Holding

The Supreme Court held that the confessions were inadmissible, could not be used against co‑accused, and the prosecution failed to establish the "knowingly facilitates" requirement, so the trial court's acquittal stands.

Summary

The State of Rajasthan charged Ajit Singh and 18 others under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) for allegedly smuggling arms from Pakistan to Punjab for terrorist purposes. Seven of the accused made confessions before a Superintendent of Police under Section 15 of TADA, but the confessions were recorded after 40‑45 days of custody with only 15‑30 minutes of "cooling‑off" time and without the mandatory special report to the magistrate. The trial court found no evidence that the accused knowingly facilitated terrorist acts, that no weapons were recovered, and that the statutory presumption under Section 21 could not be invoked. Consequently, it acquitted all accused of the TADA offences, convicting only Ajit Singh under the Passport Act. On appeal, the Supreme Court upheld the acquittal, holding that the confessions were inadmissible due to non‑compliance with Section 15 and Rule 15, that such confessions could not be used against co‑accused, and that the prosecution failed to prove the essential element of "knowingly facilitating" under Sections 3(3) and 4(1) of TADA.

Issues considered

The admissibility of confessions recorded under Section 15 of TADA when procedural safeguards of Rule 15 are not complied with.
Whether a confession under Section 15 can be used as corroborative evidence against co‑accused.
Whether the prosecution proved the "knowingly facilitates" element required under Sections 3(3) and 4(1) of TADA.
Whether the presumption under Section 21 of TADA is attracted in the absence of recovered weapons.
The correctness of the trial court's acquittal of the accused.

Legislation cited

Arms Act
Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 25, s. 26, s. 27, s. 28, s. 29, s. 30
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 21, s. 3(3), s. 4(1)

Subjects

TADAconfession admissibilityprocedural safeguardsterrorist facilitationpresumption under Section 21arms smugglingevidentiary law

Judgment

-l
STATE OF RAJASTHAN A
v.
AJIT SINGH AND ORS.

OCTOBER 12, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.)
i

"..... ,, Terrorist and Disruptive Activities (Prevention) Act, 1987:
ss. 3(3), 4(1), 15 and 21-Terroristacts and disruptive activities- c
\ On the statement ofone ofthe accused that they had been smuggling
arms and ammunition, 19 persons prosecuted-Confessions of other
accused not indicating knowledge on their part that weapons were
smuggledfor use in terrorist activities-No question put to any accused
u/s 313 Cr.P.C. as to their involvement in any terrorist or disruptive
D
activity-HELD: On facts, sine qua non for applicability ofss. 3(3) and
4(1), i.e. "knowingly facilitates" commission ofthe offence, not made

~
" out~While recording confessions, provisions of s.15 and r.15 not
complied with-There is no evidence to show recovery ofweapons, or
use thereofin the manner laid down ins. 3, therefore, presumption u/s
E
21 not applicable-Designated court rightly acquitted the accused of
the charges.
s.15-Confessions recorded by Superintendent of Police-
Accused in police custodyfor about 45 days-15-30 minutes time given
to accused for reflection before recording confession-HELD: F
-1 Sufficient cooling off time was not given to accused-Special report
~ under r.15 (5) not submitted to Magistrate-Confessions rightly not
taken into accountfor any purpose by designated court-Terrorist and
Disruptive Activities (Prevention) Rules, 198 7.
According to the prosecution case, some Customs officials, G
while on patrol duty on the ludo-Pakistan Border in the State of
-f Rajasthan, suspecting a vehicle stopped it. A-1, the passenger in the
vehicle disclosed that they were returning from the house of' A-5',
who with the assistance of' A-2' had on several occasions brought
251 H
252 SUPREME COURT REPORTS (2007] 11 S.C.R.
\-- )

A arms and ammunition from Pakistan for use in Punjab so as to further
terrorist efforts towards creation ofKhalistan. 'A2' was said to have
confirmed the statement of A-1. An FIR was registered. The /

investigatfon led to arrest of many persons, out of whom 7 made
confessions before the Superintendent of Police (PW-8). 19 persons
B faced the trial and the designated court acquitted all of them of the
offences punishable u/ss. 3(3) and 4(1) of the 1987 Act and convicted ·~·

