Holding

The Supreme Court upheld the Designated Court’s acquittals, held the confession inadmissible due to non‑compliance with TADA safeguards, and confirmed only the conviction of respondent No.5 for possession of arms under Section 5 of the TADA Act.

Summary

The State of Maharashtra alleged that a gang led by Chota Shakeel conspired to murder politician Ramdas Nayak, arranging vehicles, firearms and ammunition. The Designated Court acquitted all accused of the murder and related offences, convicting only three of them under the Arms Act for possession of prohibited weapons. The State appealed under Section 19 of the TADA Act, challenging the acquittals and the admissibility of a confession recorded from accused Mushraf. The Supreme Court held that the prosecution failed to prove a link between the accused and the conspiracy or the murder, and that the confession was inadmissible because the safeguards under Section 15 of the TADA Act and Rule 15 of the TADA Rules were not properly complied with. Consequently, the Court confirmed the acquittals and upheld the conviction of only respondent No.5 (Gurnamsingh) for possession of arms under Section 5 of the TADA Act. The appeal was dismissed and the order of the Designated Court was largely affirmed.

Issues considered

The prosecution’s evidence was sufficient to establish a criminal conspiracy and the murder of the deceased.
Whether the confession recorded from accused Mushraf under Section 15 of the TADA Act is admissible in view of the procedural safeguards prescribed by the TADA Rules.
Whether the accused persons were positively linked to the arms recovered and to the commission of the murder.
Whether the Designated Court erred in acquitting the accused of all charges except those under the Arms Act.
Whether the conviction of respondent No.5 under Section 5 of the TADA Act for possession of arms is sustainable.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 3, s. 7
Indian Penal Code, 1860s. 120-B, s. 143, s. 147, s. 148, s. 149, s. 302, s. 307, s. 370, s. 392, s. 397, s. 468, s. 471
TADA Rules, 1987s. Rule 15, s. Rule 15(3)(b), s. Rule 15(5)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 19, s. 3(2)(i)(ii), s. 3(3), s. 3(5), s. 5, s. 6

Subjects

TADAconfession admissibilityarms possessioncriminal conspiracymurderevidentiary standardsdesignated courtprocedural safeguards

Judgment

A STATE OF MAHARASHTRA
r
v.
SIRAZ AHMED NISAR AHMED AND ORS.

MAY 7, 2007

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860: Sections 120-B, 143, 147, 148, 149, 302, 307, 370,
392, 397, 468 & 471-Arms Act, 1959-Sections 3, 7, 25, & 27 read with
~.

Arms Rules, 1962-Terrorist and Disruptive Activities (Prevention) Act, 1987-
c Rule 15-Criminal conspiracy and murder of deceased by firing upon them
with firearms-Firearms ceased from certain accused-Confession made by
one of the accused before police officer under TADA Rules-Charge-sheet
filed against the accused for various offences before Designated Court-
Designated Courts acquitted the accused of all the charges except some of
D them under the Arms Act for possession of arms-Correctness of-Held, on
evidence on record, the prosecution failed to connect the accused with
criminal conspiracy and commission of murder of the deceased-Safeguards
provided for recording the confession under the TADA Rules has not been ,;..
followed and hence, confession statement of the accused, is inadmissible in
evidence-Conviction of some accused under the Arms Act for possession of
E arms upheld.

According to the prosecution, respondents and five others hatched a
criminal conspiracy to murder the deceased, a politician, under the
instructions of their leader residing outside the country. The accused persons
arranged vehicles, firearms, ammunitions etc. to execute the plan. On the
F
day of the incident, the accused waited outside the house of the deceased with
their weapons in their car. As soon as the deceased came out of his house in
his car with his bodyguard, the accused fired at the car of the deceased ,.
resulting in death of the deceased along with his bodyguard. Two passersby
also got injured in the incident. All the accused were arrested by the police.
G The vehicles and weapons used in the crime were seized. According to the
prosecution, arms were seized from the possession of respondents 1, 2 and 3
which were brought for the commission of the crime; respondent no. 4 was
alleged to have harboured one of the assailants after the commission of the
murder of the deceased; respondent no. 5 was alleged to have been present at

H 40
STA TE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED 41
l the spot with the car to help the assailants to commit the crime; respondent A
no. 6 was alleged to have driven the car carrying the assailants and weapons
to the palce of murder; and respondent no. 7 helped to purchase the car for
the crime. A Test Identification Parade was conducted and six prosecution
witnesses identified two accused who were present at the scene of the crime.

The prosecution filed a charge-sheet for commission of the offences B
punishable under Sections 120-B, 143, 147, 148, 149, 302, 302 r/w 120-B,
302 r/w 149, 307 r/w 120-B, 307 r/w 149, 392, 392 r/w 120-B, 392 r/w 149,
,l 397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-B, 468, 468
r/w 120-B, 468 r/w 149, 471, 471 r/w 120-B, 471 r/w 149 IPC and under
Section 3 r/w 25, 7 r/w 27 (2 and 3) of the Arms Act, 1959 and under Sections
3 (2) (i) (ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities
c
(Prevention) Act, 1987 (fADA Act) before a Designated Court. The Designated
Court acquitted all the accused including the respondents from all the charges.
The Designated Court convicted respondent nos. 1, 2 and 3 for possession of
arms specified in Schedule 1 to the Arms Rules, 1962 in a notified area under
section 5 of the TADA Act and under section 3 r/w section 25 and section 7 D
r/w section 27 of the Arms Act.
.........
Disposing of the appeal, the Court

HELD: 1.1. Apart from the evidence ofrespondent nos. 1, 2 and 3 having
been in possession of the firearms, there is no other evidence on record to E
connect these accused with the conspiracy of committing the murder of the
deceased. There is no evidence brought on record by the prosecution to prove
that these very arms had been brought from outside the city. There is no
evidence to show that any of the arms found in possession of these accused
was used in commission of the crime. (Para 251 (51-E-Fl
F
-~ 1.2. Identification of respondent no. 6 by PW 7 in a test identification
parade would not carry the prosecution case any further because at the time
of the incident, the witness had not seen the respondent at the place of the
incident. Neither any firearm was recovered from the respondent nor was any
evidence led to prove the fact that he was engaged for driving the vehicle to
G
carry the assailants and the firearms for committing the murder as per the
conspiracy hatched by the accused persons. There is no evidence on record
to establish that on the relevant date he was seen driving the car. There is
_., lack of link evidence connecting this accused with the other accused persons.
Finding the accused at the place of incident might have raised strong suspicion,
H
42 SUPREME COURT REPORTS [2007] 6 S.C.R.

A but there is no evidence on the record to convert the suspicion into a proof
about the involvement of respondent no. 6 in committing the murder of the
deceased. [Para 28] [53-D-GI

1.3. While appreciating evidence, the Court must keep in mind that the
powers of observation differ from person to person. An object or thing
B happened might reflect in the image of a person's mind, whereas it may go
unnoticed on the part of another. While appreciating the evidence of witness,
the approach must be whether the evidence of the witness read as a whole
appears to have a ring of truth. Once that impression is formed, it is
,l_
undoubtedly necessary for the court to scrutinize the evidence, more
particularly keeping in view of deficiencies, drawbacks and infirmities pointed
c out in the evidence, as a whole, and evaluate them to find out whether it is
against the general tenor of the evidence given by the witnesses and whether
the earlier evaluation of the evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matter not touching the core of matter
in issue, hyper-technical approach by taking sentence out of context here or
D there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of the matter, would
not ordinarily permit rejection of the evidence as a whole.
~

[Para 33) (57-F-H; 58-A-B]

1.4. On an overall reading of the statements made by the witnesses, the
E evidence of recovery of a revolver and live cartridges from respondent no. S
was not in any way shaken by some of the infirmities pointed out by the
Designated Court. The discrepancies in the statements of the witnesses are
not infirmities, but those statements are consistent with the general tenor of
evidence. When the prosecution has proved conscious and exclusive possession
F of the house by respondent no. 5, the statements made by the witnesses cannot
be brushed aside on the ground that the prosecution has not proved the title
-
or ownership of the flat. The prosecution has proved the seizure of the revolver
and the live cartridges from respondent no. 5. Respondent no. S, having been
r ...
found in possession of a revolver, is guilty of the offence under Section S of
the TADA Act. As regards respondent no. 4, there is no substantive evidence
G to connect him with the commission of the crime.
(Paras 34, 35, 36, 37 and 38) [58-C-F; 59-A)

