# STATE OF TAMIL NADU v. SIV ARASAN @ RAGHU @ SIV ARASA AND ORS

- **Citation:** [1996] Supp. 8 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 1996-10-31
- **Case number:** Criminal Appeal No. E 819 of 1994
- **Bench:** G.N. Ray, G.T. Nanavati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-v-siv-arasan-raghu-siv-arasa-and-ors-14961
- **Pages:** 27

## Headnote

Criminal Law :
A
B
Terrorist and Disruptive Activities (Prevention) Act, 198 7: Section C
15. Confession-Recording of-By a Police officer-Typewritten confession
words "records in writing"-Meaning of-Held: wider meaning had to be
given to include typewriting-Confessional statement need not be recorded
by Superintendent of Police in his own handwriting-He could take help
of another person or instrument like typewriter-But he must not leave
work of recording confession to his subordinates-Confession must be D
recorded in his presence and hearing and under his direct control.
Section 5-Ingredients of-Held: Prosecution must prove accused
was in conscious "possession", "unauthoriiedly", in "notified area" of
any of the specified arms and ammunition-No further nexus with any
terrorist or disruptive activity was required to be proved as statutory E
presumption would arise that said arm or explosive substance was meant
to be used for terrorist or disruptive act.
Section 5-Accused found in possession of explosive substances
(Gellatine sticks) for their use in Sri Lanka-Accused did not have intention
to commit terrorist or disruptive activity within India-Held: Accused F
rebutted presumption arising out of his unauthorised possession of Explosive
substance in a notified area-Acq,dttal upheld
Section 5-Explosive substances-Meaning of-Held: could not be
given same meaning as under explosive Substances Act-It must be complete G
article or device capable of exploding-Empty cells or part for making
bomb not covered-However, gelatine sticks were explosive substancesProvisions must be construed strictly.
Terrorist and Disruptive Activities (prevention) Rules, 1987: Rule
l 5(3)(b). Corifession-Certificate and memorandum made at the end of- H
243
244
SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.
A Held: need not be written down by Superintendent of Police himselfTypewritten certificate and memorandum signed by him were sufficient.
Explosive substances Act, 1908-'-Section 5.
Ingredients of-Accused found in possession of explosive substances
B as defined by Act- Such articles were parts of bombs and grenadesAccused did not possess them for any lawful object-Held: All ingredients
of offence under S.5 satisfied-Accused guilty of commission of that offence.
Section 7-Requirement of-Held: Section did not require sanction but
only consent for prosecuting a person-Object of using word "consent"
C instead of "sanction" was to have purely subjective appreciation of matter
before giving consent-Investigating Officer need not submit statement of
witnesses before Collector for obtaining his consent.
Penal Code, 1860; Section 120-B read with Section 3(3), TADA.
D
Conspiracy-Charge of-Certain articles like incomplete grenades
or bombs or their parts and vehicles used in transporting same were
recovered from accused-No evidence led by prosecution to prove that
accused intended to commit terrorist act within India or to endanger
life or cause injury to property in India-Evidence disclosed accused
E involved in manufacturing bombs and grenades for their use by LITE in
Sri Lanka Held: the said recovery, even if believed, not sufficient to prove
charge of conspiracy-Ingredients ofS.3(3) TADA were not satisfied-S.4
of the Explosive Substances Act not applicable.
Section 309-Attempt to comm ii suicide-Proof of-Accused admitted
F that he tried to bite a cyanide capsule when police tried to take him into
custody-Offence also proved-ffeld: acquittal set aside.
Criminal Procedure Code, 1973:
G
Offence-Under S.4 of Explosive Substances Act, 1908-Accused
charged with-Held: accused could be convicted and punished for a lesser
offence under S.5 of that Act if ingredients constituting that offence were
established.
H
Interpretation of Statutes :
STATEOFT.N. v. SIVARASAN
245
Interpretation-Rules of-Strict construction-Held: Statute A
containing stringent provisions and providing heavier punishments must
be construed strictly.
Words and Phrases:
"Recorded in ·writing", "type1vri

## Text

_Characters 0–39,905 of 68,917. This is a partial read: ask again with offset=39905 for what follows._

