# NAZIR KHAN AND ORS v. STA TE OF DELHI

- **Citation:** [2003] Supp. 2 S.C.R. 884
- **Court:** Supreme Court of India
- **Decided:** 2003-08-22
- **Bench:** Doraiswamy Raju, Arijit Pasa Y At
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nazir-khan-and-ors-v-sta-te-of-delhi-19356
- **Pages:** 31

## Headnote

Terrorist and Disruptive Activities (Prevention) Act, 1987; Ss. 3 and 41
Pef!al Code, 1860-Ss. 121A, 122, 124A rlw Section 120(B) and 364A/
C Foreigners Act, 1946--Section 14:
Charges under TADA Act, Penal Code and Foreigners Act-Trial of
nine accused persons by TADA Court-Main accused allowed to leave the
country by Government of India in exchange of passengers of a hijacked
aeroplane--Court found six of the accused guilty of having committed various
offences-Convicted three of them to suffer death sentence, other three awarded
D life sentence and remaining two acquitted-On appeal, Held: when serious
crimes as contemplated in Section I 208 lPC rlw proviso to Section I 20(A)
(2) /PC have been committed, mere proof of an agreement between the
accused for commission of the crime is enough for conviction-Proof of overt
act not necessary-Terrorists escaping from their hideout-Exchange of
E firing-Killing of two police officials and a terrorist was an independent
act-Section 3(2)(i) of TADA Act not attracted since accused were not
allegedly involved or. conspired in the killing of two police officialsImposition of death sentence not warranted-However, on consideration of
gravity of the offence, the dastardly nature of the crime and consequences
therefrom, incarceration of all the six accused persons for a period of 20
F years would be appropriate-Not entitled to any remission in sentenceEvidence Act, 1872-Sections 25 and 27-Code of Criminal Procedure,
1973; Section 14-Sentencing.
G
H
Evidence Act, 1872:
Confessional statement-Admissibility under TADA Act vis-a-vis
Evidence Act-Distinction between-Discussed.
Words and Phrases:
'Voluntary confession '-Meaning of
According to the prosecution, nine accused persons including some
884
NAZIR KHAN v. ST A TE OF DELHI
885
foreigners belonging to militant organizations, hatched a conspiracy to kidnap A
foreign nationals in India with the object to pressurize Indian Government to
release some dreaded militants confined in jails. In execution thereof, they
kidnapped some foreigners and kept them in hideouts and sent demand letters
to British Embassy, American Embassy and the Government of India for release
of hardcore terrorists from jails in exchange of kidnapped foreigners. Police B
in a routine check up around the city of Ghaziabad became suspicious of a
person who had jumped from a house and ran away; they entered the house
and found therein one of the kidnapped foreigners. An FIR was lodged under
the provisions oflPC and TADA Act.
On the basis of information disclosed, Police arrested some terrorists/
accused and surrounded the house where other kidnapped foreigners were C
kept as hostages. Some of the terrorists, however, managed to escape; one
terrorist was killed and two police officials died during the operation. However,
the foreign nationals were released and the accused/terrorists arrested.
In the meanwhile, other militants hijacked an Indian Airlines D
passengers Plane, manipulated apd got released some hardcore militants
including the main accused in exF11ange of passengers in the hijacked plane.
The Designated Court, in the absence of the main accused, found six
accused/militants guilty of committing offences punishable under Sections
364, 121A, 122, 124A r/w Section 120B IPC; Sections 3 and 4 of the Terrorist
and Disruptive Activities (Prevention) Act; and Section 14 of the Foreigners E
Act and sentenced them. However, it acquitted the remaining two accused.
Hence the present appeal by the convicts.
It was contended for the appellants that the statement of the accusec'. as
recorded by the Police officials were not voluntary statements since made
under coercion/threat/undue influence; that their statements did not establish F
offences for which they had been convicted; that ~ince the ingredients of
Section 3(2)(i) of the TADA Act were non-existent, the conviction under them
was unfounded; that the High Court awarding death sentence to some of the
accused and life imprisonment t

## Text

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A
NAZIR KHAN AND ORS.
v.