1.5. A confession statement to police is not admissible under the general
law connected with administration of criminal justice. Under Section 15 of
the TADA Act, if a confession inade by the accused to a police officer not
H
STATE OF MAHARASHTRA v. S!RAZ AHMED N!SAR AHMED 43
lower than the rank of Superintendent of Police is made admissible, it would A
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 voluntarily and without any force or pressure and allurement
or inducement. Any confession made in defiance of the safeguards provided B
therein, would not be relied upon by a court. (Para 491166-B, E, F, Cl

1.6. From a bare reading of the certificate given under Rule 15(3) (b) of
l
the TADA Rules, it is clear that it is necessary for a 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 C
him. It is further required to be recorded that he believed that the confession
was voluntarily made. He has to record that the confessional statement has
been taken in his presence and hearing 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 D
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 E
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. (Para 50) 167-B-D)

1.7. In the present case, on reading the certificate, it does appear that
compliance of Rule 15 (3) (b) of the TADA Rules has been done in a mechanical F
manner. It does only certify that it is the satisfaction of the recording officer
that the facts that the accused is not bound to make the confession and if he
does so it shall be used as evidence against him, were known to the accused.
However, there is no certification that the statement was recorded in the
presence and hearing of the police officer; nor the statement has been admitted
to be correct by the accused; and that the statement contained a full and true G
account of what was stated by the accused. (Para 51) (67-E-H; 68-AI

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (CB); Ayub v. State
_J
of Uttar Pradesh, (2002) 3 SCC 510; Simon & Ors. v. State of Karnataka,
[2004) 1 SCC 74; S. N. Dube v. N B. Bhoir & Ors., [2000) 2 SCC 254; Hardeep H
44 SUPREME COURT REPORTS (2007] 6 S.C.R.

A Singh Soha/ & Ors. v. State of Punjab through CBL (2004) 11 SCC 612 and
,,--
..
Lal Singh v. State of Gujarat & Anr., (2001) 3 SCC 221, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 166 of
1999.

B From the Final Judgment and Order dated 5.10.1998 of the Addi Judge.
Designated Court for Greater Bombay in TADA Special Case No. I0 of 1995.

V.N. Raghupathy (for Ravindra Keshavrao Adsure) for the Appellant.

Chinmoy Khaladkar (for Vishwajit Singh and S.K. Nandy) for the
c Respondents.

The Judgment of the Court was delivered by

P.P. NAOLEKAR, J. I. The State of Maharashtra has preferred this
appeal under the provisions of Section 19 of the Terrorist and Disruptive
D Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA Act")
challenging the judgment and order dated 5.10.1995 passed by the Additional
Judge, Designated Court for Greater Bombay in TADA Special Case No. I0 of
1995.

2. Twelve persons, as accused nos. 1-12, were charged and prosecuted
E for the offences punishable under Sections 120-B, 143, 147, 148, 149, 302, 302
r/w 120-8, 302 r/w 149, 307 r/w 120-8, 307 r/w 149, 392, 392 r/w 120-8, 392 r/
w 149, 397 r/w 120-B, 397 r/w 149, 379, 379 r/w 149, 379 r/w 120-8, 468, 468
r/w 120-8, 468 r/w 149, 471, 471r/w120-B, 471r/w149 of the Indian Penal
Code, 1860 (for short "IPC") and under Section 3 r/w 25, 7 r/w 27 (2 and 3)
of the Arms Act, 1959 and under Sections 3(2) (i) (ii), 3(3), 3(5), 5 and 6 of
F
the TADA Act by the Designated Court: During the trial before the Designated
Court, accused no. 2, viz., Feroz Abdullah Sarguru alias Feroz Konkani escaped
from the lawful authority of the police while the trial was still in process and
as he was not arrested thereafter the Designated Court neither considered any
evidence nor recorded any finding against the absconding accused. The
G Designated Court held that there was insufficient evidence against the 11
accused persons for the offences they were charged with and they were
acquitted, except accused no. 3 Rizwan Mohammad and accused nos. 4-6/
originallyrespondent nos. 3-5/respondent Nos. 1-3 (in the amended cause
title) for the offences punishable under Section 5 of the TADA Act and :......
sentenced them to rigorous imprisonment for five years with a fine of Rs.
~,.
H
STATE OF MAHARASHTRA"· SIRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 45

2,000/- each, in default of which rigorous imprisonment for another six months A
was imposed. All these four accused persons were also found guilty for the
offences punishable under Section 3 r/w Section 25 and Section 7 r/w Section
27 of the Arms Act. But, in view of the sentence awarded, separate sentence
was not awarded under these Sections. The State has challenged the acquittal
of 11 persons of the charges not found proved by the Designated Court. B
During the pendency of the proceedings before this Court, the appeal as
regards accused Abdullah Rahman alias Hamza, Mohd. Harun and Azim
Sardar Khan, who were originally respondent nos. I, 9 and 10 before us, was
dismissed for non-compliance of this Court's order dated 23.8.2002, with
respect to furnishing the correct and complete addresses of these respondents
for issuance of bailable warrants. Similarly, the appeal as regards Rizwan C
Mohd., who was originally respondent no.2, was dismissed on 27.2.2004 for
non-compliance of this Court's Order dated 8.2.1999 regarding issuance of
bailable warrants. Hence, we have before us respondent nos. 1, 2, 3, 4, 5, 6
and 7 who were originally respondent nos. 3, 4, 5, 6, 7, 8 and 11 whose names
are : Siraj Ahmed Nisar Ahmed Khan, Mohamed Firoz Ayub Khan, Rafiq Latif
Sheikh, Shafiq Latif Sheikh, Gumamsingh alias Chotu, Salim Karim Dingaonkar, D
Mohamed Mushraf Hussain Shiekh.

Factual Matrix

3. The factual matrix as per the prosecution's version and the evidence
led by the prosecution in the relevant background to prove the alleged E
conspiracy and the commission of the offences the accused charged for, is
as follows: That all the accused persons were members of the criminal gang
led by Chota Shakeel who was residing in Dubai and was controlling the
activities of the gang members from that place. In or around 1994, a decision
was taken by Chota Shakeel to eliminate one Ramdas Nayak who was the F
member of Mumbai Municipal Council. Accordingly, he disclosed his plan
and directed Sajid to make necessary arrangements to give effect to the plan.
Sajid approached these 12 accused persons and explained to them the
directions of their leader and assigned each one of them specific duties. It is
alleged that Sajid approached Feroz Konkani (absconding accused) and
informed him about the daily routine of Ramdas Nayak. He informed him that G
Ramdas Nayak leaves his residence in a white colour Ambassador car at
about 9 or 10 A.M. and Ramdas Nayak is provided with police protection of
one armed constable. Sajid made firearms and ammunitions available to the
accused persons and the directions had been issued to Rizwan to make
necessary arrangements for the shelter of the accused persons. Sajid had H
46 SUPREME COURT REPORTS (2007) 6 S.C.R.
..,.
A provided a .38 revolver to Feroz Konkani. a 9 mm pistol to one Soni and
revolvers to John and Akhtar. A few days before the fateful day on which
the gruesome murder of the deceased Ramdas Nayak along with the police
constable took place, the absconding-accused Feroz with .38 revolver, Soni
with 9mm pistol, John and Akhtar with revolvers, waited outside the house
of the deceased to implement their plan. However, they failed that day because
B the deceased had not come out of his residence till 11 A.M. Moreover, they
had some apprehension of the arms possessed by bodyguard of the deceased
and they thought that they were not adequately armed to bring into action
the plan set up by them. .>.._ ~

c gang at4. Dubai
Sajid conveyed his apprehension to Chota Shakeel, leader of the
who in tum asked him to collect sophisticated firearms from
Bharauch. They required a vehicle so as to collect those firearms at Bharauch
and finally transport them to Mumbai. Azim took Sajid to respondent no.7-
Mohd. Mushraf Hussain Shaikh who had a motor garage and asked him ta
arrange for the vehicle. Mushraf was aware of the activities of Chota Shakeel
D and the accused Azim and Sajid told him that they wanted to purchase a
motor car to be used in executing the murder plan of Ramdas Nayak. By way
of caution, they decided to purchase the vehicle in the name of a person who
,.4.

had come to Mumbai from Kerala; accused no. I-Abdul Hamza, who hailed
from Kerala, was also informed about the purpose for which the car was to
be purchased. He agreed to let them buy the car on his name. A Fiat car,
E bearing no. MMU-8373, was then purchased for Rs.60,000/- from Super Motor
Company. This purchase was made by Mushraf in the name of Hamza. On the
direction of Sajid, Mushraf got prepared a secret chamber in the car to carry
the weapons in the car from Bharauch and further to the place where the plan
was to be executed. A compartment was got prepared in the car so as to keep
F the arms concealed in it.