A-1 alone u/ss. 3/6 of the Passports Act, 1967.
The instant appeal filed by the State was confined to the
,•
C challenge of the judgment of acquittal passed by the trial court only
with respect to those seven of the accused-respondents who had
made confessions before PW-8. It was contended that a confession./
made under section 15 of the Act was per se admissible in evidenc~
and that such a confession could be used as corroborative of tt~e
confessional statement of the other co-accused; that 1the
D presumptions in favour of the prosecution under Section 21(1) of the
1987 Act placed a heavy <mus on the accused and that this onus was
not discharged. For the respondents it was contended that the
confessions made by the seven accused before PW-8 were not
voluntary, and were subsequently retracted. It was submitted that
E all the accused had been in police custody for 40-45 days when their
confessions were recorded and adequate time for reflection was not
given; that Rule 15 of the Terrorist and Disruptive Activities
(Prevention) Rules, 1987 which required strict compliance with the
safeguards stipulated therein before a confession could be recorded,
F too had been violated; and that, in any event the prosecution has
failed to make out a case u/ss. 3(3) and 4(1) of the 1987 Act.
Dismissing the appeal, the Court
HELD: 1.1. The Terrorist and Disruptive Activities (Prevention)
G Act, 1987 is a harsh penal statute and its provisions must, therefore,
be construed in that perspective. A bare perusal of sub-s.(3) of
Section 3 of the Act would reveal that it would be applicable only if
the accused "knowingly" facilitated the commission of a terrorist
act or any act preparatory to a terrorist act. It needs to be highlighted
H that the primary circumstance against all the accused are the
STATEv. AJITSINGH 253

confessions made by them and but for the confession of accused- A
appellant no. 1 none of the other confessions show or betray any
knowledge on the part of those making the confessions that the
weapons had been smuggled in for use in terrorist activity. It is also
significant that no question was put to any of the accused under
section 313 Cr.P.C. as to their involvement in any terrorist or B
·i disruptive activity. Similarly, a bare perusal of sub-section (1) of
Section 4 of the 1987 Act would also show that no evidence to bring
home the charge under this provision has been produced against
any of the accused. The sine-qua-non for the applicability of sub-
section (3) of Section 3 and sub-section (1) of Section 4 of the Act, C
that is, 'knowingly facilitates' the commission of the offence, is thus
not made out on facts. The decision of the designated court on this
aspect is well-merited.
[Para 6, 7 and 8] [259-A; 260-G, H; 261-A, B, E]
Kartm- Singh v. State ofPunjab, [1994] 3 SCC 569, relied on. D
1.2. Besides, the investigating officer (PW-13) admitted tn his
statement that no investigation was made to follow up the
confessions and disclosures of accused-appellant no. 1 that the
weapons that he had been smuggling from Pakistan had been
handed over to terrorists in Punjab. The designated court E
accordingly concluded that the confessional statement of accused-
appellant no. 1 made before PW 8 incriminated him alone and that
there was no evidence against any of the other accused.
[Para 7] [261-B, C, D, E] F
2. It will be seen that section 15 of the Act is a clear departure
from the general law that a statement made to a police officer is
not permissible in evidence. Therefore, the provisions of the Act
and the Rules must be scrupulously observed with particular
reference to the provisions relating to the recording of confessions. G
From Ext.P-18, the note recorded by PW-8, as a prelude to the
recording of the confession, it transpires that 15 to 30 minutes time
was given to the accused for reflection before the actual confessions
were recorded. Thus, sufficient cooling off time was not given to the
accused, in the background that they had been in police custody over H
-r

254 SUPREME COURT REPORTS [2007] 11 S.C.R.
f....-
A a long period of time of almost 45 days in each case. There is no
evidence on record to suggest that the special report envisaged under
sub-rule (5) of Rule 15 of the Terrorist and Disruptive Activitie~
(Prevention) Rules, 1987 was submitted to the Magistrate; The.
confessions cannot, therefore, be taken into account for any purpose.
B [Para 10, 12 and 14] [263-F-G; 264-D-F; 265-B]
. ' '\"
Ranjit Singh v. State of Punjab, (2002) 4 Crl.L.J. 4694; and
Kartar Singh v. State ofPunjab, [1994] 3 SCC 569, relied on.
Jameel Ahmed & Anr_ v. State ofRajasthan, [2003] 9 SCC 673,
.,
c distinguished.
3. In Navjot Sandhu 's case, this Court clearly repelled the
contention raised by the State that a confession made by an accused
could be used as against a co-accused. However, in the instant case,
A-6 who said that they received weapons from accused-appellant,
D is not corroborated by the latter who has not said a word as to
whether he had handed over any weapon to any person. There is -\_'
not even a suggestion in the evidence that the money that had
allegedly been handed over to some of the accused was towards r
payment for the Jonga or the camels used for smuggling arms from
E Pakistan to be used in Punjab. [Para 17] [269-D, E, F, G]
State (NCTofDelhi) v. Navjot Sandhu, [2005] 11SCC600, relied
on.
4. As regards presumption under section 21 of the Act that the
F arms and ammunition were to be used in terrorist activity and a heavy
)-
onus lay on the accused to rebut the same, suffice it to say that this
provision would be applicable only ifit is "proved" that the arms and . ).