STA TE OF DELHI
AUGUST 22, 2003
B
[DORAISWAMY RAJU AND ARIJIT PASA Y AT, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987; Ss. 3 and 41
Pef!al Code, 1860-Ss. 121A, 122, 124A rlw Section 120(B) and 364A/
C Foreigners Act, 1946--Section 14:
Charges under TADA Act, Penal Code and Foreigners Act-Trial of
nine accused persons by TADA Court-Main accused allowed to leave the
country by Government of India in exchange of passengers of a hijacked
aeroplane--Court found six of the accused guilty of having committed various
offences-Convicted three of them to suffer death sentence, other three awarded
D life sentence and remaining two acquitted-On appeal, Held: when serious
crimes as contemplated in Section I 208 lPC rlw proviso to Section I 20(A)
(2) /PC have been committed, mere proof of an agreement between the
accused for commission of the crime is enough for conviction-Proof of overt
act not necessary-Terrorists escaping from their hideout-Exchange of
E firing-Killing of two police officials and a terrorist was an independent
act-Section 3(2)(i) of TADA Act not attracted since accused were not
allegedly involved or. conspired in the killing of two police officialsImposition of death sentence not warranted-However, on consideration of
gravity of the offence, the dastardly nature of the crime and consequences
therefrom, incarceration of all the six accused persons for a period of 20
F years would be appropriate-Not entitled to any remission in sentenceEvidence Act, 1872-Sections 25 and 27-Code of Criminal Procedure,
1973; Section 14-Sentencing.
G
H
Evidence Act, 1872:
Confessional statement-Admissibility under TADA Act vis-a-vis
Evidence Act-Distinction between-Discussed.
Words and Phrases:
'Voluntary confession '-Meaning of
According to the prosecution, nine accused persons including some
884
NAZIR KHAN v. ST A TE OF DELHI
885
foreigners belonging to militant organizations, hatched a conspiracy to kidnap A
foreign nationals in India with the object to pressurize Indian Government to
release some dreaded militants confined in jails. In execution thereof, they
kidnapped some foreigners and kept them in hideouts and sent demand letters
to British Embassy, American Embassy and the Government of India for release
of hardcore terrorists from jails in exchange of kidnapped foreigners. Police B
in a routine check up around the city of Ghaziabad became suspicious of a
person who had jumped from a house and ran away; they entered the house
and found therein one of the kidnapped foreigners. An FIR was lodged under
the provisions oflPC and TADA Act.
On the basis of information disclosed, Police arrested some terrorists/
accused and surrounded the house where other kidnapped foreigners were C
kept as hostages. Some of the terrorists, however, managed to escape; one
terrorist was killed and two police officials died during the operation. However,
the foreign nationals were released and the accused/terrorists arrested.
In the meanwhile, other militants hijacked an Indian Airlines D
passengers Plane, manipulated apd got released some hardcore militants
including the main accused in exF11ange of passengers in the hijacked plane.
The Designated Court, in the absence of the main accused, found six
accused/militants guilty of committing offences punishable under Sections
364, 121A, 122, 124A r/w Section 120B IPC; Sections 3 and 4 of the Terrorist
and Disruptive Activities (Prevention) Act; and Section 14 of the Foreigners E
Act and sentenced them. However, it acquitted the remaining two accused.
Hence the present appeal by the convicts.
It was contended for the appellants that the statement of the accusec'. as
recorded by the Police officials were not voluntary statements since made
under coercion/threat/undue influence; that their statements did not establish F
offences for which they had been convicted; that ~ince the ingredients of
Section 3(2)(i) of the TADA Act were non-existent, the conviction under them
was unfounded; that the High Court awarding death sentence to some of the
accused and life imprisonment to remaining accused persons for committing
similar offences, could not be countenanced; and that statements of the G
kidnapped foreign nationals who had not appeared as witnesses could not be
utilized by the Court.
On behalf of the respondent-State, it was submitted that there had been
no retraction by the accused from their confessional statements; that the
statements were voluntary; that the recovery of arms/ammunition provides H
886
SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.
A ample substantiation to the confession made; that the plea that accused were
unaware of the decisions of the main conspirator was of no consequence since
the object and purpose of the conspiracy was clear and the manner of
organizing the activities to achieve the objective has been established; and
that merely because foreign nationals who were made hostages could not appear
at trial due to unavoidable circumstances that does not weaken the quality of
B evidence available on record.
Disposing of the death reference and appeal, the Court
HELD: 1.1. The essence of criminal conspiracy is an agreement to do
an illegal act and such an agreement can be proved either by direct evidence
C or by circumstantial evidence or by both, and it is a matter of common
experience that direct evidence to pr:ove conspiracy is rarely available.
Therefore, the circumstancesrproved before, during and after the occurrence
have to be considered to de,ide about the complicity of the accused. It is not
always possible to give affirrhative evidence about the date of the formation of
D criminal conspiracy, about the persons who took part in the formation thereof,
about the object, which the objectors set before themselves as the object of
conspiracy, and about the manner in which the object of conspiracy is to be
carried out, all this is necessarily a matter of inference. (899-D; 900-C-D)
Bhagwan Swarup Lal Blshan Lal etc. etc. v. State of Maharashtra, AIR
E (1965) SC 652, referred to. ·
Halsbury's Laws of England, 4th Edn. Vol.11, (Pp.44, 58)- referred to.
1.2. The provisions of Section 120-A and 120-B IPC have brought the
law of conspiracy in India in line with the English Law by making the overt
F act unessential when the conspiracy is to commit any punishable offence.