5. As per the conspiracy between the accused persons, Gumamsingh
alias Chotu-respondent no.5 was entrusted with the work of bringing the
-
arms from Bharauch. Gumamsingh along with absconding accused Feroz
Konkani took the car to Bharauch to collect the firearms from there. They
G collected various firearms including AK-56 and AK-47 rifles, ammunitions,
revolvers, pistols, etc. Since all the firearms provided to them at Bharauch ~·

could not be concealed in the secret chamber prepared in the car, they left
some of them with the intent to collect it later on from their man in Bharauch.
The absconding accused, Feroz Konkani, distributed those arms among Rizwan ).-

and respondent nos. 1-5. Thereafter, Gumamsingh-respondent no.5, along
H
STATE OF MAHARASHTRA r . SIRAZ AHMED NISAR AHMED [P P NAOLEKAR, J.] 47

with Feroz Konkani again went to Bharauch and collected the remaining A
firearms. Sajid stole a Hero Honda motorcycle, bearing no. BLC 5288, owned
by one Pareira, who had filed a complaint of theft of his vehicle in MIDC
Police Station.

6. After all the preparations, the accused persons arranged the vehicle,
fireanns, ammunitions, etc. for the commission of murder of Ramnayak. On B
August 24, 1994 they gathered near the house of accused Rizwan. Accused
Rizwan changed the number plate of the Fiat car from MMU-8373 to 8879 by
using cello-tape. They also changed the motorcycle number. Feroz Konkani,
the absconding accused, Soni, Gurnamsingh-respondent no.5 and John kept
the firearms in the Fiat car and decided to execute the plan on the next day C
morning. It was decided that Salim Karim Dingaonkar respondent no.6 would
drive the car to the place and they asked him to take away the car to Bandra.
They also disclosed to him that the fireanns were kept in the Fiat car.

7. On the fateful day, i.e., 25.8.1994, the absconding accused Feroz
Konkani along with Salim Karim Dingaonkar-respondent no.6 drove the Fiat D
car towards the house of Ramdas Nayak at Hill Road. Sajid, Soni, Akhtar and
Hazir - all absconding persons, had also reached there and they were waiting
in the adjoining hotel. Salim Karim Dingaonkar-respondent no.6 was standing
outside the Fiat car and Feroz Konkani and Soni were waiting inside the car
with their weapons ready. When the car of Ramdas Nayak came out of his
house on the road, the absconding accused - Feroz Konkani and the other E
person Soni came out of their Fiat car with their AK-47 rifles and went
towards the car of Ramdas Nayak. Soni fired at the car of Ramdas Nayak and
Feroz Konkani followed firing, thereafter. The driver of the Ambassador car
of Ramdas Nayak came out of the car and Feroz Konkani fired bullets on the
driver. The bodyguard-police constable Tadvi opened the front side door of F
the Ambassador car and came out with a machine gun and returned the fire.
Feroz Konkani rushed towards the bodyguard and pumped several bullets on
the bodyguard. Since the firing took place during the busy hours, commotion
took place and the persons on the street started running here and there. Feroz
Konkani asked Gurnamsingh-respondent no.5 who was present at the spot
and accused John to run away. Konkani and Soni, along with their fireanns, G
sped away from the place of incident on the motorcycle. As Soni sustained
injuries, they decided to abandon the motorcycle. Thereafter, they forced a
rickshaw puller, who was passing by the road, to leave the rickshaw by
frightening him with the firearms and they took it away. Both of them kept
the rifles at the backside of the rickshaw, which were later on recovered along H
48 SUPREME COURT REPORTS [2007] 6 S.C.R.

A with the rickshaw. The case of prosecution is that the eye-witnesses saw the
absconding accused persons Konkani and Soni when they started firing
bullets and they also saw Salim Karim Dingaonkar-respondent no.6 standing
near the Fiat car.

8. During the investigation, the police found that one retired person,
B who was passing by Bandra Medical Store, received bullet injuries on his
abdomen and he was treated at Bhabha Hospital. One salesman, namely,
Rizwan, who was also walking nearby Balaji Hotel, sustained bullet injuries
on his abdomen and was admitted in Babha Hospital. Ramdas Nayak and his
bodyguard-police constable were immediately rushed to Bhabha Hospital
C where the doctor on duty found them dead and declared them as such. The
police received infonnation that a motorcycle, bearing no. BLC 5882, is lying
on the road at the junction of road nos. 24 and 33 at Bandra (West) and later
on they found that its original number was changed.

Investigation and arrest
D 9. FIR was lodged by a police constable Gawli at the nearby Bandra
Police Station and the police had registered a case for the offences charged
against the accused persons. During the course of investigation, the police
found the abandoned Fiat car near the place of incident and they traced out
that it belonged to accused Hamza. Thereafter, the police also seized the
E motorcycle and the rickshaw along with the weapons.

l 0. On 17.l 0.1994, Feroz Konkani was arrested at Bangalore. At his
instance, Rizwan was arrested with fireanns on the same day. At the instance
of Rizwan, Gumamsingh-respondent no.5 was arrested on 19.10.1994. Rafiq
Latif Sheikh-respondent no.3 and Shafiq Latif Sheikh-respondent no.4 were
F arrested on 19. l 0.1994. Salim Karim Dingaonkar-respondent no.6 was arrested
on 19.10.1994. Mohd. Mushraf-respondent no.7 was arrested on 28.4.1995 at
Hyderabad.

11. On 20. l 0.1994, the police requested Special Executive Magistrate
G (SEM) Mr. Karnath to arrange for Test Identification (TI) parade and introduced
Feroz Konkani-absconding accused and Salim Karim Dingaonkar-respondent
no. 6 on TI parade. Konkani was identified by six witnesses, whereas five
witnesses identified Salim Karim Dingaonkar to be a person standing near the
Fiat car at the time of incident. Thereafter on 29. I 0.1994, these accused
persons were again put for TI parade and two witnesses identified them. On
H
STATE OF MAHARASHTRA"· SCRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.J 49

2.5.1995, again TI parade was organized wherein Harun Mohd. Hanif Shiekh A
was identified.

12. On 14.l l.1994, a preliminary statement of Rizwan was recorded by
S. Mohd. Syyad, Dy. Commissioner of Police, Special Branch-I , Crime
Investigation Department, Mumbai and he was remanded to police custody.
He was again produced for recording his confessional statement under Section B
15 of the TADA Act on 16.11.1994 and his confession was recorded by S.
Mohd. Syyad.

13. On 5.5.1995, a preliminary statement of Harun Mohd. Han if Sheikh
was recorded by T.A. Chauhan, Dy. Commissioner of Police, Parimandal-6,
Mumbai and he was again produced before him on 7.5.1995 and on that day C
his confession was recorded under Section 15 of the TADA Act.

14. On 5.5.1995 Mohd. Mushraf-respondent no.7 was produced beforr.
T.A. Chauhan, Dy. Commissioner of Mumbai Parimandal-6 and his preliminary
statement was recorded. Thereafter, he was again produced before him for D
recording his confessional statement on 8.5.1995 under Section 15 of the
TADA Act.