ammunition had been recovered from the accused and had been used
in the manner laid down in section 3. On the contrary it is found that
G there is no evidence to show any recovery of weapons or that any of
the accused (other than accused-appellant) had any knowledge as
to the ultimate destination and end use of the weapons that had·been j---'----
\
brought in. The presumption under section 21(2) cannot, therefore,
be raised in the present case. [Para 18] [269-G; 270-A-B]
H CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
STATEv. AJITSINGH[HARJITSINGHBEDl,J.] 255
.. - -{
(

732of2001. A

From the Judgment and final Order dated 2.12.2000 of the
Designated Court for Rajasthan at Ajmer in TADA Spl. Case No. 20/
1992.
Naveen Kumar Singh, Shashwat Gupta and Aruneshwar Gupta for B
the Appellant.
J.S. Sodhi, G.S. Sodhi, Pankaj Kumar Singh, Vinod Tewari, J.P.N.
Gupta, Ravinder Jarwal, K.L. Janjani and Karan Singh Bhati for the
Respondents. c
The Judgment of the Court was delivered by
HARJIT SINGH BEDI, J. 1. This appeal under section 19 of
the Terrorist and Disruptive Activities (Prevention) Act 1987 (hereinafter
referred to as the "Act") has been filed against the judgment of the D
Designated Court dated 2nd December 2000 whereby all the accused
) have been acquitted for offences punishable under sections 3 (3) ~ 4
( 1) of the Act though Ajit Singh alone has been convicted under Rule 3/
• 6 of the Pass Port Rules 1950 and awarded a sentence of 6 months simple
imprisonment. The facts leading to the appeal are as under:-
.----- E
2. At about 10 a.m. on 12th August 1991 PW7 Hira Lal along with
PW9 Sada Nand, Narender Soni, Inspector Customs and several other
officers of the department were on patrol duty on the Indo Pakistan Border
in Jaisalmer district of Rajasthan. As they reached village Avaya, a Jonga
bearing No. RSS 3479 which was coming from the opposite direction F
,, was stopped by them as some suspicions had been raised. On enquiry it
transpired that the vehicle driver was Shri Ram Vishnoi and the passenger
f' was Ajit Singh@Jeeta who disclosed that they were returning from the
house of Mehardeen son of Allabachaya, a resident of village Avaya, who
with the assistance of one Abdul Aziz, had on several occasions brought G
arms and ammunition from Pakistan for transportation to Punjab so as
to further the terrorist effort towards the creation of Khalistan. Abdul Aziz
aforesaid was also interrogated and he confmned Ajit Singh' s statement.
Ajit Singh and Abdul Aziz were then handed over to the SHO Police
Station Nachna at 9.15 a.m. on 14th August 1991 on which a formal H
256 SUPREME COURT REPORTS [2007] 11 S.C.R.
)---

A FIR was registered. PW13 S.I. Amara Ram started the investigation which
revealed that as many 17 persons along with Ajit Singh and Abdul Aziz
had been involved in the smuggling activity and many of the suspects were
later arrested. Seven of the accused i.e. Ajit Singh, Abdul Aziz, Noordeen,
Mehardeen, Nihal, Sumar and Rasool were also produced before the
B Superintendent of Police, Jaisalmer, PW8 Shri Rajeev Dasot who
recorded their confessions under section 15 of the Act on different dates ~
between September 21, 1991 and February 28, 1992 and as a
consequence of the information received thereby, camels and vehicles
allegedly used in the smuggling were recovered. Mehardeen's statement
c in addition led to the recovery of a AK-56 rifle and two magazines with
44 cartridges. It appears that accused Sujia and Danu Ram were
discharged by the order of the court, whereas Laldeen was declared an
absconder and Noordeen died during the course of the trial. The other
accused were accordingly charged under Sections 3(3) & 4(1) of the Act
D whereas some of the accused were charged in addition for offences
punishable under the Arms Act and the Passport Act. The Designated
Court examined fifteen witnesses in all. Primary, reliance was placed on -'-
the statements ofKishan Ram PW5, PW? Hira Lal, Rajeev Basot PW8,
t
Sada Nand PW9 and Anara Ram PWl 3. The prosecution evidence was
then put to the accused and they denied their involvement and on the
E
contrary alleged that the Police Officers who were investigating the matter
had made demands for illegal gratification and on their refusal to meet
their demands they had been involved in a false case. They also produced
several witnesses in defence.
F 3. The trial court held that the confession given by Ajit Singh alias
~
Guru Lal to Customs Officer, PW? Hira Lal was liable to be believed as
.
Hira Lal's evidence was corroborated by the statement of Customs ' ),
Inspector PW9 Sada Nand. The trial court further observed that it would
have been appropriate for the officers who had investigated the matter
G and recorded the confession made by Ajit Singh in which he had stated. "'
)
that he had been smuggling arms to Punjab so as to facilitate the creation
~-
ofKhalistan but PW13 Anara Ram had admitted that he had made no
enquiries to verify the correctness of this statement or to make a further
investigation in that direction was a glaring circumstance in favour of the
H accused. The court then examined the statements of PW8 Rajeev Dasot,
STATE v. AJIT SINGH [HARJIT SINGH BEDI, J.] 257

