Aftab Lach
         Khan, were accused of committing an offence punishable under
         Sections 3(1) and 3(3) of the TADA Act. Accused Aftab Lach
         Khan was charged with committing an offence under Section
         3(3) of the TADA Act. Additionally, Hilal Beg, Javed Ahmed
         Shala, Mushtaq Ahmed Sheikh, Mohd. Salim Zargar, Mushtaq
         Ahmed Khan and Tahir Mir were charged under Section 4(2) of
         the TADA Act. Accused Mohd. Salim Zargar was further charged
         for committing an offence punishable under Section 302 RPC
         while accused Hilal Beg was charged under Section 32 read
         with Section 34 of the RPC.
3.   Vide order dated 22.04.2000 accused Abdul Aziz Dar, Gulam Qadir
     Mir, Shabir Ahmed Bhat, Mohd. Sadiq Rather, Mushtaq Ahmed Khan
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       and Mohd. Salim Zargar (respondents in the present appeal) were
       charged for committing an offence under Sections 118/302/368/365
       of the RPC read with Sections 3/4 of the TADA Act.
       3.1 Accused denied their guilt and claimed to be tried. One of
           the accused persons Tahir Ahmed Mir was discharged on the
           same day but proceedings were initiated against the other
           accused persons. During pendency of the trial, accused Hilal
           Beg passed away.
       3.2 To prove its case, prosecution examined a number of witnesses.
           After considering the evidence and other materials on record,
           the Special Court vide the judgment and order dated 20.04.2009
           acquitted the accused persons holding that the prosecution
           could not prove the guilt of the accused beyond any reasonable
           doubt. The Special Court discarded the ocular evidence of
           PW-2, PW-3 and PW-6 as well as the confessional statements
           of the accused which were held to be inadmissible in evidence.
4.     Aggrieved thereby, appellant (State) has approached this Court by
       filing criminal appeal under Section 19 of the TADA Act, being Crl.
       Appl. No. 1681/2009. Crl. Appl. No. 1681/2009 was admitted by this
       Court vide the order dated 28.08.2009.
5.     We have heard Mrs. Sonia Mathur, learned Senior Counsel for
       the appellant and Ms. Kamini Jaiswal, learned counsel for the
       respondents.
6.     Learned Senior Counsel for the appellant-State submits that the
       Special Court relied on a previous decision dated 21.12.2002 in
       the case of State through CBI Vs. Mohd. Salim Zargar wherein
       the confessional statement of Mohd. Salim Zargar was held to be
       inadmissible. In the present proceedings, besides the confessional
       statement of Mohd. Salim Zargar, there were confessional statements
       of two other accused persons, namely, Mushtaq Ahmed Khan and
       Mohd. Sadiq Rather. However, the confessional statements of both
       the accused persons were rejected due to the following reasons:
            i)    No statements in the form of questions and answers were
                  recorded by the Recording Officer to conclude that his
                  satisfaction was based on sound material;
            ii)   No record was maintained by the Recoding Officer to
                  ascertain if the confessional statement was voluntary;
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            State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


           iii)   No effort was made to find out if any other Superintendent of
                  Police was available to record the confessional statements;
           iv)    No letter was written by the Investigating Officer to the
                  Recording Officer requesting the later to record the
                  confessional statements of the aforesaid two accused
                  persons;
           v)     It is not mentioned that the Recording Officer had given
                  time to the accused persons and at what time the accused
                  persons were produced before him;
           vi)    Confessions of the accused persons were recorded
                  on the same day when they were produced before the
                  Superintendent of Police;
     6.1 Learned Senior Counsel for the appellant submits that for
         the aforesaid lacunae the Special Court did not accept the
         confessional statements of Mushtaq Ahmed Khan and Mohd.
         Sadiq Rather.
     6.2 Referring to Section 15 of the TADA Act, learned Senior
         Counsel submits that if a confessional statement is established
         as voluntary, truthful and relates to the accused directly, it
         holds sufficient evidentiary value. In such a case, no further
         corroboration is necessary. Conviction of the accused can
         be based solely on such confession. In the present case, the
         confessions of the accused persons were voluntary, true and
         those corroborated with each other. Recording Officer Shri
         AK Suri, PW-12, had followed the procedure mandated under
         Section 15 of the TADA Act and Rule 15 of the TADA Rules.
         Therefore, the Special Court was not justified in rejecting the
         confessional statements of the aforesaid two accused persons.
     6.3 Adverting to the rejection of the confessional statement of
         Mohd. Salim Zargar, learned Senior Counsel submits that the
         doctrine of issue estoppel cannot be applied in the present
         case. Salim Zargar was acquitted in a different proceeding
         vide the judgment and order dated 21.12.2002 which was not
         challenged by CBI. Barring Salim Zargar, parties are different
         in both the cases. Present trial had arisen out of a completely
         different incident i.e. kidnapping of Dr. Mushir-ul-Haq, the Vice-
         Chancellor of Kashmir University, and his Personal Secretary,
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            Abdul Gani Zargar, from the Sadarbal Gate of the University
            on 06.04.1990. Therefore, the Special Court fell in error in
            rejecting the confessional statement of Salim Zargar relying
            on the doctrine of issue estoppel.
       6.4 In any case, in addition to the confessional statement of Salim
           Zargar, there were confessions of two other accused persons,
           viz, Mushtaq Ahmed Khan and Mohd. Sadiq Rather which were
           recorded by the Superintendent of Police on 14.08.1990 and
           25.08.1990 respectively. In view of the joint trial of the accused
           persons, confessions of the aforesaid two accused persons
           which were made voluntarily and corroborated with each other
           should have been relied upon.
       6.5 It is further submitted that confessions of the accused persons
           were recorded in the year 1990 when there were no guidelines
           prescribed for recording of statements under Section 15 of the
           TADA Act. Judgment in the case of Kartar Singh Vs. State of
           Punjab,1 came much later. Therefore, the procedure prescribed
           in Kartar Singh (supra) could not have been followed in the
           present case.
       6.6 Learned Senior Counsel submits that Section 15 of the TADA
           Act provides the substantive legal frame work for recording
           confessions while Rule 15 of the TADA Rules lays down the
           procedural safeguards necessary to uphold the validity of such
           confessional statements. Section 15(2) of the TADA Act should
           be read with Rule 15 of the TADA Rules. Notably, sub-rule 3(b)
           of Rule 15 mandates the police officer recording a confession
           to append a memorandum at the end of the confession. In the
           present case, Shri AK Suri, PW-12, ensured before recording
           the confessional statements that the accused were doing
           so voluntarily and they were duly warned about the legal
           consequences of such confession. The accused signed every
           page of the statements and the Recording Officer appended
           the mandatory memorandum confirming the voluntary nature
           of the confessions. The certificates, duly signed and sealed,
           were forwarded to the competent authority. Hence the issuance
           of the certificates complied with Rule 15(3) of the TADA Rules