15. As per the prosecution's version, the motive to eliminate Ramdas
Nayak was that h'! was a leader of the BJP and was an elected Councillor of
BMC. Chota Sh:tkeel inform'!d accused persons that activities of Ramdas E
Nayak were causing hann to Muslim community and in the interest of Muslim
community, it was necessary to kill Ramdas Nayak. As per the instructions
and directions issued by the gang leader, a plan was hatched and successfully
executed. The accused-respondents were active participants in the conspiracy
of eliminating Ramdas Nayak and had actively taken part to execute the plan
set up by them by committing various acts in furtherance of their object to F
commit murder.

16. As only seven respondents are before us in the present appeal, we
shall consider the part played, as alleged by the prosecution, by these
accused persons in committing the offence(s) of which they have been charged. G

17. As per the prosecution, Siraj Ahmed Nisar Ahmed-respondent no. I
possessed anns which were brought from Gujarat for nefarious design to
commit the murder of Ramdas Nayak.

18. Mohd. Firoz Ayub Khan-respondent no.2 possessed arms which H
50 SUPREME COURT REPORTS [2007} 6 S.C.R.

A were brought from Gujarat for committing the murder of the deceased Ramdas
Nayak. He also allowed his STD booth to be used for conveying the message
to the gang leader, Chota Shakeel by the assailants just after the act of murder.

19. Rafiq Latif Sheikh-respondent no.3 possessed arms which were
brought from Gujarat for committing the murder of deceased Ramdas Nayak.
B
20. Shafiq Latif Sheikh-respondent no.4 harboured absconding accused
Feroz Konkani after the commission of the murder of the accused.

21. Gumamsingh-respondent no.5 drove the Fiat car which was used to
bring arms from Bharauch and kept some of the anns which had been brought
C from Bharauch. He was present at the spot to help the assailants in order to
commit the crime.

22. Salim Karim Dingaonkar-respondent no.6, was the driver of the car
on the fateful day who took the car carrying the assailants and the anns to
the place of murder. He was present at the spot to help the assailants in
D commission of crime.
.
23. Mohd. Mushraf-respondent no. 7 helped to purchase the Fiat car in
the name of Hamza. He also got a secret compartment prepared for carrying
arms.
E 24. As already mentioned, the Designated Court has convicted
respondent nos. I, 2 and 3 only for possessing arms specified in Columns 2
and 3 of Category I or Category III (a) of Schedule I to the Anns Rules, 1962
in a notified area under Section 5 of the TADA Act and under Anns Act, and
acquitted respondent nos. 4, 5, 6 and 7 from all charges.
F
25. The prosecution case is that accused-respondent no. 1 Siraj Ahmed
Nisar Ahmed Khan, accused-respondent no. 2 Mohd. Firoz Ayub Khan and
accused-respondent no. 3 Rafiq Latif Sheikh were aware of the conspiracy
hatched to kill Ramdas Nayak and they were asked to keep the weapons
brought from Bharauch. The weapons were seized from their possession. As
G per prosecution, accused Feroz Konkani gave infonnation that some fireanns
had been ·kept with these accused persons and on that information the police
party proceeded to recover the firearms from them. The police was accompanied
by a Panch witness, PW-22, whose name was not disclosed as he had asked
for protection to keep his name and address concealed. The Police Sub-
H Inspector (PW-51) deposed that on 19.10.1994 at the instance ofFeroz Konkani
STATEOFMAHARASHTRA "· SIRAZAHMEDNISARAHMED[P.P. NAOLEKAR,J.] SJ

1 they approached at a room at the first floor of a building where one garment A
factory was located in Ekta Nagar at Andheri. Feroz Konkani knocked at the
door and respondent no. 1 Siraj Ahmed Nisar Ahmed opened the door. On
being asked, he took out a gunny bag from beneath a cot and produced it
before the witnesses. They opened it and found one AK-4 7 rifle, 17 bullets
and one magazine. Panchnama was prepared and the weapons were seized.
Thereafter, Feroz Konkani took police party and the panch to a hut at the back B
side of Onkar Communication Centre in front of Copper Hospital. When
Konkani knocked at the door, respondent no. 2 Mohd. Firoz Ayub Khan
1 opened the door. Konkani asked him to produce the weapons and he took out
a gunny bag from beneath a cot. The police opened the gunny bag and found
two revolvers, two swords, three sharp edged weapons like knife or gupti and C
25 bullets, which were seized. Thereafter, Konkani took the police and the
panch to a room in a slum area at the back side of building no. 15, Park Site
at Vikhroli. Konkani got the door opened. Respondent no. 3 Rafiq Latif Sheikh
opened the door. On being asked by Konkani, he produced the weapons in
a plastic bag from the top of a cupboard. It contained one revolver and 13
bullets. A panchnama was prepared. The Designated Court has accepted the D
case set up by the prosecution as regards these accused for seizure of the
firearms and other arms from the accused-respondents and consequently
convicted them as mentioned hereinabove. Apart from this evidence of accused
having been found in possession of the firearms, the learned counsel for the
appellant did not point out any other evidence on record to connect these E
accused with the conspiracy of committing murder of Ramdas Nayak. There
is no evidence brought on record by the prosecution to prove that these very
arms had been brought from Bharauch. There is no evidence to connect the
arms found in possession of the accused with the arms which had been
alleged to have been brought from Bharauch. There is also no evidence to
show that any of the arms found in possession of these accused was used F
in commission of the crime.

26. As regards respondent no. 6-Salim Karim Dingaonkar, the case of
the prosecution is that he was engaged on the fateful day to drive the vehicle
along with the two absconding assailants; that he took them to the place of
incident on that day; and that he was present at the time of the incident. It G
is further the case of the prosecution that he left the place of incident along
with the two assailants immediately after the firing took place. To prove this
fact, the prosecution examined PW-7 whose name and address was kept
concealed. PW-7 stated that he was working as a licensee in a stall which was
situated on Hill Road in Bandra (West). On 25.8.1994 at about 9.15 a.m. he H
52 SUPREME COURT REPORTS [2007] 6 S.C.R.

A opened the stall. The owner of the stall was also present in the stall since
9.15 a.m. At about 10.00 a.m., he heard sound like bursting of crackers and
the persons were running helter- skelter and the adjoining shops were being
closed down. On hearing the sound, he came immediately out of his stall and
saw that the car of Ramdas Nayak was coming from the road near a mango
tree which was on the right side of the stall and the car was not moving
B properly. He saw Ramdas Nayak inside the car and two persons were firing
at the car. After the firing, he saw the two assailants walking towards Bandra
railway station. He also saw firing by these two assailants towards the
bodyguard and the driver of the vehicle. The driver fell down on the back side
of the car and the bodyguard of Ramdas Nayak fell down near the driver.
C Thereafter, the two assailants started walking towards the railway station and
two more persons followed the two assailants and the persons following the
assailants were having small firearms. He described one of the persons who
followed to be in the age group of 25 to 28 years, having medium built, height
of 5 to 5112 ft. and small hair on his head. He was carrying a black colour small
firearm which had a wooden colour handle. The said witness (PW-7) identified
D respondent no. 6 to be a person who had followed the assailants immediately
after the incident. This witness further stated that he was standing near a car
which was parked in front of the Union Bank. He identified the accused in
the identification parade as well as in the dock.

27. This witness was disbelieved for the identification of the accused
E to be a person standing near the car or present at the time of the incident
by the Designated Court on the reasoning that in connection with paragraph
8 of his deposition about the identification parade dated 20. l 0.1994, the SEM
Kamat (PW-33) had deposed that on 20.10.1994 Feroz Konkani and Salim
Karim Dingaonkar were identified by the witnesses and this witness for the
F first time stated that he identified one of the assailants and also the other
person because the said person was standing near a Fiat car which was
stationary in front of the office of Union Bank and that this person had gone
along with the assailants. When the attention of this witness was drawn to
respondent no. 6 during his cross-examination, .he replied that during the
G identification parade he identified respondent no. 6-Salim Karim Dingaonkar
as he was standing near the Fiat car. When this witness stated that two
persons had followed the assailants, in his examination-in-chief he did not say
that one of them was standing near the Fiat car.