(900-D)
G
Regina v. Murphy, (1837) 173 ER 502, referred to.
Russell on Crime (12th Edn. Vol.I, P.202); "Criminal Law" by Glanville
Williams (Second Ed.P.382), referred to.
1.3. The essential ingredient of the offence of cri~inal conspiracy is
the agreement to commit an offence. In a case where the agreement is for
accomplishment of an act which by itself constitutes an offence, then in that
event no overt act is necessary to be proved by the prosecution. Where the
conspiracy alleged is with regard to commission of a serious crime of the
H nature as contemplated in Section 120B IPC read with the proviso to sub-
..
NAZIR KHAN v. ST A TE OF DELHI
887
section (2) of Section 120A IPC, then in that event mere proof of an agreement A
between the accused for commission of such a crime alone is enough to bring
about a conviction under Section 1208 and the proof of any overt act by the
accused or by any one of them would not be necessary. (901-E, F)
E.K. Chandrasenan v. State of Kera/a, AIR (1995) SC 1066; Kehar Singh
and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883; Ajay B
Agarwal v. Union of India and Ors., JT (1993) 3 SC 203; B.G. Barsay v. State
of Bombay; Yash Pal Mittal v. State of Punjab, [1977) 4 SCC 540 and
Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of
Maharashtra [1981) i SCC 443, relied on.
1.4. The legislature has set different standards of admissibility of l1 C
confessional statement made by an accused under TADA Act from those made
in other criminal proceedings. A confessional statement recorded by.a police
officer not below the rank of Superintendent of Police under Section 15 of
TADA Act is admissible, while it is not so admissible unless made to a
Magistrate under Section 25 of the Evidence Act. [904-E, F)
Sahib Singh v. State of Haryana [1997) 7 SCC 231 and Gurdeep Singh D
v. State (Delhi Administration), (2000) 1 SCC 498, relied on.
1.5. There is one common feature, both in Section 15 of TADA Act and
Section 24 of the Evidence Act that the confession has to be voluntary. Section
24 of the Evidence Act interdicts a confession, if it appears to the Court to be
the result of any inducement, threat or promise in certain conditions. The E
principle therein is that confession must be voluntary. Section 15 of TADA
Act also requires the confession to be voluntary. Voluntary means that one
who makes it out of his own free will inspired by the sound of his own
conscience to speak nothing but the truth. The crux of making a statement
voluntarily is, what is intentional, intended, unimpelled by other influences, F
acting on one's own will, through his own conscience. Such confessional
statements are made mostly out of a thirst to speak the truth which at a given
time predominates in the heart of the confessor which impels him to speak
out the truth. Internal compulsion of the conscience to speak out the truth
normally emerges when one is in despondency or in a perilous situation when
ht wants to shed his cloak of guilt and nothing but disclosing the truth would G
dawn on him. It sometimes becomes so powerful that he is ready to face all
consequences for clearing his heart. [904-G, H; 905-A, H; 906-A)
Stroud's Judicial Dictionary, 5th Edn. p.2633; Words and Phrases,
permanent edition, Vo/.44, p. 622; and Words and Phrases by John B.
Saunders, 3rd edition, Vol.4, p.401, referred to.
H
888
SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.
A
1.6. The trial Court was justified in its conclusions by holding the
accused appellants guilty. The accused was a participant in a big game planned,
he cannot take the advantage of being ignorant about the finer details applied
to give effect to the conspiracy hatched. The factual scenario described by the
co-accused in the statements recorded under Section 15 of the TADA Act shows
B their deep involvement in the meticulous planning done by the main accused.
The object and the purpos~ for which the conspiracy was hatched is clear
from the fact that messages were sent to Embassies, Government officials,
high dignitaries and the medias indicating the nature of the ransom, and the
consequences ifthe demanded ransom was not fulfilled. The circumstances
clearly show the role played by each of the accused in the conspiracy.
C
(907-H; 908-A, D, E)
D
State v. Nalini [1999) 5 SCC 253; Gurdeep Singh v. State (Delhi Admn.)
[2000) 1 SCC 498; Devender Pal Singh v. State of NCT of Delhi and Anr.,
(2002) 5 SCC 234 and Mohd Khalid v. State of West Bengal (2002) 7 SCC
334, relied on.
Principle and Digest of Law of Evidence, Vol. I, New Edn. By Justice
M Monir, referred to.
1.7. Confessional statement of A2 shows how he got acquainted with
bigger players/accused persons. His presence has also been established by
E confessional statement. The officials of the requisite rank had recorded the
confessional statements after meticulously following the procedural
requirements of the TADA Act and TADA Rules, 1987. It cannot be said that
the statement was not voluntary since there was no retraction at any point of
time and particularly, when they were brought before the concerned Magis~ratc
F .for confirmation of the fact that the statement had been recorded by the police
officials. (908-B, C, DJ
1.8. In the facts and circumstances of the case, the offences punishable
under Sections 121A, 122, 124A are clearly established and sufficiently and
properly stand substantiated, on the overwhelming materials available on
G record. However, except the killing of two police officials, no other death has
resulted. The ransom letters and the threats had not resulted in any death.