1   (1994) 3 SCC 569
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              State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


             reflecting the officer’s satisfaction regarding the voluntariness
             of the confessions.
      6.7 That apart, it is further submitted that the confessional statement
          of Mohd. Salim Zargar was additionally recorded under Section
          164 of the Code of Criminal Procedure, 1973 (Cr.PC) which
          was duly exhibited during the trial.
      6.8 Thus, the confessional statements of Mohd. Salim Zargar,
          Mushtaq Ahmed Khan and Mohd. Sadiq Rather were recorded
          following the legal procedure mandated by the statute. Therefore,
          the Special Court was not at all justified in discarding the
          confessional statements of the abovenamed accused persons.
          On the basis of such confessional statements, the guilt of
          the accused persons stood conclusively established. In the
          circumstances, learned Senior Counsel submits that the appeal
          may be allowed setting aside the impugned judgment of the
          Special Court.
      6.9 In support of her submissions, learned Senior Counsel has
          placed reliance on the following decisions:
             i)        Kartar Singh (supra);
             ii)       Sharafat Hussain Abdul Rahaman Shaikh Vs. State
                       of Gujarat;2
             iii)      SN Dube Vs. NB Bhoir;3
             iv)       Ahmed Hussein Vali Mohammed. Saiyed Vs. State of
                       Gujarat;4
             v)        Yakub Abdul Razak Memon Vs. State of Maharashtra;5
                       and,
             vi)       Raja Vs. State of Tamil Nadu;6
7.    Per contra, learned counsel for the respondents submits that Special
      Court had acquitted all the accused persons as the only actionable