28. The Designated Court further found discrepancy in the evidence of
H PW-7 with regard to Fiat car and concluded that the witness claimed that
STATE OF MAHARASHTRA''· SI RAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 53

when he returned from Bhabha Hospital and changed his clothes at his house A
and came to his shop, while he was on his way he saw the Fiat car. He further
stated that he did not see the Fiat car prior to recording of his statement in
Bandra Police Station. After the incident, the witness took Ramdas Nayak to
hospital and after return from hospital his statement was recorded by Bandra
Police and according to him prior to recording of his statement he had not
seen the Fiat car. That shows that prior to recording of his statement, he had B
not seen the accused near the Fiat car. It is, therefore, doubtful whether the
accused was present near the Fiat car at the time of commission of the crime.
There is a possibility that after the incident several persons had gathered and
PW-7 might have seen accused near the Fiat car, but at that time none of the
assailants was present at the place of incident and thus it cannot be said that C
PW-7 had seen the accused-respondent no. 6 Salim Karim Dingaonkar at the
time of the incident near the Fiat car. The Designated Court also recorded a
finding that as per this witness he had disclosed all the facts which he had
seen at the time of incident, but in his statement before the police he had not
mentioned the presence of Fiat car or the accused standing near the Fiat car.
The witness further stated that for the first time in the identification parade D
he remembered that he had seen the accused standing near the Fiat car.
Therefore, identification of accused-respondent no. 6 by this witness would
not carry the prosecution case any further because at the time of the incident
the witness had not seen the accused at the place of incident. On the basis
of the statement of this witness, the Designated Court has reached the E
conclusion that it might be that the accused was seen by this witness at the
place of incident as so many other persons who had gathered there, but the
witness could not establish his presence near the Fiat car at the time of
incident. Neither any firearm was recovered from this accused nor any evidence
was led to prove the fact that he was engaged for driving the vehicle to carry
the assailants and the firearms for committing the murder of Ramdas Nayak F
as per the conspiracy hatched by the accused persons. There is no evidence
on record to establish that on the relevant date he was seen driving the Fiat
Car. There is lack of link evidence connecting this accused with the other
accused persons. Finding the accused at the place of incident might have
raised the strong suspicion, but there is no evidence on record to convert the G
suspicion into a proof about the involvement of the accused-respondent no.
6 in committing the murder of Ramdas Nayak.

29. It is alleged by the prosecution that during the interrogation of
-/
Rizwan, he gave information to the police that out of the weapons transported
from Bharauch to Maharashtra some of them were handed over to H
54 SUPREME COURT REPORTS (2007] 6 S.C.R.

A Gurnamsingh-respondent no.5 and, accordingly, he took the police party to r
the place where respondent no.5 was residing. When they reached the house
of Gurnamsingh, Rizwan asked him to produce the weapons and Gurnamsingh
took out a bundle wrapped with paper from the backside of the cupboard in
his room and produced the bundle before the police. When the bundle was
opened by the police, they found a revolver and some cartridges and the
B same were seized. Recovery of revolver and cartridges was disbelieved by the
Designated Court on the ground that no independent witness had supported
the recovery. The prosecution has not led any evidence to prove that the
house in question, from where the recovery was made, was owned or
possessed by Gumamsingh-respondent no.5. It has come in evidence that
c one lady was present at the time of recovery of weapons inside the house
and Gumamsingh introduced her as his wife, but there is no evidence to
prove the fact that the lady present in the house was the wife of Gurnamsingh.
The house was situated in a multi-storeyed building and there were several
multi-storeyed buildings nearby from where the revolver and cartridges were
recovered. The recovery was made during the broad daylight. Police did not
D produce any evidence to prove the fact of visit of police to the place from
where the recovery was alleged, apart from absence of independent panch
witnesses. Shivajrao Dattatray Kalekar (PW-50), a police officer deposed that
prior to completion of panchnama he had made a search of the house but
could not find any incriminating articles. When the police had recovered the
E revolver and ammunition from Gurnamsingh on disclosure statement ofRizwan
that one revolver was kept with Gumamsingh, then there was no reason for
the police to conduct the house search and, therefore, it would indicate that
the police were not relying on the information given by the accused Rizwan
but they were trying to find out the accused on their own. That apart, when
the police had conducted the house search then there was every possibility
F that they had recovered the bundle from the back side of the cupboard. To
avoid these difficulties, Vinayak Pandurang Kadam (PW-55) deposed differently
from Shivajirao Dattatray Kalekar (PW-50) and replied that they did not search
the house at all and thus evidence about the recovery was suspicious. The
Court further held that there should have been a concrete evidence that it was
G accused Gumamsingh who was in possession of the house and the lady who
was present in the house was the wife of Gumamsingh, then it would have
been reasonable to accept the recovery. But, the absence of such concrete
evidence, and the fact that the police have not examined any person available
nearby the vicinity, sufficiently create doubts about this recovery. Apart from
r--
this, the weapon recovered from Gumamsingh was not used for committing
H the murder of Ramdas Nayak. There was no evidence that this accused had
STATE OF MAHARASHTRA v. SIRAZ AHMEDNISARAHMED (P.P. NAOLEKAR. JJ 55

I any common agreement with the rest of the accused to commit the murder of
A
Ramdas Nayak. On these findings, the Designated Court has acquitted
Gumamsingh from all charges.

30. We are not satisfied with the manner in which the evidence of the
witnesses has been dealt with and appreciated in regard to possession of
firearms by accused Gumamsingh by the Designated Court. It appears that B
in arriving at the findings that Gumamsingh was not in possession of the
revolver and the bullets, the Designated Court has mixed up the issue with
that of Rizwan's disclosure statement for recovery of revolver from
l
Gumamsingh.

3 I. To prove the recovery of firearm from the accused Gumamsingh, thec
prosecution examined the police officials and panch witnesses of the seizure
memorandum. PW-50 Shivajirao Dattatray Kalekar, who was posted at the
relevant time in the Office of DCB CJD Unit VII, in his deposition stated that
after the arrest of Rizwan, he wanted to make a disclosure statement and
accordingly Constable Mahadik was asked to bring the panch witnesses who
D
were brought by him. Rizwan told that for the purposes of committing the
murder of Ramdas Nayak, they had transported some firearms from Bharauch
and one of the .38 revolvers was kept with the accused Gumamsingh and now
he was ready to show the house of Gumamsingh. Rizwan was accompanied
by the witnesses and other police officials in an Ambassador car. Panchas
and the rest of the police staff followed them in other two jeeps. Rizwan asked E
the driver to take the car to the Lokhandwala Complex at Andheri (West).
When they reached Lokhandwala Complex, the driver was asked to take the
car near Gimar Building inside the complex. The witness, accused Rizwan,
police officials and panch witnesses proceeded towards the 4th floor of the
Gimar Building at block no. 402, as directed by Rizwan. The entrance door
of block no. 402 was closed. Then Rizwan knocked at the door and one
F
- ~ person opened the door from inside and came out. Accused Rizwan identified
the said person and told the witnesses that he was Gumamsingh. The police
party entered block no. 402. There they saw a lady inside the house.
Gumamsingh told them that the lady was his wife. Thereafter, Rizwan asked
(:Jumamsingh to give the firearms and the ammunition which were given to G
him. Gumamsingh went near a cupboard and took out a firearm from the
backside of the cupboard without opening the cupboard. The firearm was
wrapped in a paper. The witness collected the bundle from Gumamsingh,
_.J
removed the paper-wrapper and found that it contained .38 revolver. He also
.. saw nine live cartridges in the bundle with the revolver. The revolver engraved
H
56 SUPREME COURT REPORTS [2007] 6 S.C.R.
r
A the name "Smith & Wesson'' . The witness asked Gumamsingh whether he
was having any licence to possess the revolver and the cartridges. Accused
Gumamsingh informed the witness that he did not have any licence to possess
either the revolver or the cartridges. The revolver and the live cartridges were
seized and taken possession of. Thereafter, he continued writing panchanama
below the memorandum and completed the same. Prior to the completion of
B panchanama, the police party also searched the house of Gumamsingh, but
they could not find any other incriminating article. The witness stated that
the panchanama was written by him below the memorandum and he had read
over the contents of the panchanama to both the panchas and obtained the
signatures of the panchas below the panchanama. Memorandum and
c panchnam~. were Exhibit 137. The witness also identified in the court the
revolver seized from accused Gumamsingh vide Exhibit 13 7 (Article No. 9).
During cross-examination, the witness admitted that he did not enquire with
anybody about the title or occupation of block no. 402 but the accused
Gumamsingh and his wife were present in the block.