Further, the direct involvement of the present accused appellants in the killing·
of the two police officials has not been established by cogent evidence. The
deaths occurred when police surrounded the hideout and some terrorists
wanted to escape. It is not the case of the prosecution that the accusedH appellants were inside or that they escaped during the shoot out or that any
•
NAZIR KHAN v. STA TE OF DELHI
889
of them fired any shot or that there was any conspiracy in those regards. The A
action of those terrorists who successfully escaped by firing at the police
appears to be independent of the present conspiracy and not shown to be related
in any manner. There is nothing on record to involve or connect them with
the design, conspiracy or action for which the appellants are being now dealt
with. For the purpose of bringing in application of Section 3(2)(i) of the TADA B
Act, the terrorist act should have resulted in the death of any person. In other
cases clause (ii) operates. Sub-section (1) provides as to commission of which
acts can be considered to be a terrorist act. Her.ce, the imi.,osition of death
sentence is not at any rate a compulsion and' cannot be imposeo and only life
sentence can be imposed. No infirmity could be pointed out regarding
conviction and/or sentence for offences relatable to Section 3( 4) of the TADA C
Act or Section 14 of the Foreigners Act. Accordingly, they are maintained.
(912-H; 913-A-G)
Aung Hia's case (1931) 9 Rangoon page 404, referred to.
Indian law Commission's Second Report, referred to.
D
lord George Gorden's case (1784) 21 St Tr 485, 644, referred to.
1.9. The entire planning for commission of offence punishable under
Section 364A was masterminded and executed by the main accused who has
managed presently to go out of net of law. In his case, death sentence may E
have been appropriate. But in case of the co-conspirator accused appellants
similar approach is not warranted on the peculiar facts found/established.
(914-A, BJ
t.10. No distinctive feature has been indicated to impose two different
sentences i.e. death sentence for three accused persons and life sentence for F
remaining three accused persons. There was no appeal by the prosecution to
enhance the sentence in those cases where life sentence has been imposed. I(
would be appropriate to impose life sentence on all the six accused appellants.
Accordingly, conviction of Al, A3 and A8 under Section 3(1)(i) of TADA Act
is altered to Section 3(1)(ii) of TADA Act. However, their conviction under G
Sections 121A, 122 and 124 IPC and sentences imposed are maintained. The
conviction under Section 364-A read with Section 120B IPC is maintained.
However, considering the gravity of the offence and the dastardly nature of
the acts and consequences which have flown out and would have flown in
respect of the life sentence, incarceration for a period of20 years would be
appropriate. The accused appellants would not be entitled to any remission H
890
SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.
A from the imprisonment for a period of20 years. (914-B-E)
Ashok Kumar. v. Union of India AIR (1991) SC 1792 and Satpal v. State
of Haryana and Anr., (1992) 4 SCC 172, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 734 of
B 2003.
.
·
From the Judgment and Order dated 27.4.2002 of the Designated Court,
TADA, New Delhi, in FIR No. 658/94 in S.C. No.43 of2001.
WITH
C ·
· D.R. (Cr!.) No. 1/2003 and Cr!. A.No ......... D.14990/2002.
M.N. Krishnamani, Choudhary Shamsuddin Khan, Riaz Mohd, Moinuddin
Ansari, S. Pani and Debasis Misra for the Appellants.
K.K. Sud, Additional Solicitor General, Rajeev Sharma, Mrs. Anil Katiyar
D and D.S. Mahra for the Respondent.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Terrorists have no religion, no concept of
communal or social harmony and value for human life. Secularism, which is
E one of the great attributes of the Indian Constitution, is viewed differently by
some people. Communal harmony is not what they want. No religion propagates
terrorism or hatred. Love for all is the basic foundation on which almost all
religions are founded. Unfortunately, some fanatics who have distorted views
of religion spread messages of terror and hatred. They do not understand or
realise the"amount of damage they do to the society and as a result of these
F fanatic acts of misguided people innocent lives are lost, distrust in the minds ·
of communities replaces love and affection for others. Neighbours be!Onging
to different communities who have lived like brothers for ages start viewing
each other with suspicion and hatred. Their compassion is first replaced by
a sense of diabolic designs. The object of these misguided people - the
G , terrorists seems to be to spread a message of terror and strike fear in the
hearts of the citizens. The present case amply reflects the designs of some
people to perpetrate such acts. The temple of democracy in the country - the
Parliament - did not also escape the wrath of such people. Whoever did it,
wanted to disturb the equilibrium in the minds of the citizens. The millions
of peace loving citizens in the country are threatened to be put on a ransom
H· by a group of people.