SP of Jaisalmer who had recorded the confessions under section JS .of A
the Act and observed that no infirmity had been pointed out with respect
to the procedure adopted and though the Court could record a conviction
on the basis of the confession it would not be safe to do so on.this basis
alone and that it was appropriate that the confessional statement should
be corroborated by other evidence. The Court also noted that though Ajit B
had admitted his involvement in terrorist activities none of the other
accused had made incriminating confessions. The court also observed tha,t
though the confession made by an accused could be used against a co:.
accused but it was clear from the confessional statements that none of
the accused had admitted that they had been aware of Ajit Singh' s c
involvement in terrorist activities and the mere fact that they had accepted
that they had received payment for assisting him in smuggling arms and
ammunition did not by itself indicate that they were aware of the end use
of the weapons and as such the rules of prudence required evidence
beyond their confessions to support the prosecution story. The court then · D
concluded that the only evidence which was available against the accused
were the recoveries of Rs.5,000/- and a camel from Abdul Aziz and ·
camels from Mehardeen, Mohammed, Kasam, Ibrahim, Naseer, Nihal,
Rasool and Kamardeen, a Jonga Jeep from Shri Ram and another Jeep
from Danu Ram (since discharged) but rejected the inference of culpability E
holding that there was no evidence to show that the jeeps or the camels
and the cash had been used in the attempt to smuggle arms and
ammunition from Pakistan. The trial court accordingly acquitted all the
accused for the offences punishable under Sections 3(3) and 4(1) of the
Act and under the Arms Act and on the basis of the above discussion, F
only Ajit Singh was convicted for having violated the Passport Rules. This
appeal at the instance of the State has been filed against the judgment of
acquittal.
4. We have heard the learned counsel for the parties at great length.
The learned counsel for the State appellant has, at the very outset, and G
fairly, pointed out that he was confining his challenge only with respect to
those of the accused respondents who had made confessions before Shri
Rajeev Basot PW8, as admittedly no evidence against the other accused
had come on record. He has drawn our attention to Jameel Ahmed &
Anr. V. State of Rajasthan [2003] 9 sec 673 to contend that a H
258 ·SUPREME COURT REPORTS [2007] 11 S.C.R.

A confession made under section 15 of the Act was per-se admissible .in
evidence and that such a confession could be used as corroborative of
the conf~ssional statement of the other co-accused. He has also argued
that the presumptions in favour of the prosecution under section 21 ( 1) of
the Act placed a heavy onus on the accused and that this onus had not
B been discharged in the course of the trial. He has also submitted that the
statements of the Customs Officers with regard to the confessions made
by Ajit Singh and Abdul Aziz had also to be taken as a corroborative
factor vis-a-vis these two accused. It has finally been pleaded that it was
clear from the statements of the accused and the other evidence that Ajit
C Singh and Mehardeen had committed offences under section 25(3) of the
Arms Act as well.
5. Mr. J.S. Sodhi the learned counsel for some of the accused has,
however, submitted that no offence even prima facie under the Act had
been niade out against the accused and that it could, if at all, and its best
D be said for the prosecution that an offence under section 3(3) of the Act
stood proved against Ajit Singh alone and no offence under section 4(1)
was made out against him as well. He has also urged that no question
had been put to any of the accused in their statements recorded under
section 313 of the Cr.P.C. as to their involvement in terrorist activities in
E Punjab which made the prosecution story completely bereft of merit.
Referring to the value of the confessions made by the seven accused, he
has pointed out that they were not voluntary, and had subsequently been
retracted, and the story projected was inherently improbable and that Rule
15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987
F hereinafter called "the Rules" which required strict compliance with the
safeguards stipulated therein before a confession could be recorded, too
had been violated. He has also urged that confession of an accused could
not be used as corroborative of the statement of another accused, as held
by the Supreme Court in State (NCT ofDelhi) v. Navjot Sandhu, [2005]
G 11 SCC 600. It has finally been pleaded that there was no evidence to
implicate any of the accused in the Arms Act case as Ajit Singh had at
no stage admitted that he had handed over the weapons to Mehardeen.
6. We have considered,the arguments advanced by the counsel and
H gone through the record carefully. At the very outset, it must ~e
STATEv. AJITSINGH[HARJITSINGHBEDI,J.] 259