D 32. The other witness examined by the prosecution is another Police
Inspector-Vinayak Pandurang Kadam (PW-55) attached to DCB CID. He fully
supported the statement of PW-50 regarding the disclosure statement made .......
by Rizwan and the police party proceeding towards block no. 402, Gimar
Building on the information supplied by the accused Rizwan, the seizure of
the revolver and the cartridges, preparation of the panchanama and also the
E fact that accused Gumamsingh had introduced the lady who was present in
the flat to be his wife. In the cross-examination, however, this witness stated
that after the accused Gumamsingh had produced the revolver and the live
cartridges no search was made of block no. 402 by the police party. The
statement of these witnesses about the recovery of .38 revolver and the live
F cartridges was not connected with the accused by the Designated Court on
the ground that the exclusive possession by the accused of block no. 402 was
not proved by the prosecution. It was held by the Designated Court that
prosecution had not proved that th<" lady found in block no. 402 was the wife
of the accused Gumamsingh and, therefore, it could not be said that the
accused Gumamsingh was in exclusive possession of block no. 402 at the
G relevant time when the seizure of the firearm and the live cartridges was
effected by the police party. The Designated Court has completely overlooked
the fact that both the witnesses (PW-50 and PW-55) have specifically stated
that when the door of block no. 402 was opened and they entered the flat >--
a lady was standing there along with the accused Gumamsingh and the
H accused Gumamsingh introduced that lady as his wife. However, there was
STATE OF MAHARASHTRA v. SIRAZ AHMED NI SAR AHMED [P.P. NAOLEKAR, J] 57

- no cross-examination of these witnesses on this point. That apart, it w~s A
within the exclusive knowledge of the accused Gumamsingh of his relationship
with the lady found in the flat when the seizure was made and it would have
been for the accused to put the question in cross-examination of the witnesses
to bring out the fact that the lady had no relationship with the accused
Gumamsingh. Other factor which was taken into consideration by the
Designated Court is that why the police officials would make a search of the B
flat when the accused Gumamsingh himself had produced the revolver and
the live cartridges, by overlooking the fact that the investigation was in
progress with respect to a day-light murder, committed, of a political leader,
J
a sensational case and, as such, the police party would not have felt
complacent only on production of one firearm by the accused Gumamsingh. C
It was quite natural that they had been suspecting that block no. 402 might
have other arms and considering that factor they had made the seare;h of tht:
flat. There is misreading of the evidence by the Designated Court that the
search was effected prior to the completion of process of seizure of the
revolver. PW-50 had categorically stated in his evidence that after the seizure
of the revolver and the live cartridges he had started writing panchanama and D
prior to the completion of panchanama they also searched the house of the
accused Gumamsingh, ~ut they could not find any other incriminating articles.
It is natural for the police party to search for other arms while investigating
a serious crime so that :f any other arms are found those can also be included
in the document prepa:ed by them. E
33. The Designafed Court has rejected the evidence of both the witnesses
on consideration of other aspect that PW- 55 had stated that no search of
the flat was made by the police party. While appreciating the evidence, the
court must keep in mind that the powers of observation differ from person
to person. What one may notice, other may not. An object or thing happened F
might reflect in the image of a person's mind, whereas it may go unnoticed
on the part of another. It has not come out in the evidence or in the cross-
examination that PW-55 was also a party to the search of the flat along with
PW-50 after the arms were produced by the accused who had made a categorical
statement that he had made a search of block no. 402 before the completion
of the panchnama. While appreciating the evidence of a witness, the approach G
must be whether the evidence of the witness read as a whole appears to have
a ring of truth. Once that impression is formed, it is undoubtedly necessary
for the court to scrutinize the evidence, more particularly keeping in view the
_J
deficiencies, drawbacks and infirmities pointed out in the evidence, as a
whole, and evaluate them to find out whether it is against the general tenor H
58 SUPREME COURT REPORTS [2007) 6 S.C.R.

A of the evidence given by the witnesses and whether the earlier evaluation of
,..
the evidence is shaken as to render it unworthy of belief. Minor discrepancies
on trivial matter not touching the core of matter in issue, hyper-technical
approach by taking sentence out of context here or there from the evidence,
attaching importance to some technical error committed by the investigating
officer not going to the root of the matter, would not ordinarily permit rejection
B of the evidence as a whole.

34. On an overall reading of the statements made by PW-50 and PW-
55, we do not find that the evidence of recovery of .38 revolver and the live
cartridges from the accused Gumamsingh was in any way shaken by some
of the infirmities pointed out by the Designated Court. In fact, in our opinion,
c those discrepancies in the statements of PW-50 and PW-55 were not infirmities,
but those statements are consistent with the general tenor of evidence.

35. When the accused Rizwan was arrested and made disclosure
statement that he would point out the house of accused Gumamsingh to
D whom he had handed over a revolver, it is natural for the police party to take
accused Rizwan for seizure of the arms which, according to them, has a
connection with the crime committed. When the prosecution has proved
conscious and exclusive possession of block no. 402 by the accused
Gumamsingh, the statements of the witnesses cannot be brushed aside on
the ground that the prosecution has not proved the title or ownership of the
E flat.

36. It is not necessary at all for the prosecution to prove the ownership
of block no. 402, Gimar Building from where the firearm and the live cartridges
were recovered. It is sufficient for the prosecution to prove that the accused
Gumamsingh and his close relations were occupants of block no. 402 so as
F to exclude the possibility of other persons concealing and keeping firearms
in the premises of the flat. According to us, the prosecution has proved the
seizure of the revolver and the live cartridges from the accused Gumamsingh.

37. Under Section 5 of the TADA Act, any person found in possession
G of any arms and ammunition specified in Columns 2 and 3 of Category I or
Category III(a) of Schedule I to the Arms Rules, 1962 in the notified area, then
notwithstanding anything contained in any other law, would be punishable
with imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life and shall also be liable to fine. As per ,.._
the Arms Rules, 1962, Schedule I Category IIl(a), "revolver and pistols" are
H prohibited arms in the notified area. It is not in dispute that Mumbai is a
STATE OF MAHARASHTRA v. SI RAZ AHMED NISAR AHMED [P. P NAOLEKAR, l. J 59

' notified area. The accused Gurnamsingh having been found in possession of A
.38 revolver, is guilty of offence under Section 5 of the TADA Act.

38. As regards respondent no.4-Shafiq Latif Sheikh, we do not find any
substantive evidence to connect this accused with the commission of crime.

39. Now, we shall take up the case of respondent no.7- Mohd. Mushraf B
Hussain Shaikh who was acquitted by the Designated Court.

40. It is the prosecution case against accused Mushrafthat when all the
accused entered into conspiracy to kill Ramdas Nayak, they felt need to
collect anns, ammunitions and vehicles to transport the requisite anns and
ammunitions from Bharauch to Mumbai and thereafter to use the vehicle for c
transportation to the residence of Ramdas Nayak. Accused Mushraf was
conducting a motor garage and, therefore, accused Feroz Konkani and Rizwan
Mohd. approached Mushraf for making arrangement of car. They infonned
him their plan of killing Ramdas Nayak and requested him to find out some
vehicle to be purchased. On he being approached, Mushraf started search for
D
a suitable vehicle and he found that the owner of Super Motors had a car
for sale and accordingly purchased Fiat car No. MMU8373 from the employee
of Super Motors. The said car was used for transportation of weapons from
Bharauch to Mumbai and later on for the purposes of transport of the
accused assailants to the place of Ramdas Nayak. The police had seized the
same car from the place of incident. The Investigating Officer traced the E
owner of the car PW-I I Vijay Shah. In his statement before the Court, he has
admitted that he had sold the car to one Abbasbhai Saluji for the consideration
of Rs. 32,000/-. Abbasbhai Saluji was examined as PW-12 who identified
witness no. 11, the owner and transferor of the Fiat car. He further stated that
he sold the same car to one Abdul Salija. Abdul Salija was also examined as
PW-13 who had accepted that he had purchased the Fiat car from Abbasbhai
F
Saluji. Thereafter he wanted to sell it; therefore, he approached the vehicle
dealer Hanifbhai and Hanifbhai sold the car to a person from Kerala and paid
to him Rs. 50,000/-. When Hanifbhai was examined by the prosecution as PW-
6, he deposed that he was carrying on business in the name and style of
'Super Motors' at 107, Morland Road, near BEST Depot, Mumbai Central, G
Mumbai. He used to purchase old vehicles and sell the same. He further
deposed that in the month of April, 1994, one Abbasbhai had brought a Fiat
car and requested him to sell it. On 10.5.1994, he went to pilgrimage at Makka
_J
and returned to Mumbai on 19.6. 1994. On his return, he came to know from
, his employee that the car of Abbasbhai had already been sold but he could
not tell the police the name of the purchaser. We are unable to find any H
60 SUPREME COURT REPORTS [2007] 6 S.C.R.