2    (1996) 11 SCC 62
3    (2000) 2 SCC 254
4    (2009) 7 SCC 254
5    (2013) 13 SCC 1
6    (2020) 5 SCC 118
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       evidence were the alleged confessional statements of the three
       accused persons. In so far the confessional statement of Mohd.
       Salim Zargar is concerned, the same was already rejected by the
       Special Court vide the judgment and order dated 21.12.2002 in a
       separate TADA proceeding. No appeal was preferred by the CBI
       against the said acquittal order which was passed following rejection
       of the confessional statement of Mohd. Salim Zargar. Thus, the said
       finding had become final. In the present proceeding, prosecution relied
       upon the same confessional statement which was rightly rejected
       by the Special Court.
       7.1 Learned counsel submits that trial in this case took more than
           19 years to complete as the prosecution was very tardy in
           producing the witnesses before the Court while the accused
           persons remained in custody as under-trial prisoners. The
           alleged confessional statements were recorded by one Shri AK
           Suri, PW-12, who was holding the post of Superintendent of
           Police, CBI at the relevant point of time and was also supervising
           the investigation of the present case. Prosecution could not
           produce any authorization whereby PW-12 was authorized to
           record the confessional statements. After due consideration,
           the Special Court discarded the confessional statements of all
           the three accused persons. While the confessional statement of
           Mohd. Salim Zargar was rejected because the same confessional
           statement was relied upon by the prosecution in another trial
           where it was rejected, in so far the confessional statements of
           Mushtaq Ahmed and Mohd. Sadiq Rather are concerned, the
           Special Court expressed serious doubt about the voluntary
           nature of such confessions.
       7.2 Elaborating further, learned counsel for the respondents submits
           that PW-12 did not testify as to how the accused persons had
           appeared before him on their own. He was also silent about
           the production of the accused persons before him and also in
           respect of any request regarding recording of such confessional
           statements made to him by the Investigating Officer. The
           Investigating Officer deposed that he had never arrested the
           accused persons and had not even produced the accused
           before the Court. He further stated that he did not ask the
           SP, CBI (Shri AK Suri) to come for recording the statement of
           the accused persons. There is no record to show from whose
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           custody the accused persons were produced before Shri Suri
           when the alleged confessions were recorded or whether the
           accused persons made any desire in writing or orally to get
           their confessions recorded. The testimony of Shri AK Suri also
           shows that no questions were put to and answers sought from
           the accused persons before recording their confessions. There
           is no contemporaneous record to show that questions were put
           to the accused persons by Shri AK Suri before the statements
           were recorded. No satisfaction was recorded that the confessional
           statements were made voluntarily and were truthful. Admittedly,
           the confessional statements were recorded under compelling
           circumstances in places which were fortified and heavily guarded,
           such as, BSF camp and Joint Interrogation Centres.
     7.3 Learned counsel for the respondents submits that it is not the
         case of the prosecution that no other Superintendent of Police
         was available at the relevant point of time and that only Shri
         AK Suri was available which necessitated him to record the
         confessional statements. Learned counsel asserts that Shri Suri
         was keen and overzealous to get the confessional statements
         recorded by himself for more than one reason. There is nothing
         on record to show from whose custody the accused persons
         were produced before Shri Suri for recording of the confessional
         statements in the BSF camp and at the Joint Interrogation
         Centres and at whose instance. There was no independent
         evidence to support the prosecution case and, therefore, the
         only way the prosecution could succeed in proving the guilt
         of the accused persons was to resort to the draconian law for
         getting the confessions recorded by themselves.
     7.4 Learned counsel for the respondents submits that no offence
         under the TADA Act was made out or proved as against the
         respondents. It is evident that the accused persons were
         subjected to harsh interrogation, treatment and unlawful
         incarceration to make out a case of TADA but without any
         evidence. Special Court rightly acquitted the respondents. There
         is no illegality or perversity in the order of acquittal. No case is
         made out to reverse the order of acquittal.
     7.5 Learned counsel has relied upon the decisions of this Court in
         Kartar Singh (supra), SN Dube (supra) and also in the case
         of Raja (supra) which clearly lay down the proposition that the
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            guidelines prescribed by this Court for recording of confessional
            statements under Section 15 of the TADA Act and Rule 15 of the
            TADA Rules are mandatory in nature which have to be followed
            if such confessions are to be relied upon. If the guidelines or
            conditions are not complied with, such confessional statements
            cannot be relied upon to convict the accused.
       7.6 In the circumstances, learned counsel for the respondents
           submits that there is no merit in the appeal which should,
           therefore, be dismissed.
8.     Submissions made by learned counsel for the parties have received
       the due consideration of the Court.
9.     Prosecution presented PW-2, Ghulam Mohiuddin Khan, PW-3, Molu
       Khan, and PW-6, Ghulam Nabi Dar, the driver, as the eyewitnesses.
       PW-2 and PW-3 in their evidence described the kidnappers as young
       men with moustaches but could not identify them. PW-6 detailed
       how armed individuals hijacked the vehicle and later transferred the
       kidnapped persons to another car but he could not recognize the
       individuals. Therefore, evidence of the aforesaid witnesses are of
       not much assistance to the prosecution.
10. Though the medical and forensic evidence confirmed that both the
    deceased were killed by bullets fired from AK-47 rifle, the weapon
    (AK-47 rifle) used in the crime could not be recovered. In fact, PW-
    11 Shri Roop Singh, a Senior Scientific Officer from the Central
    Forensic Science Laboratory, New Delhi testified that the cartridges
    recovered and sent to him for forensic examination were from a 7.62
    mm AK-47 rifle. However, during cross-examination, he admitted that
    he had not seen the AK-47 rifle from which the cartridges were fired.
11. It is evident that the aforesaid testimony of the prosecution witnesses
    coupled with non-recovery of the weapon of offence seriously
    damaged the prosecution case. Prosecution therefore relied entirely
    on the confessional statements of Mohd. Salim Zargar, Mushtaq
    Ahmed Khan and Mohd. Sadiq Rather to prove the case against
    the respondents.
12. Before we deal with the admissibility or otherwise of the aforesaid
    confessional statements, it would be apposite to analyse the relevant
    legal provisions under the TADA Act and the TADA Rules dealing
    with recording of confessional statements.
[2025] 4 S.C.R.                                                          169

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


13. TADA Act was a special legislation enacted to make special provisions
    for the prevention of and for coping with terrorist and disruptive
    activities and for matters connected therewith or incidental thereto.
    Section 15 provides for certain confessions made to police officers
    to be taken into consideration. Section 15 is as under:
            15. Certain confessions made to Police Officers to be
            taken into consideration.-
            (1) Notwithstanding anything in the Code or in the
            Indian Evidence Act, 1872 (1 of 1872), but subject to
            the provisions of this section, a confession made 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
            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
            accused.
            (2) The police officer shall, before recording any
            confession under sub-section (1), explain to the person
            making it that he is not bound to make a confession and
            that, if he does so, it may be used as evidence against
            him and such police officer shall not record any such
            confession unless, upon questioning the person making it,
            he has reason to believe that it is being made voluntarily.
     13.1 Sub-section (1) starts with a non-obstante clause. It says
          that notwithstanding anything contained in the Cr.P.C. or in
          the Indian Evidence Act, 1872 (‘Evidence Act’ hereinafter)
          but subject to the provisions of Section 15 of the TADA Act,
          a confession made by a person before a police officer not
          lower in rank than a Superintendant of Police (SP) shall be
          admissible in the trial of such person or that of co-accused,
          abettor or conspirator for an offence under the TADA Act or
          under the TADA Rules. The recording may be by such a police
          officer or on any mechanical device, like, cassettes, tapes etc.
170                                                          [2025] 4 S.C.R.