NAZIR KHAN v. ST A TE OF DELHI [PASA Y AT, J.]
891
The background scenario with which the case at hand is concerned A
reveals the macabre designs of a group of such people. The Kingpin of the
whole case is a person called Ahmed Umar Sayeed Sheikh (described shortly
as 'Umar Sheikh') a British national and trained militant who allegedly received
training in Afghanistan and other places.
Prosecution version as unfolded during trial which led to conviction of B
the present appellants for offences punishable under Sections 364A, 121A,
122, 124A read with Section 1208 of the Indian Penal Code, 1860 (for short
the 'IPC') and Sections 3 and 4 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short the 'TADA Act'), and Section 14 of the
Foreigners Act, 1946 (in short 'Foreigners Act') is as under:
C
There were originally 9 accused persons who were tried in the Sessions
Case No.43/200 I by the learned Designated Court, TADA, New Delhi. Along
with the accused appellants three other persons faced trial. Two of them
namely, Haji Shamin and Mohd. Yamin have been acquitted. Interestingly,
before completion of ~rial, Umar Sheikh was allowed to leave the country D
along with other militants in exchange of passengers who had been made
hostages in Indian Airlines hijacked flight AI-814. In other words, the
mastennind of the whole conspiracy with which the present case is involved
escaped nets of law. The legitimacy of such action is not the subject matter
of consideration in these cases, though it has raised many eyebrows.
Interestingly this plea was raised by the appellants who submitted that they E
have become victims of unintended circumstance, while the mastennind and
kingpin has gone out mocking of the security network in the country, and
they are facing the blunt. This case does not seek to find out an answer to
such questions and therefore we are not dealing with them.
Nazir Khan (A-1 ), Abdul Rahim (A-3) and Naser Mohmood Sodozey (A8) who were Pakistani nationals have been convicted and sentenced to suffer
death sentence for offence punishable under Section 364A IPC read with
Section 1208 IPC. For the said offences, Narul Amin (A-2), Mohd. Sayeed (A~
F
4) and Mohmood (A-7) have been awarded life sentence. All the accused
appellants were subjected to a fine of Rs. 50,000 each under Section 364A IPC G
and in default to undergo RI for three years each. All the accused persons
were sentenced under Section 1208 read with Sections 364, and 364A IPC to
life imprisonment and each one of them was sentenced for the offence under
Sections 121A, 122 and 124A IPC and also to pay a fine of Rs. 10,000 each.
A-I, A-3 and A-8 were sentenced to death under Section 3(2)(i) of the TADA H
892
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.
A Act and a fine of Rs. 50,000 each. For the said offence, others were convicted
and sentenced to life imprisonment and a fine of Rs. 50,000 each. A-2 and A7 were sentenced to I 0 years imprisonment for harbouring and concealing the
terrorists under Section 3(4) of the TADA Act. All the six accused persons
were found guilty for the offence punishable under Sections 3(1) and 3(5) of
the TADA Act. Nazir Khan (A-1).and Naser Mohmood Sodozey (A-8) were
B also convicted under Section 14 of Jhe Foreigners Act for having entered
India without valid pennission and valid documents. They were each to
undergo 5 years rigorous imprisonment and a fine of Rs. 25,000 each. Since
the death sentence awarded to the three accused appellants is subject to
confinnation by this Court, Death Reference No. I of 2003 has been made to
C this Court.
To continue the narration of facts as presented by the prosecution,
Umar Sheikh visited sev.eral places in Pakistan and met ·Abdul Rauf and other
militants associated with Harkat-ul-Mujahiddin (in short 'HUM'). He came in
contact with other militant organizations like Jamet-e-Islamic and Al-e-Hadees.
D He was given a mission to perpetrate terrorist activities in India. He obtained
visa for India .and was given instructions to reach India and ·contact other
militants. He was advised to organize kidnapping of foreign nationals visiting
India and to pressurize Indian Government to release some dreaded militants
confined in jails oflndia. He met some people in lslamabad to get instructions.
E He came to Delhi in 1994. He was apprised of the militant network already
working and was asked to .contact Mohmood (A-7) a Mauzzin of Jama Masjid,
Delhi who was to introduce another militant named Farooque. He went to
Jama Masjid to meet Farooque. He met one Yusuf@ Sultan @ Mehboob at
Jama Masjid and was told that one Shahji was the main architect of the entire
operation.
F
Umar Sheikh was put up· in a .hotel named Ishak Guest Hous.e in Jama
Masjid Area on 27th July, 1994. Thereafter, he was.contacted by other militants
and he moved about in Delhi, Ghaziabad, Saharanpur etc. A number of hideouts were prepared in these areas by either purchasing properties or by taking
rooms on rent. Some of these hide-outs were in Nizamuddin, Sarai Kale Khan,
G Jama Masjid area, Suaiwalan area, Turkman Gate area of Delhi. Some other
hide-outs were at Ghaziabad and Saharanpur. Shahji arra11ged arms, ammunition
and money. Since Umar Sheikh was London born and had studied there, his
accent and command of English were used to develop .contacts with and seek
friendship with different foreigners, who were to be subsequently kidnapped.