STATE OF TAMIL NADU
v.
SIV ARASAN @ RAGHU
@ SIV ARASA AND ORS.
OCTOBER 31, 1996.
[G.N. RAY AND G.T. NANAVATI, JJ.]
Criminal Law :
A
B
Terrorist and Disruptive Activities (Prevention) Act, 198 7: Section C
15. Confession-Recording of-By a Police officer-Typewritten confession
words "records in writing"-Meaning of-Held: wider meaning had to be
given to include typewriting-Confessional statement need not be recorded
by Superintendent of Police in his own handwriting-He could take help
of another person or instrument like typewriter-But he must not leave
work of recording confession to his subordinates-Confession must be D
recorded in his presence and hearing and under his direct control.
Section 5-Ingredients of-Held: Prosecution must prove accused
was in conscious "possession", "unauthoriiedly", in "notified area" of
any of the specified arms and ammunition-No further nexus with any
terrorist or disruptive activity was required to be proved as statutory E
presumption would arise that said arm or explosive substance was meant
to be used for terrorist or disruptive act.
Section 5-Accused found in possession of explosive substances
(Gellatine sticks) for their use in Sri Lanka-Accused did not have intention
to commit terrorist or disruptive activity within India-Held: Accused F
rebutted presumption arising out of his unauthorised possession of Explosive
substance in a notified area-Acq,dttal upheld
Section 5-Explosive substances-Meaning of-Held: could not be
given same meaning as under explosive Substances Act-It must be complete G
article or device capable of exploding-Empty cells or part for making
bomb not covered-However, gelatine sticks were explosive substancesProvisions must be construed strictly.
Terrorist and Disruptive Activities (prevention) Rules, 1987: Rule
l 5(3)(b). Corifession-Certificate and memorandum made at the end of- H
243
244
SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.
A Held: need not be written down by Superintendent of Police himselfTypewritten certificate and memorandum signed by him were sufficient.
Explosive substances Act, 1908-'-Section 5.
Ingredients of-Accused found in possession of explosive substances
B as defined by Act- Such articles were parts of bombs and grenadesAccused did not possess them for any lawful object-Held: All ingredients
of offence under S.5 satisfied-Accused guilty of commission of that offence.
Section 7-Requirement of-Held: Section did not require sanction but
only consent for prosecuting a person-Object of using word "consent"
C instead of "sanction" was to have purely subjective appreciation of matter
before giving consent-Investigating Officer need not submit statement of
witnesses before Collector for obtaining his consent.
Penal Code, 1860; Section 120-B read with Section 3(3), TADA.
D
Conspiracy-Charge of-Certain articles like incomplete grenades
or bombs or their parts and vehicles used in transporting same were
recovered from accused-No evidence led by prosecution to prove that
accused intended to commit terrorist act within India or to endanger
life or cause injury to property in India-Evidence disclosed accused
E involved in manufacturing bombs and grenades for their use by LITE in
Sri Lanka Held: the said recovery, even if believed, not sufficient to prove
charge of conspiracy-Ingredients ofS.3(3) TADA were not satisfied-S.4
of the Explosive Substances Act not applicable.
Section 309-Attempt to comm ii suicide-Proof of-Accused admitted
F that he tried to bite a cyanide capsule when police tried to take him into
custody-Offence also proved-ffeld: acquittal set aside.
Criminal Procedure Code, 1973:
G
Offence-Under S.4 of Explosive Substances Act, 1908-Accused
charged with-Held: accused could be convicted and punished for a lesser
offence under S.5 of that Act if ingredients constituting that offence were
established.
H
Interpretation of Statutes :
STATEOFT.N. v. SIVARASAN
245
Interpretation-Rules of-Strict construction-Held: Statute A
containing stringent provisions and providing heavier punishments must
be construed strictly.
Words and Phrases:
"Recorded in ·writing", "type1vriting"-Meaning of-In the context B
of-S 15 of the Terrorist and Disruptive Activities (Prevention} Act, 1987.
"Explosive substances"--Meaning of-Jn the context of S.5 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987.
"Under his own hand"-Meaning of-In the context of R.15{3){b) C
of the Terrorist and Disruptive Activities (Prevention) Rules, 1987.
"Consent "-Meaning of-In the context of S. 7 of the Explosive
Substances Act, 1908.
The respondents-accused were acquitted of charges under
Sections 120-B of the Indian Penal Code, 1860 read with Sections