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             Proviso to sub-section (1) says that the confessional statement
             made under sub-section (1) shall be admissible with regard
             to the co-accused, abettor or conspirator if they are charged
             and tried in the same case together with the accused. Sub-
             section (2) of Section 15 mandates that before recording
             any confession under sub-section (1), the police officer shall
             explain to the person making it that he is not bound to make
             a confession but if he does so, it may be used as evidence
             against him. Such a police officer shall not record any such
             confession unless upon questioning the person making it, he
             has reason to believe that it is being made voluntarily.
       13.2 Thus, sum and substance of Section 15 of the TADA Act is that
            a confessional statement made voluntarily by a person before
            a police officer not below the rank of SP shall be admissible
            in the trial of such person for an offence under the TADA Act.
14. Rule 15 of the TADA Rules lays down the procedure regarding
    recording of confession made to police officers. Rule 15 reads thus:
             15. Recording of confession made to police officers.—(1)
             A confession made by a person before a police officer and
             recorded by such police officer under Section 15 of the
             Act shall invariably be recorded in the language in which
             such confession is made and if that is not practicable,
             in the language used by such police officer for official
             purposes or in the language of the Designated Court and
             it shall form part of the record.
             (2) The confession so recorded shall be shown, read
             or played back to the person concerned and if he does
             not understand the language in which it is recorded,
             it shall be interpreted to him in a language which he
             understands and he shall be at liberty to explain or add
             to his confession.
                 (3) The confession shall, if it is in writing, be—
             (a) signed by the person who makes the confession; and
             (b) by the police officer who shall certify under his own
             hand that such confession was taken in his presence
             and recorded by him and that the record contains a full
[2025] 4 S.C.R.                                                           171

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.



            and true account of the confession made by the person
            and such police officer shall make 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 voluntarily made. It
            was taken in my presence and hearing and recorded
            by me and was read over to the person making it and
            admitted by him to be correct, and it contains a full and
            true account of the statement made by him.
                                       Sd/-
                                  Police Officer’
            (4) Where the confession is recorded on any mechanical
            device, the memorandum referred to in sub-rule (3) insofar
            as it is applicable and a declaration made by the person
            making the confession that the said confession recorded
            on the mechanical device has been correctly recorded
            in his presence shall also be recorded in the mechanical
            device at the end of the confession.
            (5) Every confession recorded under the said Section 15
            shall be sent forthwith to the Chief Metropolitan Magistrate
            or the Chief Judicial Magistrate having jurisdiction over
            the area in which such confession has been recorded and
            such Magistrate shall forward the recorded confession
            so received to the Designated Court which may take
            cognizance of the offence.
     14.1 While sub-rule (1) mandates that the confession under Section
          15 of the TADA Act should be recorded in the language in
          which the confession is made, but if that is not practical, then
          it should be recorded in the language used by such police
          officer for official purposes or in the language of the designated
          court. In any case, the confessional statement shall form part
          of the record.
     14.2 As per sub-rule (2), the confession so recorded shall be shown,
          read or played back to the person concerned. If he does not
          understand the language in which it is recorded, it shall be
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                          Supreme Court Reports


             interpreted to him in a language which he understands. At that
             stage, the person making the confession shall be at liberty to
             explain or add to his confession.
       14.3 The requirement of sub-rule (3) is that the confession if it is in
            writing shall be signed by the person who makes the confession
            as well as by the police officer. Additionally, the police officer
            shall certify under his own hand that such confession was taken
            in his presence and recorded by him. He shall also certify that
            the record contains a full and true account of the confession
            made by the person. At the end of the confession, the police
            officer is required to make a memorandum, the substance of
            which is that the police officer had explained to the person
            concerned that he is not bound to make a confession but if he
            does so, the same may be used against him as evidence. The
            memorandum should contain a certificate of the police officer
            that he believes that the confession was made voluntarily in
            his presence and recorded by him; that it was read over to
            the person concerned who admitted the same to be correct
            containing a full and true account of the statement made by him.
       14.4 Sub-rule (4) deals with a situation where the confession is
            recorded on any mechanical device. Since in the present
            case, the confessional statements were not recorded on
            any mechanical device, this provision may not have much
            relevance.
       14.5 Sub-rule (5) mandates that every confession recorded under
            Section 15 of the TADA Act shall be sent forthwith to the
            jurisdictional Chief Judicial Magistrate or the Chief Metropolitan
            Magistrate, as the case may be, who shall forward the recorded
            confession so received to the designated court (special court)
            which may take cognizance of the offence.
       14.6 Thus, Rule 15 deals with the procedural aspect regarding
            recording of confession made to police officers under
            Section 15.
15. As noticed above, TADA Act was enacted by the Parliament to deal
    with the menace of terrorism and related disruptive activities. It
    contained a special provision in the form of Section 15 which permitted
    confessional statement recorded by a police officer not below the
    rank of SP to be admitted as evidence in the trial of the person
[2025] 4 S.C.R.                                                         173