A effective help from the previous owners of the Fiat Car to link the accused
persons with it. Prosecution was finally able to bring the employee of the
shop from where the Fiat car, alleged to be used by the accused persons, was
bought. However, no link could be established with the accused persons
which is clear as per the observations of the Designated Court that the
prosecution brought the employee in the witness box, but the employee was
B so afraid that he started shivering and before any question was asked to him
with regard to his name etc. the said employee collapsed in the witness box.
On 24.3.1998 when the matter was listed for evidence, prosecution could not
bring the witness in the witness-box.

C 41. In spite of the best efforts made by the prosecution, the prosecution
has failed to prove that the Fiat Car which was found standing at the place
of incident was purchased by accused Mushraf to link him with the other
accused persons and with the conspiracy which is alleged to have been
hatched by the accused.

D 42. Another piece of evidence was brought on record by the prosecution
to link Mushraf with the commission of the crime is that he was arrested from
a hotel at Hyderabad, and to prove this fact the prosecution has examined
PW-48 Deepak Deshpandey, the owner of Vaibhav Lodge, Hyderabad, who
claimed that the accused Mushraf was residing in his lodge since 21.3.1995
and that he was arrested from this lodge by the police. The evidence of PW-
E 48 shows that the accused Mushraf was residing in his lodge from 21.3.1995
to 28.4.1995. The incident took place at Mumbai on 25.8.1994 but the prosecution
has not produced any evidence to indicate that during August, 1994 to
March, 1995 the accused Mushraf was not present at Mumbai. The absence
of the accused from the place immediately after the incident could not be
p established by the prosecution to draw any inference that the accused was
absconding as he was connected with the commission of the crime.

43. It is urged by the learned counsel for the appellate-State that the
accused Mushraf has made a confession before a police officer authorized to
record the confession under Section 15 of the TADA Act, wherein the accused
G has admitted his guilt and his active participation in the commission of crime,
which is a substantive piece of evidence; and that the Designated Court has
committed an error in rejecting the confessional statement of the accused
Mushraf.

44. Under Section 15 of the TADA Act, notwithstanding anything
H contained in the Indian Evidence Act, a confession made by an accused -
STATE OF MAHARASHTRA v. SIRAZAHMEDNISARAHMED [P.P. NAOLEKAR,J.] 61

before a police officer not lower in rank than a Superintendent of Police which A
is 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. By Act No. 43 of
1993, such confessional statement was made admissible against the co-accused,
abettor or conspirator for an offence committed under the TADA provisions
or Rules made thereunder, provided that the co-accused, abettor or conspirator B
is charged and tried in the same case together with the accused. Sub-section
(2) of Section 15 casts an obligation on the part of the police officer to explain
; to the person making the confession that he is not bound to make a confession
and further to give a statutory warning that if he does so it may be used as
evidence against him. Rule 15 of the Terrorist and Disruptive Activities C
(Prevention) Rules, 1987 (for short "the TADA Rules") lays down the mode
of recording the confession and Rule 15(3)(b) requires the police officer to
make a memorandum at the end of the confession to the effect that he has
explained to the maker that he is not bound to make the confession and that
the confession, if made by him, may be used against him; and that he has
recorded the confession only on being satisfied that it was voluntarily made. D
:Rule 15(5) requires that every confession recorded under Section 15 shall be
sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate having jurisdiction over the area and the Magistrate shall forthwith
forward the recorded confession received by him to the Designated Court
taking cognizance of the offence. E
45. A Constitution Bench of this Court vide judgment delivered on I Ith
March, 1994 in the matter of Kartar Singh v. State of Punjab, reported in
(1994] 3 SCC 569, while upholding the constitutional validity of the TADA
Act, 1987, has laid down certain guidelines so as to ensure that the confession
obtained by the police officer not lower than the rank of Superintendent of F
Police is not tainted with any vice, but is in strict conformity with the well-
recognised principles and fundamental fairness. The said guidelines are as
under:

(I) The confession should be recorded in a free atmosphere in the
same language in which the person is examined and as narrated G
by him;
(2) The person from whom a confession has been recorded under
Section 15(1) of the Act, should be produced before the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate to whom
the confession is required to be sent under Rule 15(5) along with H
62 SUPREME COURT REPORTS [2007] 6 S.C.R.

the original statement of confession, written or recorded on
,, .
A
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
B 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
>- ....
c 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
D 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
E 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
F as evidence, asserts his right to silence, the police officer must
respect his right of assertion without making any compulsion to
r
give a statement of disclosure.

46. On the other hand, it is urged by the counsel for the respondent-
accused that although the confessional statement was recorded by the police
G officer after the judgment of the Constitution Bench was delivered, yet the
guidelines provided by the Court to safeguard and ensure the voluntary
nature of the confessional statement made to the police officer were not
-
complied with, apart from the fact that the evidence led by the prosecution
>--
does not indicate that the confession was made by the accused to the police
H officer voluntarily; and, therefore, the Designated Court has not committed
STATE OF MAHARASHTRA v. SIRAZ AHMED NISARAHMED [P.P. NAOLEKAR, J.] 63

any error in rejecting the so-called confessional statement given by the A
accused Mushraf.

47. The confessional statement of the accused Mushraf was recorded
by PW-42 T.A. Chavan. The confession was recorded on two dates. The
accused Mushraf was first produced before PW-42 on 5.5. 1995 and after
asking certain preliminary questions and ascertaining the voluntary nature of B
the statement he was going to make, he was sent back in the police custody
and was produced again on 8.5. 1995 for recording his confessional statement
from the police custody. PW-42, in his statement, stated that at the relevant
;
time he was posted as Deputy Commissioner of Police, Zone-VI in Mumbai.
His office was situated at Mulund Police Station. On 5.5.1995, he received a
letter from the Additional Commissioner of Police, Mumbai directing him that
c
the accused Mushraf had disclosed his intention to give a confessional
statement and he should, therefore, do the needful. On receipt of the
communication, he contacted PI Kadam who was the Investigating Officer
and directed him to produce the accused before him. The accused was
produced before him on 5.5.1995 at about 6.30 p.m. along with another accused D
Mohd. Harun. He recorded the statement of Harun first and immediately
thereafter he called the accused Mushraf in his chamber and after asking the
preliminary questions for ascertaining the wish of the accused to make voluntary
confession, he sent them back on 5.5.1995 to P.I. Crime of Mulund Police
Station to be kept in custody. The accused was recalled on 8.5.1995 for the
purpose of recording his confession to PW-42's chamber and thereafter
E
questions were asked to ascertain whether he was still willing to give the
confession and on ascertaining that he was so willing his statement was
recorded in a typed format by the typist. The contents of the confession were
explained to the accused who accepted the same and his signature was
obtained on the confessional statement. The confessional statement recorded F
on 8.5.1995 is Exhibit no. 120. However, we have noticed that in his cross-
examination, PW-42 admitted that he neither cared to ascertain the date of the
arrest of the accused nor confirmed as to where the accused had been kept
in custody from the time of his arrest till he was produced for recording of
his confessional statement. The witness also admitted that he had not read
the procedure given by the High Court for recording the confessional statement, G
which was a part of the criminal manual. In the cross-examination, when
provisions of Rule 15(3)(b) of the TADA Rules were brought to his notice,
he fairly admitted that the required certificate was not with the same words
_J
and language provided in the provisions. As per the officer, he had embodied
the gist of the requirements provided under the Rule for certificate to be given H
64 SUPREME COURT REPORTS [2007] 6 S.C.R.
~