H He did so on three occasions i.e. 29.9.1994, 16.10.1994 and 20.10.1994. A
NAZIRKHANv. STATE OF DELHI [PASAYAT,J.]
893
Maruti Van bearing registration No. DID 9016 was purchased from Karol Bagh A
by Abdul Rahim (A-3). British and American nationals were taken to the hideouts and were kept as hostages. However, on one occasion one foreign
national managed to escape. After these nationals were kidnapped they were
told that they have been taken as hostages and that they would face death
if they try to escape. The hide-outs were at Saharanpur, Ghaziabad where B
these persons were kept confined. It was a stroke of good luck that while on
a routine check around in Ghaziabad, police officials became suspicious and
struck gold while trying to find out as to why a person was suspiciously
running away when asked to stop. After kidnapping the four nationals their
photographs were taken by the militants and along with the photographs
demand letters were sent to British Embassy and American Embassy, and to C
various news agencies (in India and abroad), newspapers and the demand
was that the Government of India should release I 0 hard core terrorists from
jails. Copies of the demands were faxed to President, Prime Minister and other
dignitaries. Three days time was given for meeting the demands and the threat
was given that in case the demands were not met, the kidnapped foreigners
would be killed. As indicated above, it was just a fortunate and providential D
co-incidence that led the revelation of the conspiracy hatched. On 31.10.1994
a police party headed by Station Officer, Satya Dev Yadav of Police Station,
Mussourie near Ghaziabad, had gone to Nai Basti, Mussourie in connection
with the investigation of a theft case. Since they found a person running
suspiciously they entered the house from which the person had jumped out E
and ran away. They found the door bolted from inside and when nobody
responded, they broke open the door and entered the house. An American
national was found chained inside the room with a spike. He was unchained
and released and on enquiry he disclosed how he had been abducted from
Delhi. From there he was brought to the police station. His statement was
recorded and FIR under different provisions of IPC .and TADA Act was F
recorded. On the basis of his information, police officials were posted near
the house from where he had been rescued expecting that some members of
the militants organizations may visit the place being unaware of the police
action. Constables Sompal and Jagpal Singh saw three persons approaching
the house of Sufi Anwar where the captive was held. When they came near G
the house, constables challenged them and the three persons attacked the
constables by raising slogans and they wanted to kill the constables. One of
the constables was assaulted by two of them, while another constable was
over-powered by the third terrorist. One of the terrorists fired at the constable
concerned. Two of the terrorists fled away after firing and the third one was
arrested after he suffered a bullet injury. He was the main architect of the H
894
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.
A entire operation i.e. Umar Sheikh. Another case was registered and the police
became suspicious that what they have found out is the tip of the iceberg
and laid trap. Ultimately, the Maruti van DID 9016 was found in the possession
of Abdul Rahim (A-3) and Mohd. Sayeed (A-4). The police had become aware
of vehicle's number during interrogation of Umar Sheikh. The van was
surrounded while it was being driven by Mohd. Sayeed (A-4). He tried to run
B away while police officials !ried to apprehend him. However, the van was
stopped and accused persons were apprehended. On interrogation, all the
accused persons claimed to be the members of Harkut-ul~Ansar (in short
'HUA') a terrorist organisation. During interrogation police learnt about
kidnapping and abduction of three British nationals who were kept as hostages
C in a house at Saharanpur. Immediately, action was taken and the house where
the three British nationals were confined was surrounded. By throwing bombs
and taking advantage of the darkness some of the terrorists managed to
escape, but one of the terrorists was killed in an encounter. Unfortunately, two
police officials sacrificed their lives while trying to combat with the terrorists.
The three British nationals were abducted from Connaught Place in Delhi and
D were found to be chained when they were rescued. They were brought to
Delhi. Arms and ammunitions of huge quantity were seized from the h.ouse
where they were confined. The Police swung into action. On interrogation, the
details of hide-outs were found out and on raiding them huge quantity of
arms and ammunitions including AK-47 rifle were seized. The names of the
E two persons involved in the operation i.e. Mohmood @Ayub (A-7) and Nasar
Mohmood (A-8) surfaced during investigation. Rest were declared proclaimed
offenders as they could not be arrested in spite of best efforts. However, three
of the proclaimed offenders were later arrested. A-2 was arrested by Assam
Police while A-7 was arrested by Jammu and Kashmir Police and A-8 was
arrested by Srinagar Police. During investigation, it came to light that not only
F the effort was of kidnapping the foreigners who had already kept as hostages,
but intention was to kidnap many more so that greater pressure cari be used
for getting release of I 0 hard core terrorists who were the members of HU A.