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


     making the confessional statement or the trial of the co-accused,
     abettor or conspirator if they are tried together in the same case as
     the person making the statement.
16. In criminal jurisprudence, developed over a century, confessions
    made to a police officer are inadmissible in evidence. Under Section
    25 of the Evidence Act, a confession made to a police officer by
    a person accused of an offence shall not be proved against him.
    Power to record confessions is given to a Judicial Magistrate. Strict
    and rigorous guidelines have been laid down to record such judicial
    confessions under Section 164 Cr.P.C. Such safeguards are founded
    on the well-settled principle that confession is an admission of guilt.
    Ordinarily, nobody would like to admit his guilt as he is fully aware
    that the same would be used against him. That apart, an accused
    has a constitutional and fundamental right against testimonial
    compulsion. Therefore, Section 15 of the TADA Act completely altered
    the fundamental rules of evidence.
17. Vires of the TADA Act was challenged before the Supreme Court
    in Kartar Singh (supra). A Constitution Bench of this Court while
    upholding the validity of Section 15 of the TADA Act as well as the
    entirety of the Act, however, laid down certain guidelines so as to
    ensure that confession obtained in the pre-indictment interrogation by
    a police officer not lower in rank than a Superintendent of Police is not
    tainted with any vice but is in strict compliance with well-recognized
    and accepted aesthetic principles and fundamental fairness. These
    guidelines are as follows:
            263. However, we would like to lay down following
            guidelines so as to ensure that the confession obtained
            in the pre-indictment interrogation by a police officer
            not lower in rank than a Superintendent of Police is not
            tainted with any vice but is in strict conformity with the
            well-recognised and accepted aesthetic principles and
            fundamental fairness:
            (1) The confession should be recorded in a free
            atmosphere in the same language in which the person
            is examined and as narrated by him;
            (2) The person from whom a confession has been
            recorded under Section 15(1) of the Act, should be
174                                                    [2025] 4 S.C.R.

                    Supreme Court Reports


       produced before the Chief Metropolitan Magistrate or
       the Chief Judicial Magistrate to whom the confession
       is required to be sent under Rule 15(5) along with the
       original statement of confession, written or recorded on
       mechanical device without unreasonable delay;
       (3) The Chief Metropolitan Magistrate or the Chief Judicial
       Magistrate should scrupulously record the statement,
       if any, made by the accused so produced and get his
       signature and in case of any complaint of torture, the
       person should be directed to be produced for medical
       examination before a Medical Officer not lower in rank
       than of an Assistant Civil Surgeon;
       (4) Notwithstanding anything contained in the Code
       of Criminal Procedure, 1973, no police officer below
       the rank of an Assistant Commissioner of Police in
       the metropolitan cities and elsewhere of a Deputy
       Superintendent of Police or a police officer of equivalent
       rank, should investigate any offence punishable under
       this Act of 1987.
       This is necessary in view of the drastic provisions of this
       Act. More so when the Prevention of Corruption Act, 1988
       under Section 17 and the Immoral Traffic Prevention Act,
       1956 under Section 13, authorise only a police officer of
       a specified rank to investigate the offences under those
       specified Acts.
       (5) The police officer if he is seeking the custody of any
       person for pre-indictment or pre-trial interrogation from
       the judicial custody, must file an affidavit sworn by him
       explaining the reason not only for such custody but also
       for the delay, if any, in seeking the police custody;
       (6) In case, the person, taken for interrogation, on receipt
       of the statutory warning that he is not bound to make
       a confession and that if he does so, the said statement
       may be used against him as evidence, asserts his right
       to silence, the police officer must respect his right of
       assertion without making any compulsion to give a
       statement of disclosure;
[2025] 4 S.C.R.                                                            175