emphasized that the Act is a harsh penal statute and its provisions must A
therefore be construed in that perspective. In Kartar Singh v. State of
Punjab, [1994] 3 SCC 569, this Court while upholding the constitutional
validity of the Act served a note of caution and laid do"Ml certain guidelines
in applying the statute to individual cases. It has therefore to be seen at
the very initial stage as to whether the case would fall within the mischief B
of sections 3(3) and 4( I) of the Act.
Section 2 is the definition clause. Sub-clause (d) of sub-section 0)
of section 2 of the Act describes 'disruptive activities' as having the same
meaning assigned to it under section 4 whereas 'terrorist Act' under sub-
clause (h) of sub-section (2) defines "Terrorist Act" as having the same C
meaning assigned to it in sub-section (I) of section (3) of the Act. We
reproduce sections 3 and 4 (1) and (2) of the Act hereinbelow:-
"Sec.3. Punishment for terrorist acts ... ( 1) Whoever with intent to
overawe the Government as by law established or to strike terror D
in the people or any section of the people or to alienate any section
of the people or to adversely effect the harmony amongst different
sections of the people does any act or thing by using bombs,
dynamite or other explosive substances or inflammable substances
or fire-arms or other lethal weaponS or poisons or noxious gases E
or other chemicals or by any other substances (whether biological
or otherwise) of a hazardous nature in such a manner as to cause,
or as is likely to cause, death of, or injuries to , any person or
persons or loss of, or damage to, or destruction of, property or
disruption of any supplies or services essential to the life of the F
community, or detains any person and threatens to kill or injure
such person in order to compel the Government or any other person
to do or abstain from doing any act, commits a terrorist act.
(2) Whoever commits a terrorist act, shall, -
(i) if such act has resulted in the death of any person, be. G
punishable with death or imprisonment for life and shall also be
liable to fine;
(ii) in any other case, be punishable with imprisonment for a
term which shall not be less than five years but which may extend H
+-
260 SUPREME COURT REPORTS [2007] 11 S.C.R.

...__ -
A to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates,
abets, advises or incites or knowingly facilitates the commission
of, a terrorist act or any act preparatory to a terrorist to act, shall
be punishable with imprisonment for a term which shall not be less
B
than five years but which may extend to imprisonment for life and
shall also be liable to five."
-4.-

Section 4. Punishment for disruptive activities. - (1) Whoever
commits or conspires or attempts to commit or abets, advocates, ...
c advises, or knowingly facilitates the commission of, any disruptive
activity or any act preparatory to a disruptive activity shall 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.
D (2) For the purposes of sub-section (1 ), "disruptive activity" means
any action taken, whether by act or by speech or through any other
media or in any other manner whatsoever,- ~

(i) which questions, disrupts or is intended to disrupt whether
E directly or indirectly, the sovereignty and territorial integrity of India;
.
-(.,.

or
(ii) which is intended to bring about or supports any claim, whether
directly or indirectly, for the cession of any part of India or the
secession of any part oflndia from the Union."
F
7. The question which must be posed at the outset is as to whether
>---
the activities of the accused as alleged by the prosecution fall within the
~
parameters of Section 3(3) and 4(1), the two provisions under which they
have been charged. A bare perusal of Section 3(3) would reveal that it
G would be applicable only if the accused "knowingly" facilitated the
commission of a terrorist act or any act preparatory to a terrorist <;iCt. It
needs to be highlighted that the primary circumstance against all the accused
are the confessions made by them and but for the confession of Ajit Singh .J_-

none of the other confessions show or betray any knowledge on the part
H of those making the confessions that the weapons had been smuggled in
STATE v. AJIT SINGH [HARJIT SINGH BEDI, J.] 261

for use in terrorist activity. It is also significant, and we have perused the A
statements very carefully, that no question was put to any of the accused
under section 313 of the Cr.P .C. as to their involvement in any terrorist
or disruptive activity. The sine-qua-non for the applicability of sub-section
(3) of Section 3 and sub-section (I) of Section 4 of the Act that is
'knowingly facilitates' the commission of the offence is thus not made out B
on facts. We have in addition gone through the statement of PW13 Ana,ra
Ram, the investigating officer, and he admitted that no investigation had
been made to follow up the confessions and disclosures of Ajit Singh that
the weapons that he had been smuggling from Pakistan had heen handed
over to terrorists in Punjab, although, he admitted that a Deputy c
Superintendent of Police, one Diiip Singh, had come from Punjab and
had told him that Ajit Singh was indeed a hardened terrorist. Anara Ram
also admitted that he had received a letter from Dilip Singh to that effect
but had not made a mention of this communication in his case diary and
had not even appended it with the challan. The trial court has, therefore, D
in our view rightly observed that had an investigation been directed towards
the terrorist activities in Punjab, the possibility that something more
incriminating against the accused could have been revealed but in the
absence of any evidence a decision in favour of accused was liable to be
taken. The court accordingly concluded that the confessional statement E
of Ajit Singh made before PW 8 Rajeev Basot incriminated him alone in
terrorist activities and that there was no evidence against any of the other
accused.
8. A bare perusal of sub-section (1) of section 4 would also show
that no evidence to bring home the charge under this provision has been F
produced against any of the accused. To our mind, the decision of the
designated court on this aspect too is well-merited.
9. The learned counsel for the appellant has however laid great
emphasis on the value of the confessions made bY. seven of the accused G
under section 15 of the Act to Shri Rajeev Basot PW8 Superintendent
of Police Jaisalmer. Section 15 of the Act and Rule 15 of the Rules are
reproduced hereinbelow:-
"Sec.15. Certain confessions made to police officers to be taken
into consideration.- (1) Notwithstanding anything in the Code or H
t--