Since accused Umar Sheikh was released from Tihar Jail along with
other militants no charge was framed against him but charges were framed
G against rest of the accused persons under various provisions.
During investigation, the statements of the accused persons were
recorded in terms of Section 15 of the TADA Act. Though statements of
foreign nationals had been recorded under Section 164 of the Code of Criminal
H Procedure, 1973 (for short the 'Code') it was not possible to secure their
J
NAZIRKHANv. STATE OF DELHI [PASAYAT,J.]
895
presence as they had left India and gone back to their respective countries. A
They did not choose to come to India. However, placing reliance on the
prosecution version substciμtiated to a great extent by the confessional
statements recorded under Section 15 of the TADA Act, and amongst other
corroboration provided by recoveries of anns and ammunitions, the accused
appellants were found guilt~ and sentenced as afore-mentioned.
~I
B
In support of the appeal filed by the accused appellants, Mr. M.N.
Krishnamani, learned senior counsel submitted that use of the statements
recorded under Section 15 of the TADA Act was impermissible as the
statements cannot be called voluntary statements, free from any coercion or
threat or undue influence. It was further submitted that even if the confessional C
statements are taken into account, they do not in any manner establish
offences for which the accused appellants have been convicted. Accepting
the prosecution version, bay,d on the confessional statements, A- l can at the
most be said to have been ,,1volved in kidnapping but he never threatened
to kill the captive. Similarly, so far as A-2 is concerned, he was involved in
the kidnapping as he was ~t aware of it when it was done. So he was not D
I
involved in the conspirac~ Though A-3 can be said to be a part of the
conspiracy and kidnapping, there was no material to fasten A-4 who is only
a driver of the vehicle with any offence. At the most, he can be guilty of not
disclosing the factum of kidnapping under Section 368 IPC and, therefore,
there was no scope for applying Section 1208 along with other provisions to E
convict the said accused appellant. A-7 was not aware of the conspiracy and
was not involved in any kidnapping. A-8 at the most can be guilty of
conspiracy and nothing else. In any event, the confessional statements would
not entail conviction under Section 364A. read with Section 1208 IPC. The
confessional statements in their entirety may come to the extent of sharing
that A-l and A-3 were involved in conspiracy and kidnapping while others F
were not so involved. In ~O;Y event, Umar Sheikh was the person who is
stated to be head of the whole mission, and the present appellants cannot
be held to be guilty. The ingredients of Section 3(2)(i), it was submitted are
non-existent and therefore: the conviction under these provisions is unfounded.
All the accused are small·1'awns in a big plot and do not deserve the harsh
sentence imposed. More so when some of the accused have been given life G
sentence for similar offences, no differential treatment to award death sentence
in case of three can be countenanced. The alleged kidnapped persons have
not appeared as witnesses and statements made by them during investigation
cannot be utilized.
''I
H
896
SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.
A
Rebutting the submissions, Mr. K.K. Sood, learned Additional Solicitor
General submitted that the evidence, materials and circumstances are sufficient
to establish involvement of each of the accuseq~ There has been no retraction
from the confessional statements, the procedural requirements have been
meticulously followed, the statements were voluntary and at no point of time
any objection was made relating to recording bf the confessional statements.
B The. recoveries of arms and ammunitions provide ample substantiation to the
confessions made. Even though in law there is no requirement for any
corroboration, there is ample corroboration in the case at hand. There is no
question of segregating the acts so far as offence of criminal conspiracy is
concerned. Even if a person· withdraws after participating in a conspiracy for
C some time, that does not dih.ite the factum of conspiracy. With reference to
the definition of criminal conspiracy in Section 120A in particular in Explanation
appended to the main provision, it is submitted that whether the illegal act
is the ultimate object of such agreement or is 11Jrely incidental to that object
is immaterial. The offence is made under the ilfustration appended to Section
10 of the Indian Evidence Act, 1872 (in short~he 'Evidence Act') and even
D if all the conspirators are ignorant of all the de~isioris and are strangers, that
is really of no consequence. The object and pi,frpose of the conspiracy was
clear and the manner of organizing the activities to achieve the ultimate
objective has been amply established. Merely because the persons who were
kidnapped have not appeared at trial to give evidence on account of
E unavoidable circumstance.s that does not weaken the quality/quantity of
evidence placed on record. The position where they were placed certainly
would have left a bad taste in the mouth, and no adverse inference can be .
drawn because of their non-appearance due to their leaving for their homes.
F
G
H
The rival stands need careful consideration.