            State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


             The Central Government may take note of these guidelines
             and incorporate them by appropriate amendments in the
             Act and the Rules.
      17.1 This Court further clarified that though it is entirely for the court
           trying the offence to decide the question of admissibility or
           reliability of a confession in its judicial wisdom strictly adhering
           to the law, it must satisfy itself that there was no trap, no track
           and no importune seeking of evidence during the phase of
           custodial interrogation. The court should also satisfy itself
           that all the required conditions are fulfilled. This Court further
           emphasized that in order to ensure a higher level of scrutiny
           vis-a-vis applicability of TADA Act there should be a screening
           committee or a review committee both at the central level as
           well as at the state level.
18.    In the case of SN Dube (supra), a two Judge Bench of this Court
      negatived the contention of the defence that a confession under
      Section 15 of the TADA Act should be recorded in two phases i.e. the
      preliminary part containing the record of how and for what purpose
      the person was forwarded and the questions and answers put to him
      for ascertaining his voluntary willingness to make a confession even
      after being told that the confession may be used against him as a
      piece of evidence; and the second part which contains the actual
      confessional statement. Contention of the defence was that it is the
      second part which has to be regarded as the actual confessional
      statement and not the preliminary part. Therefore, the obligation to
      explain and ascertain is to be performed while recording the real
      confessional part. Such explanation and ascertainment done earlier
      when the preliminary part was recorded cannot be regarded as
      proper compliance with the requirement of Rule 15(2). The police
      officer must explain and give the statutory warning before the actual
      confessional part starts and it is at that point of time that he has to
      ascertain by questioning the person making it that he is making the
      confession voluntarily.
      18.1 The aforesaid contention of the defence was repelled by this
           Court in the following manner:
             30. ...Therefore, the contention that when the confession
             is recorded in two parts, only the second part can be
             regarded as the confession and while recording the
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           second part the police officer should give the statutory
           warning and then ascertain if the person concerned is
           making it voluntarily, cannot be accepted. The requirement
           of law is that before recording the confession the police
           officer should ascertain by putting questions to the maker
           of it that he is making the confession voluntarily and he
           should also explain to him that he is not bound to make
           the confession and that if he makes it that can be used
           against him as evidence. In this case DSP Shinde had put
           questions to each of the accused who was brought before
           him to ascertain if he was willing to make a confession
           voluntarily and had also given the statutory warning to
           him on that day. Even after the accused had shown his
           willingness to make a confession Shinde had given him
           time not exceeding 48 hours to think over his readiness to
           make the confession. When the accused was brought to
           him again he had again ascertained if he was still ready
           and willing to give a statement. He had also asked him
           if he was making it under any pressure or coercion or
           threat. Only after the accused had replied in the negative
           he had told the accused to say whatever he wanted to
           state about Suresh Dube’s murder. In view of these facts
           and circumstances it is not possible to uphold the finding
           recorded by the trial court and to accept the contention
           raised on behalf of the respondents that while recording
           the confessions of the accused Shinde had committed
           a breach of Rule 15(2).
19. Shiraj Ahmed (supra) is a case where a two Judge Bench of this
    Court while considering the admissibility of a confession recorded
    under Section 15 of the TADA Act referred to the exceptional nature
    of Section 15 and the guidelines laid down by the Constitution Bench
    in Kartar Singh (supra). This Court held that any confession made
    in defiance of the safeguards would not be relied upon by a court.
    This Court held thus:
          50. From the aforementioned statements of law enunciated
          by this Court, it is apparent that considerable amount of
          confidence has been reposed in the senior police officials
          for recording the confessional statement. A confessional
          statement to police is not admissible under the general
[2025] 4 S.C.R.                                                            177

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


           law connected with administration of criminal justice, which
           is made admissible under the TADA Act, and, therefore,
           strict compliance with the procedure prescribed under
           Section 15 of the TADA Act read with Rule 15 of the TADA
           Rules is expected to be followed. Any confession made in
           defiance of the safeguards provided therein, would not be
           relied upon by a court. The confession should be made
           voluntarily without there being any force or pressure put
           on, or allurement or inducement given to, a person who
           is voluntarily admitting his guilt. Under Section 25 of the
           Evidence Act, a confession made to the police officer is
           not admissible in evidence to be considered by a court.
           Although there are certain exceptions in the preceding
           provisions, but the fact remains that as a rule a confession
           made to the police officer is not made admissible under
           the Evidence Act. The idea appears to be that any
           statement made to a police officer who is connected with
           the investigation and prosecution of a person, would not
           be taken as evidence. Under Section 15 of the TADA Act,
           if a confession made by the accused to a police officer not
           lower than the rank of Superintendent of Police is made
           admissible, it would still be a confession made to the police
           officer, and thus inbuilt safeguards have been provided
           under Section 15 of the TADA Act read with Rule 15 of
           the TADA Rules so as to lend credence to the confession
           made to the police officer, it being voluntary and without
           any force or pressure and allurement or inducement. The
           Constitution Bench of this Court in Kartar Singh has also
           laid down the condition to establish the voluntary nature
           of the confession.

             x      x    x      x     x     x     x     x      x     x

           52. From a bare reading of the above certificate, it is clear
           that it is necessary for the police officer to certify that he
           has explained to the accused that the accused is not bound
           to make a confession and if he does so such confession
           may be used as evidence against him. It is further required
           to be recorded that he believes that the confession was
           voluntarily made. He has to record that the confessional
178                                                        [2025] 4 S.C.R.

                        Supreme Court Reports


          statement has been taken in his presence and heard and
          recorded by him. The confessional statement should be
          read over to the person making it and admitted by him to
          be correct and it should be certified that it contains a full
          and true account of the statement made by the accused.
          The certificate which is required to be given by the police
          officer is not a mere formality, but it is for the purposes
          of ascertaining that the police officer has recorded the
          confession keeping in mind and being fully aware of the
          fact that the confession recorded by him is a voluntary
          confession and with the information available to the
          accused that he is not bound to make such confession
          and if he does so it will be used as evidence against
          him. A duty is cast on the police officer who is to record
          the confession to bring at the relevant time these facts
          to the notice of the person whose confession is going to
          be recorded.
20. In the case of Ajit Singh (supra), a two Judge Bench of this Court
    again considered admissibility of confessions recorded under Section
    15 of the TADA Act. Observing the draconian nature of Section 15,
    this Court emphasized that TADA Act is a harsh penal statute and
    its provisions must, therefore, be construed in that perspective.
    Referring to an earlier decision, this Court observed that Section 15
    is a clear departure from the general law that a statement made to
    a police officer is not permissible in evidence. Adverting to Kartar
    Singh (supra), it was observed that the Constitution Bench while
    upholding the vires of Section 15 repeatedly dealt on the severity of
    the said provision as one laying down altogether a new procedure
    and emphasized that provisions of the TADA Act and the TADA
    Rules must be scrupulously observed with particular reference to
    the provisions relating to recording of confessions. In the facts of
    that case, it was noticed that 15 to 30 minutes time was given to the
    accused for reflection before the actual confessions were recorded.
    This Court held that sufficient cooling off time was not given to the
    accused. It was also found that there was no evidence on record
    that the confessional statements were submitted to the concerned
    Magistrate. In the circumstances, this Court observed as under:
          13. Applying the aforesaid principles to the facts of the
          present case, we are of the opinion that adequate time had
[2025] 4 S.C.R.                                                             179