262 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 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 either in writing or on any
mechanical device like cassettes, tapes or sound tracks from out
B 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
c 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, ifhe does so, it may be
D used as evidence against him and such police officer shall not
record any such confession unless upon questioning the person
making it, he had reason to believe that it is being made voluntarily." "\..
Rule 15. Recording of confession made to police officers. -(1) A
confession made by a person before a police officer and recorded -l
E by such police officer under section 15 of the Act shall invariably
be recorded in the language in which such ~onfession is made and
ifthat 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.
F
(2) The confession so recorded shall be shown, read or played
back to the person concerned and if he does not understand the r
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.
G
(3) The confession shall, if it is in writing, be-
(a) signed by the person who makes the confession and .J----

(b) by the police officer who shall also certify under his own hand
H
STATE v. AJITSINGH [HARJITSINGHBEDI, J.] 263

that such confession was taken in his presence and recorded by A
him and that the record contains a full 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 does not, any confession he may make may , B
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. C
Sd/--- Police Officer."
(4) Where the confession is recorded on any mechanical device,
the memorandum referred to in sub-rule (3) in so far as it is
applicable and a declaration made by the person making the D
)- confession that the said confession recorded on the mechanical
device has been conectly 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 E
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 version so received to the Designated Court which
may take cogniz.ance of the offence." F
10. It will be seen that section 15 is a clear departure from the general
law that a statement made to a police officer is not permissible in evidence.
In Kartar Singh 's case (supra), this Court while upholding the vires of
section 15 repeatedly dwelt on the severity of this provision as one laying
down altogether a new procedure and emphasized that the provisions of G
the Act and Rules must be scrupulously observed with particular reference
to the provisions relating to the recording of confessions.
11. A serious challenge has been made by Mr. Sodhi to the effect
that the confessions had not been recorded as per the procedure laid down H.
264 SUPREME COURT REPORTS [2007] 11 S.C.R.

A and that Rule 15(5) which provided for the submission of a special report
to the Illaka Magistrate had been infracted. It has also been emphasized
that all the accused had been in police custody for 40 to 43 days when
their confessions had been recorded and it appeared that adequate time
for reflection had not been given which raised the possibility that they had
B been hustled into their confessions. The learned counsel has cited Rarljit
Singh v. State of Punjab, (2002) 4 Crl.L.J. 4694 to argue that if
adequate time for reflection was not given a confession could be said to
involuntary. He has also drawn our attention to the statement of PW-8
Shri Rajeev Basot who deposed that before the confessions had been
c recorded the accused concerned had been released from police custody
and he had been asked as to whether he was being coerced into giving a
confessional statement and fore-warned that the confession could be used
against him.
12. We have perused the confession of the seven accused and the
D prefatory proceedings relating thereto. We first examine the confession
made by Noordeen. From Ext.P-18, the note recorded by Shri Ranjit
Dasot as a prelude to the recording of the confession, it transpires that
he had been produced before him at 12.30 p.m. on the 21st September
1991 and after the completion of the formalities the recording of the
E confession had started at 12.45 p.m. Likewise Ajit Singh @ Guru Lal
Singh had been produced before the officer at I0.50 a.m. and the
recording of the confession had started half an hour later. We have seen
the record of confessions of the other accused as well and it shows that
15 to 30 minutes time was given to the accused for reflection before the
F actual confessions were recorded. We accordingly find that sufficient
cooling off time had not been given to the accused, in the background >-- •
that they had been in police custody over a long period of time. It has \
been held in Rarljit Singh 's case (supra):
"According to the deposition of P.W.3 in cross-examination,
G the accused were in police custody 18-20 days prior to recording
of their confessional statements. P.W.3 has deposed that he gave
the requisite warning to the accused that they were not bound to
make the confessional statement and if they make it will be used