A by the officer recording the confessional statement. We have noticed that the ,-
certificate does not mention that he had told the accused that it was not
binding on him to give the confessional statement. The officer also admitted
that he never asked the accused as to why he felt the necessity to give the
confessional statement. Admittedly, the accused was also not produced before
the Magistrate as laid down in the judgment of the f_;onstitution Bench.
B
48. On recording of confessional statement under Section 15 of the
TADA Act, a 2-Judge Bench of this Court in Ayyub v. State of Uttar Pradesh,
[2002] 3 sec 510 has held as under :

c
"l 8. Section 15 of the TADA Act altered the fundamental rules of
evidence given in the Evidence Act, which stood the test of time for
over a century. 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. The power to record judicial confession is
given to the Magistrate and strict and rigorous guidelines have been
D laid down in Section 164 Cr.P.C. That apart, many High Courts also
have framed rules giving detailed procedure for recording confession.
Confession is an admission of guilt. Normally, nobody would like to
admit his guilt as he is fully aware that the same would be used
against him. That apart, there is constitutional right for the accused
that he shall not be subjected to any 'testimonial compulsion'. Under
E Article 20(3) of the Constitution, the accused person has a protection
from being compelled to be a witness against himself. As the confession
made under Section 15 of the TADA Act is made admissible in
evidence, the strict procedure laid down therein for recording
confession is to be followed. Any confession made in defiance of
these safeguards cannot be accepted by the court as reliable evidence.
F
The confession should appear to have been made voluntarily and the
police officer who records the confession should satisfy himself that
the saro.e had been made voluntarily by the maker of that statement.
The recorded confession must indicate that these safeguards have
been fully complied with. "
G
Further, in Simon and Ors. v. State of Karnataka, [2004] l SCC 74 this Court
has held as under: --
"22. It is the duty of the recording officer to ensure that the
confession is made voluntarily and out of free will by the accused ).-

H without any pressure. Recording of confessional statement is not a
STA TE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 65

mechanical exercise. A duty has been cast and considerable amount A
of confidence has been reposed in a senior officer under Section 15
of the TADA Act in giving him the duty to record the confession and
making such a confession before a police officer admissible in
evidence."

In S.N. Dube v. N. B. Bhoir and Others, [2000] 2 SCC 254, a 2-Judge Bench B
observed as follows:

"31.. .. Though giving of the statutory warning, ascertaining
voluntariness of the confession and preparation of a contemporaneous
record in the presence of the person making the confession are
mandatory requirements of that rule, we see no good reason why the C
form and the words of the certificate and memorandum should also be
held mandatory. What the mandatory requirements ofa provision are
cannot be decided by overlooking the object of that provision. They
need not go beyond the purpose sought to be achieved. The purpose
of the provision is to see that all formalities are performed by the D
recording officer himself and by others to ensure full compliance with
the procedure and seriousness of recording a confession. We fail to
appreciate how any departure from the form or the words can adversely
affect the object of the provision or the person making the confession
so long as the court is able to conclude that the requirements have
been substantially complied with. No public purpose is likely to be E
achieved by holding that the certificate and memorandum should be
in the same form and also in the same terms as are to be found in Rule
15 (3) (b). We fail to appreciate how the sanctity of the confession
would get adversely affected merely because the certificate and the
memorandum are not separately written but are mixed up or because F
different words conveying the same thing as is required are used by
the recording officer. "

Also, in Hardeep Singh Sohal and Ors v. State of Punjab through C.B./,
(2004] 1I SCC 612, this Court has held as under:

"17 ... The certificate should have specifically stated that he had G
explained to the person making the confession that he was not bound
to make the confession and, if he does so, the confession he may
make may be used against him and that he believed that this confession
was voluntarily made and it was taken in his presence and recorded
by him and was read over to the person making it and admitted by H
66 SUPREME COURT REPORTS [2007] 6 S.C.R.

A him to be correct, and it contained a full and true account of the
statement made by him."

49. From the aforementioned statements of law enunciated by this
Court, it is apparent that considerable amount of confidence has been reposed
on the senior police officials for recording the confessional statement. A
B confession statement to police is not admissible under the general law
connected with administration of criminal justice, which is made admissible
under the TADA Act, and, therefore, the strict compliance of 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
C 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 Indian 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
D 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
E 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 voluntarily and without any force or
pressure and allurement or inducement. The Constitution Bench of this Court
F in Kartar Singh (supra) has also laid down the condition to establish the
voluntary nature of the confession.

50. Under sub-rule (3)(b) of Rule 15 of the Rules, the certificate which
is required to be given by the police officer should be as under:

G "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. lt 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
H of the statement made by him.
STA TE OF MAHARASHTRA v. SI RAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.l 67

Sd/- Police Officer" A
' .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 B
the confessional statement has been taken in his presence and hearing 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
.l. 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
c

- 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 D
relevant time these facts to the notice of the person whose confession is
going to be recorded.

51. In the present case, we have gone through the certificate given by
the police officer (PW-42) at the bottom of the confessional statement,
translated version of which is to the following effect:- E
"I am satisfied that the aforementioned confession has been given
by the accused voluntarily and that no pressure or threat has been
given to him. I believe that the accused knows that the statement will
be used as evidence in the Court and he also knows that he is not
compelled to give such statement. He has signed the statement after F
he has been explained the statement in Hindi. The statement
commenced at 9.00 and completed at 10.25."

From the aforesaid certificate, it does appear that compliance of Rule I 5(3) (b)
of the TADA Rules has been done in a mechanical manner. It does only
certify that it is the satisfaction of the recording officer that the facts that the
G
:.»
accused is not bound to make the confession and if he does so it shall be
used as evidence against him, were known to the accused. However, there is
. no certification that the statement was recorded in the presence and hearing
of the police officer; nor the statement has been admitted to be correct by
the accused; and that the statement contained a full and true account of what H
68 SUPREME COURT REPORTS [2007] 6 S.C.R.
A was stated by the accused. r

52. We have also noticed the fact that in spite of the directions issued
by this Court in Kartar Singh (supra), the accused whose statement was
recorded under Section 15 of the TADA Act on 5.5.1995 and 8.5.1995 was not
produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate
B to whom the statement is required to be sent under Rule 15(5) along with
original statement of confession. Instead, the accused was sent back to the
police custody after recording of his confessional statement. Though this
Court in later cases like S.N. Dube 's case (supra) and Lal Singh v. State of
Gujarat and Anr., [2001] 3 SCC 221 has held that compliance of the guidelines >
issued in Kartar Singh (supra) was not mandatory as they were not
C incorporated in the Act or in the Rules, nevertheless, if proved to be followed
they would have added a ring of credibility to the prosecution story, particularly
when he was arrested on 28.4.1995 and there was ample opportunity to do
so.

53. The Designated Court on overall consideration of the evidence
D brought on recvrd in regard to the confessional statement recorded of the
accused Mushraf has not found it voluntary. We have been taken through
the reasoning given by the Designated Court. On considering the evidence
independently and legal provisions, we are of the view that the Designated
Court has not committed any error in rejecting the confessional statement of
E accused Mushraf. We do not fmd that the acquittal of Mushraf is contrary
to the established principles of law or that the evidence which has come on
record proves the case against Mushraf beyond reasonable doubt for his
involvement in the commission of crime.

54. For the aforesaid reasons, the order of acquittal recorded by the
F Designated Court in respect of all accused persons except accused no. 8/
respondent no. 5 herein-Gurnamsingh, is confirmed. We find respondent no.
5-Gurnamsingh guilty for the offence punishable under Section 5 of the
TADA Act and accordingly convict him. He is sentenced to suffer rigorous
imprisonment for five years and to pay a fine of Rs.2,000/- only and in default
to suffer rigorous imprisonment for six months. The said accused is on bail.
G He shall be immediately taken into custody to serve the sentence.
55. The appeal stands disposed of.

B.S. Appeal disposed of.

H