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


           not been given to any of the accused as they had been in
           police custody for almost 45 days in each case We also
           observe that there is no evidence on record to suggest that
           the special report envisaged under sub-rule (5) of Rule 15
           had been submitted to the Magistrate. The confessions
           cannot, therefore, be taken into account for any purpose.
21. Having surveyed the law on the subject, let us now advert to the
    three confessional statements.
22. The confessional statement of Mohd. Salim Zargar (respondent No. 1)
    was recorded on 16.09.1990 (sic) by PW-12, Shri AK Suri, SP. The
    following memorandum was appended to the confessional statement:
            The person named above who is presently lodged in BSF
            camp at Srinagar voluntarily expressed his willingness
            before me to make a clean-breast of his guilt. It was
            explained to him that he is not bound to make any
            confession and that if he does so, it may be used against
            him as evidence. Even after this he is willing to make a
            confession of his guilt. On further questioning him I have
            satisfied myself that he is making the confession voluntarily.
                                               Sd/ 16.09.90
                                                (A.K. SURI)
                                           SUPTD OF POLICE
                                          CBI/SIC-U, NEW DELHI.
     22.1 From the above, it is seen that respondent No. 1 was lodged
          in a BSF camp at Srinagar where his confession was recorded.
          But there is no mention where the confession was recorded.
          Further, the time when the confession was recorded was
          not mentioned. PW-12 also did not mention whether he had
          afforded any time to respondent No. 1 to reflect before making
          the confession which is most crucial. This statement is as
          vague as it can be. Thus, there is clear departure from the
          norms which renders the confession highly suspect.
     22.2 The record does not contain any statement in the form of
          questions and answers wherefrom it could be deciphered that
          PW-12 had reason to believe that respondent No. 1 was making
          the confession voluntarily. Further, in his evidence PW-12 stated
          that he was posted as SP, CBI in New Delhi. He was on a
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                          Supreme Court Reports


              visit to Srinagar on 06.08.1990 when respondent No. 1 was
              produced before him. Confessional statement of respondent
              No. 1 was recorded on the same day i.e. on 06.08.1990 at
              the BSF camp. It is thus apparent that since the confession
              was recorded on the same day, hardly any or no time for
              reflection was given which has vitiated the said confessional
              statement. There is one more aspect which needs to be
              noted. The certificate appended to the confessional statement
              is dated 16.09.1990 whereas PW-12 in his evidence stated
              that he had recorded the confession of respondent No. 1 on
              06.08.1990. This is again a grave discrepancy.
       22.3 It may be mentioned that this very confessional statement of
            respondent No. 1 was rejected by the Special Court in a prior
            case concerning the killing of one BK Ganju (File No. 6/CH,
            CBI Vs. Mohd. Salim Zargar, decision dated 21.12.2002) where
            the said confessional statement was deemed inadmissible
            and unreliable.
23. This Court in the case of Ravinder Singh Vs. Sukhbir Singh,7
    examined the principle of issue estoppel. That was a case arising
    out of a prayer for quashing of criminal proceedings under the
    Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
    Act, 1989. This Court explained the principle of issue estoppel in
    the following manner:
            25. The principle of issue estoppel is also known as
            “cause of action estoppel” and the same is different from
            the principle of double jeopardy or autrefois acquit, as
            embodied in Section 300 CrPC. This principle applies
            where an issue of fact has been tried by a competent court
            on a former occasion, and a finding has been reached in
            favour of an accused. Such a finding would then constitute
            an estoppel, or res judicata against the prosecution but
            would not operate as a bar to the trial and conviction of
            the accused, for a different or distinct offence. It would
            only preclude the reception of evidence that will disturb
            that finding of fact already recorded when the accused is
            tried subsequently, even for a different offence, which might