H
STATEv. AJITSINGH[HARJITSINGHBEDI,J.] 265

as evidence against them, but despite the warning they were A
prepared and willing to make the statement. After recording the
introductory statement in this behalf in question answer form he
still considered it proper to give them some time for rethinking and
for this purpose they were allowed to sit in separate room for some
time and brought to him after about half an hour and expressed B
their desire to make statement and thereafter the confessional
statement were recorded.
Before adverting to the facts said to have been narrated by the
accused as recorded in the two confessional statements, it deserves
to be noticed that in case the recording officer of the confessional C
statement on administering the statutory warning to the accused
fom1s a belief that the accused should be granted some time to
think over the matter, it becomes obligatory on him to grant
reasonable time for the purpose to the accused. In other words,
the cooling time that is granted has to be reasonable. What time D
should be granted would, of course, depend upon the facts and
circumstances of each case. At he the same, however, when the
time to think over is granted that cannot be a mere farce for the
sake of granting time. In a given case, depending on facts, the
·recording officer without granting anytime may straightway proceed E
to record the confessional statement but if he thinks it appropriate
to grant time, it cannot be a mechanical exercise for completing a
fom1ality.
In Sarwan Singh Rattan Singh v. State of Punjab, AIR F
( 1957) SC 63 7, where a Magistrate granted about half an hour
to the accused to think over and soon thereafter recorded the
j
confessional statement, this Court reiterated that when an accused
is produced before the Magistrate by the Investigating Officer, it
is of utmost importance that the mind of the accused person should
0
be completely freed from any possible influence of the police and
the effective way of securing such freedom from fear to the accused
person is to send him to jail custody and give him adequate time
to consider whether he should make a confession at all. It would
naturally be difficult to lay down any hard and fast rule as to the
H
,,_

266 SUPREME COURT REPORTS [2007] 11 S.C.R.

\ ._
A time which should be allowed to an accused person in any given
case."
14. Applying the aforesaid principles to the facts of the present case,
we are of the opinion that adequate time had not been given to any of
the accused as they had been in police custody for almost 45 days in
B
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. ..
c 15. The learned Government counsel has nevertheless argued that
in the light of the judgment of this Court in Jamil Ahmed's case (supra)
the confessional statement made by Ajit Singh implicated all the other
accused in terrorist and disruptive activities and as such could be used
against them as well. We notice Jamil Ahmad's matter pertained to an
D incident which happened in December 1990. In paragraph 22 this Court
while dealing with the questions as to whether sections 25 to 30 of the
Evidence Act would apply to confessions recorded under section 15 of
the Act observed: ""'
"Since the prosecution case in these appeals is primarily
E founded on various confessions ofthe accused involving themselves
as well as other co-accused, we will first consider the argument
of the appellants that, assuming that the confessional statements
have been proved to have been made in accordance with law and
voluntary and truthful, even then can such confessions be relied
F upon solely to base a conviction on the maker of the confession,
and if so, can it also be used against a co-accused and if so whether
>-·
such confession requires corroboration or not, and if so required
whether such corroboration need be general or should be of all
material facts in the confession. The argument of learned counsel
G in this regard is that the prosecution should prove the involvement
of the accused by other evidence first and the confession of an
accused can only be used as a corroborative piece of evidence
and not as a substantive piece of evidence, that too against the J-.....
' .
maker only. This argument is basically founded on an assumption
H that sections 25 to 30 of the Evidence Act also apply to the
STATEv. AJITSINGH[HARJITSINGHBEDl,J.] 267

confessions recorded under section 15 of the TADA Act. In A
support of this argument, the learned counsel relies on the line of
judgments of this Court which considered the scope of sections
25 to 30 of the Evidence Act and the probative value of such a
confession; one of such judgments is Mohd. Khalid v. State ofW.B
The passage relied upon by the appellants in support of this B
contention of theirs in the said judgment runs thus : (SCC
p.357,para 31)
"It is only when the other evidence tendered against the co-
accused points to his guilt then the confession duly proved could
be used against such co-accused if it appears to effect (sic) him C
as lending support or assurance to such other evidence."
16. It has accordingly been emphasized that the statement made by
the accused could be used one against the other. Mr. Sodhi has however
pointed out that the decision in Jamil Ahmed's case had been rendered D
;- without noticing thatthe words in section 15(1) of the Act (which have
been underlined above) that is "or co-accused, abettor or conspiratoi-"
had been inserted in the Act in 1993 and as such could not be
retrospectively applied to an incident of 12th August 1991. He has also
referred us to State (NCT of Delhi) V. Navjot Sandhu [2005] 11 sec E
600 to submit that this issue had been specifically raised and while noticing
the addition made in 1993 it had been observed that a confessional
statement recorded under section 15 would be sufficient to base a
conviction on the maker of the confession but on the other proposition
whether such a confession could be used against a co-accused was F
.1 another matter. This Court distinguished Jamil Ahmed case and observed
; thus in Paragraph 49:
"It is, however, the contention of the learned counsel Shri Gopal
Subramanium that Section 32(1) can be so construed as to include
the admissibility of confession of the co-accused as well. The G
omission of the words in POTA "or co-accused, abettor or
conspirator" following the expre3sion "in the trial of such person"
which are the words contained in Section 15(1) of TADA does
not make material difference, according to him. It is his submission
that the words "co-accused", etc. were included by the 1993 H
+