In Hitendra Vishnu Thakur and Ors. v. St'f of Maharashtra and Ors.,
[ 1994] 4 SCC 602, this Court observed that: ·
\
'.'the legal position remains unaltered that the crucial postulate for
judging whether the offence is a terrorist/act falling under TADA or
not is whether it was done with the intent to overawe the, Gove~ment
. as by law established or to strike terror in the people etc. A 'terrorist'
activity does not merely arise by causing dist~rbance of law and order
or of public order. The fall out of the intended activity is to be one
that it travels beyond the capacity of the ordinary law enforcement
agencies to tackle it under the ordinary penal law. It is in essence a
NAZIR KHAN v. ST A TE OF DELHI [PASAYA T, J.]
897
deliberate and systematic use of coercive intimidation".
A
As was noted in the iaid case, it is a common feature that hardened
criminals today take advantage of the situation and by wearing the cloak of
terrorism, aim to achieve acceptability and respectability in the society; because
in different parts of the country affected by militancy, a terrorist is projected
as a hero by a group and .Often even by many misguided youth. As noted B
at the outset, it is not possible to precisely define "terrorism". Finding a
definition of "terrorism" has haunted countries for decades. A first attempt
to arrive at an internationally acceptable definition was made under the
League of Nations, but the convention drafted in 1937 never came into
existence. The UN Member States still have no agreed-upon definition. C
Terminology consensus would, however, be necessary for a single
comprehensive convention on terrorism, which some countries favour in
place of the present 12 pi,ecemeal conventions and protocols. The lack of
agreement on a definition ot'~errorism has been a major obstacle to meaningful
international countermeasur7s. Cynics have often commented that one State's
"terrorist" is another State'~ "freedom fighter". If terrorism is defined strictly D
in terms of attacks on non)Dilitary targets, a number of attacks on military
installations and soldiers' residences could not be included in the statistics.
In order to cut through. the Gordian definitional knot, terrorism expert A.
Schmid suggested in 1992 in a report for the then UN Crime Branch that it
might be a good idea to take the existing consensus on what constitutes a E
"war crime" as a point of departure. If the core of war crimes - deliberate
attacks on civilians, hostage taking and the killing of prisoners - is extended
to peacetime, we could simply define acts of terrorism as "peacetime equivalents
of war crimes".
League of Nations Convention (1937):
"All criminal acttciirected against a State along with intended or
calculated to create a statute of terror in the minds of particular
persons or a gro1:1p of persons or the general public".
(GA Res. 51/210 M~asures to eliminate international terrorism)
1. Strongly condemns all acts, methods and practices of terrorism as
criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons or particular
F
G
H
A
B
c
D
E
898
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SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.
persons fo'r political purposes are in any circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature t~at may be invoked to justify
them".
.1
(
I
3. Short legal definition proposed by A~P. Schmid to United Nations
Crime Branch (1992) :
b..
Act of Terrorism = Peacetime Equivalent of War Crime
4. Academic Consensus Definition:
"Terrorism is an anxiety-inspiring ofrepeated violent action, employed
by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby - in contrast to
assassination - the direct targets of violence are not the main targets.
The immediate human victims of viofence are generally chosen
randomly (targets of opportunity) or s~l1ctively (representative or
symbolic targets) from a target populih:ion, and serve as message
generators. Threat- and violence-based communication processes
between terrorist (organization), (imperil~d) victims, and main targets
are used to manipulate the main target (audience (s)), turning it into
a target of terror, a target of demands, or a target of attention,
depending on whether intimidation, coercion, or propaganda is primarily
sought" (Schmid, 1988).
Definitions:
Terrorism by nature is difficult to define. Acts of terrorism conjure
emotional responses in the victims (those hurt by the violence and those
F affected by the fear) as well as in the practitioners. Even the U.S. government
cannot. agree on one single definition of uniforrlf a11d universal application.
The old adage, "One man's terrorist is another m~n's freedom fighter" is still
alive and well. Listed below are several definition,s of terrorism used by the
Federal Bureau of Investigation.
• ..
G
Terrorism is the use or threatened use of force designed to bring
about political change. - Brian Jenkins
Terrorism constitutes the illegitimate use of force to achieve a political
objective when innocent people are targeted. - Walter Laqueur.
H
Terrorism is the premeditated, deliberate, systematic murder, mayhem,
NAZIR KHAN v. ST A TE OF DELHI [PASAYA T, J.]
899
and threatening of the innocent to create fear and intimidation in order A
to gain a political or tactical advantage, usually to influence an
audience. - James M. Poland
\
Terrorism is the unlawful use or threat of violence against persons or
property to further political or social objectives. It is usually intended
to intimidate or coerce a government, individuals or groups, or to B
modify their behavio/ or politics. - Vice-President's Task Force, 1986
Terrorism is the unlawful use of force or violence against persons or
property to intimidate or coerce a government, the civilian population,
or any segment thereof, in furtherance of political or social objectives.
- FBI Definition
· C
No doubt in the case of conspiracy there cannot be any direct evidence.