7   (2013) 9 SCC 245
[2025] 4 S.C.R.                                                         181

           State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


           be permitted by Section 300(2) CrPC. Thus, the rule of
           issue estoppel prevents re-litigation of an issue which has
           been determined in a criminal trial between the parties...
24. Therefore, applying the aforesaid principle the confessional
    statement of respondent No. 1 could not have been relied upon
    by the prosecution and was rightly rejected by the Special Court.
    Acceptance of the same confessional statement of respondent No.1
    would disturb the finding of fact already recorded in the previous
    criminal trial relating to the killing of one B.K. Ganju. In any case,
    the said statement is clearly vitiated by non-compliance with the
    procedural safeguards provided under Rule 15 and enumerated in
    Kartar Singh (supra).
25. This brings us to the confessional statements of respondent No.2,
    Mushtaq Ahmed Khan, and respondent No. 6, Mohd. Sadiq Rather.
    While the confessional statement of Mushtaq Ahmed Khan was
    recorded on 14.08.1990, that of Mohd. Sadiq Rather on 25.08.1990.
    Confessional statements of the above two respondents were recorded
    in the same manner as the confessional statement of respondent
    No.1; the only difference being that statement of respondent No.
    2 was recorded at the Joint Interrogation Centre (JIC), Srinagar,
    whereas statement of respondent No. 6 was recorded at JIC, Kot
    Bhalwal, Jammu. The memorandum appended to their confessional
    statements did not contain the time of recording of confession and
    from where they were produced; and also as to whether any time
    was given to the said respondents for reflection before recording of
    the confessional statements. This is a most crucial omission which
    has completely vitiated the confessional statements. That apart, no
    statements in the form of questions and answers were recorded by
    PW-12 to ascertain the voluntary nature of the confessional statements
    made by respondent Nos. 2 and 6. In addition to the above, nothing
    has been placed on record to show any authorization to PW-12 to
    record the confessional statements of the above respondents.
     25.1 PW-12 in his evidence deposed that he was on a visit to
          Srinagar on 14.08.1990 when respondent No. 2 was produced
          before him in the JIC and he had recorded the confession
          of respondent No. 2 on that day itself. Similarly, PW-12
          stated that he was on a visit to Jammu on 25.08.1990 when
          respondent No. 6 was produced before him in the JIC where
182                                                          [2025] 4 S.C.R.

                          Supreme Court Reports


            he had recorded the confession of respondent No. 6 on that
            day itself. Therefore, it is evident that since the confessional
            statements of the above two respondents were recorded on
            the same day of production, hardly any or no time was given
            to them for reflection which has completely vitiated the said
            two confessional statements.
26. Kartar Singh (supra) says that confession should be recorded in a
    free atmosphere. Recording of confessional statements in a heavily
    guarded BSF camp or in a JIC where the atmosphere for an accused
    would generally be daunting and overbearing cannot be said to be
    in a free atmosphere. It has come on record that the confessional
    statements so recorded were not accepted by the Court of Chief
    Judicial Magistrate whereafter those were sent directly to the Special
    Court which again is an infraction of the statute.
27. The Legislature had reposed great faith in the fairness and uprightness
    of the higher police officials in the rank of SP and above while conferring
    the drastic power of recording confessional statements of the accused
    persons upon them making the same admissible in evidence subject
    to fulfillment of the procedural safeguards. But we are afraid, in so
    far the present case is concerned, the procedural safeguards were
    given a complete go-bye. The Special Court has stopped short of
    observing that it was a case of abuse of power and authority. It is
    indeed a sad reflection as to how investigation and trial unfolded in
    this case where truth and justice, both for the victims and the accused,
    remained elusive. It is not for nothing that such draconian provisions
    have since been repealed. We say this and no more.
28. Thus, in view of the discussions made above, we do not find any
    error or infirmity in the view taken by the Special Court in acquitting
    the respondents. This is not even a case of plausible view. No other
    view is possible. Consequently, there is no merit in the criminal
    appeal which is accordingly dismissed.

                   CRIMINAL APPEAL NO. 1770 OF 2009
29. This appeal under Section 19 of the TADA Act by the State (CBI)
    assails the judgment and order dated 20.04.2009 passed by
    the Special Court in CBI Case No. RC 6(S)/1990 acquitting the
    respondents for the offences under Section 3(1) of the TADA Act
    read with Sections 120B, 302, 368 and 364 of the RPC.
[2025] 4 S.C.R.                                                      183

              State (CBI) v. Mohd. Salim Zargar @ Fayaz & Ors.


30. This Court vide the order dated 11.09.2009 had admitted the instant
    criminal appeal and directed listing of the same with Criminal Appeal
    No. 1681 of 2009. However, Criminal Appeal No. 1770 of 2009 (State
    Vs. Tahir Ahmed Mir and Anr.) was dismissed by this Court vide the
    order dated 04.12.2023 for non-prosecution qua respondent No. 1.
31. This criminal appeal arises out of the incident relating to kidnapping
    and subsequent murder of Shri H.L. Khera, the then General Manager,
    HMT Watch Factory, Srinagar allegedly by the respondents after
    entering into a criminal conspiracy to strike terror in the minds of
    the general public and thereby to compel the Government to release
    their associates.
32. Like the previous criminal appeal, here also the weapon of assault
    was not recovered. That apart, the eyewitnesses deposed that the
    respondents who were produced in court were not the accused
    persons. Ultimately, the entire prosecution case centered around the
    confessional statement of Mohd. Salim Zargar (respondent No. 2)
    recorded by Shri A.K. Suri (PW-3 here) which we have already
    rejected in Criminal Appeal No. 1681/2009.
33. For the reasons stated while dismissing Criminal Appeal No. 1681
    of 2009, the present criminal appeal also fails and is accordingly
    dismissed.

     Result of the case: Appeals dismissed.



     †
         Headnotes prepared by: Nidhi Jain