268 SUPREME COURT REPORTS [2007] 11 S.C.R.
1 ._

A Amendment of TADA by way of abundant caution and not
because the unamended section of TADA did not cover the
confession of the co-accused. According to the learned Senior
Counsel, the phrase "shall be admissible in the trial of such person"
does not restrict the admissibility only against the maker of the
B confession. It extends to all those who are being tried jointly along
with the maker of the confession provided they are also affected ,_
by the confession. The learned Senior Counsel highlights the crucial
words "in the trial of such person" and argues that the confession ...
would not merely be admissible against the maker but would be.
c admissible in the trial of the maker which may be a trial jointly with
the other accused persons. Our attention has been drawn to the
provisions of Cr.P.C. and POTA providing for a joint trial in which
the accused could be tried not only for the offences under POTA
but also for the offences under IPC. We find no difficulty in
B accepting the proposition that there could be a joint trial and the
expression "the trial of such person" may encompass a trial in which
the accused who made the confession is tried jointly with the other "-
accused. From that, does it follow that the corifession made
by one accused is equally admissible against others, in the
absence ofspecific words? The answer, our view, should be in
E
the negative. On a plain reading of Section 32(1), the
corifession made by an accused before a police officer shall
be admissible against the maker of the confession in the course
of his trial. It may be a joint trial along with some other
accused; but, we cannot stretch the language of the section
F
so as to bring the confession of the co-accused within the fold )..

of admissibility. Such stretching of the language of law is not
at all 1varranted especially in the case of a law which visits a
person with serious penal consequences [vide the observations
of Ahmadi,J.(as he then was) in Niranjan Singh v. Jitendra, SCC
G at p.86, which were cited with approval in Kartar Singh case]. We
would expect a more explicit and transparent wording to be
employed in the section to rope in the confession of the co-accused
within the net of admissibility on a par with the confession of the
maker. An Evidentiary rule of s~ch importance and grave
H
STATE v. AJIT SINGH [HARJIT SINGH BEDI, J.] 269

consequence to the accused could not have been conveyed in a A
deficient language. It seems to us that a conscious departure was
made by the framers of POTA on a consideration of the pros and
cons, by dropping the words "co-accused" ,etc. These specific
words consciously added to Section 15(1) by the 1993
Amendment of TADA so as to cover the confessions of the co- B
accused would not have escaped the notice of Parliament when
POTA was enacted. Apparently, Parliament in its wisdom would
1.
have thought that the law relating to confession of the co-accused
under the ordinary law of evidence, should be allowed to have its .
sway taking a cue from the observations in Kartar Singh case at c
para 255. The confession recorded by the police was, therefore,
allowed to be used against the maker of the confession without
going further and transposing the legal position that was obtained
under TADA. We cannot countenance the contention that the
words "co-accused'',etc. were added in Section 15(1) of TADA, D
ex majore cautela."
17. It is therefore clear that the Division Bench in Navjot Sandhu's
case clearly repelled the contention raised by the State counsel that a
confession made by an accused could be used as against a co-accused.
Some argument has also been addres~ed ( based on the observations in E
Jameel Ahmed and Navjot Sandhu 's cases (supra)) that even assuming
that confessions had been made it had still to be found whether they were
a true and accurate narrative of the facts. We have gone through the
confessional statements of the seven accused and we observe that
Noordeen who says that they had received weapons from Ajit Singh is F
not corroborated by Ajit Singh who has not said a word as to whether
he had handed over any weapon to any person. We reiterate that there
is not even a suggestion in the evidence that the money that had allegedly
been handed over to some of the accused was payment for the Jonga or
the camels used for smuggling arms from Pakistan to be used in Punjab. G
18. The learned counsel for the State has however submitted that in
the light of the presumptions drawn under section 21 of the Act it had to
be found that the arms and ammunition were to be used in terrorist activity
and a heavy onus lay on the accused. We find this provision would be H
270 SUPREME COURT REPORTS [2007] 11 S.C.R.

A applicable only if it is "proved" that the arms and ammunition had been
recovered from the accused and had been used in the manner laid down
in section 3. We have on the contrary found that there is no evidence to
show a recovery of weapons or that any of the accused (other than Ajit
Singh) had any knowledge as to the ultimate destination and end use of
B the weapons .that had been brought in. The presumption therefore under
section 21(2) cannot therefore be raised in the present case. In the light
of what has been held, we are of the opinion that the other arguments
raised by the learned counsel for the parties with regard to the recoveries
etc. pale into insignificance and do not require any discussion. We
c according!'.)' dismiss the appeal.
RP. Appeal dismissed.

..