3(3) and 5 of the Terrorist. and Disruptive Activities (Prevention) Act,
1987 and Sections 4 and 5 of the Explosive Substances Act, 1908.
Being aggrieved the appellant-State preferred the present appeal.
According to the prosecution, the accused who were Sri Lankan
nationals and members of Liberation Tamil Tigers Elam (LTTE) came
D
E
to India without any travel documents. Since then the accused were
engaged in obtaining explosive substances, manufacturing bombs and
sending them to LTTE in Sri Lanka. On the fateful day when the
police were trying to take accused (A-I) into custody he tried to bite F
a cyanide capsule. On further investigation accused (A-1) was found
in the possession of explosive substance (gelatine sticks) for their use
in Sri Lanka. The accused were also in possession of explosive
substances as defined in Explosive Substances Act, 1908. Such explosive
substances were parts of bombs and grenades and the accused possessed G
them not for any lawful object. Certain articles like incomplete
grenades or born bs or their parts and vehicles used in transporting
them were recovered from the accused. It was the further case of the
prosecution that the accused (A-2 and A-9) had made typewritten
confessional statements before the Superintendents of Police, PWs 51
and~.
H
246
SUPREME COCRTREPORTS [1996] SUPP. 8 S.C.R.
A
On the basis of the evidence adduced on behalf of the prosecution,
the Sessions Judge came to the conclusion that the charges levelled
against the accused were not established. The Sessions Judge, therefore,
acquitted all the accused for the following reasons:-
(I) The Superintendent of Police should have recorded the
B confession in his own handwriting and Section 15 of the TADA Act
did not permit him to get it written by someone else on a typewriter
even if that was done in his presence. Further, Rule 15 of the TADA
Rules required that in case of a written confession the Superintendent
of Police should have certified the same in his own handwriting. The
confessions were wholly typewritten and they were not recorded in
C accordance with Section 15 of the TADA Act and Rule 15 of the TADA
Rules and hence were inadmissible.
(2) There was no evidence to show that the accused possessed
arms and ammunition and other explosive substances with the
intention of committing any terrorist or disruptive activity within
D India and hence the accused were not guilty under section 5 of the
TADA Act and Section 4 of the Explosive Substances Act, 1908.
E
F
G
(3) The charge of conspiracy was net established on the basis of
evidence of the witnesses and confessions of the accused.
(4) The charge under Section 309 IPC was void in view of the
decision of this Court in P.Rathinam's case.
(5) There was no evidence to prove the charge of conspiracy
under Section 120-B IPC read with Section 3(3) of the TADA Act.
(6) The sanction given by the District Collector under Section 7
of the Explosive Substances Act, 1908 was not a valid sanction and,
therefore, the accused could not be convicted under Section 4 of the
Explosive Substances Act, 1908.
On behalf of the appellant-State it was contended that the
trial court did not correctly appreciate the charge regarding
conspiracy; that on an erroneous view of the law the trial court
ommitted from consideration the confessional statements; and that
the finding regarding the sanction given by the Collector under Section
H 7 of the Explosive Substances Act, 1908 was bad being contrary to the
-
STATEOFT.N. v. SIVARASAN
247
law and the evidence.
Allowing the appeal in part, this Court
HELD : I. The expression "recorded in writing" in section 15 of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
A
has a wider meaning. It would include writing down by one's hand B
and also writing by other means. Unless the context so requires it
would not be proper to give that expression a narrow meaning. In
Section 15 the words 'recorded in writing' are used to indicate a
mode or form of recording the confession. Though the nature of the
provision would, justify strict compliance with each of the conditions
mentioned therein there is no compelling reason to give such a narrow C
interpretation to those worc!s. Though the Superintendent of Police
must himself explain to the person making the confession that he is
not bound to make a confession and that it may be used as evidence
against him if he makes it and though he has himself to question the
person making it to form a reasonable belief that he is making it
voluntarily it was not intended by the Legislature that the D
Superintendent of Police should himself write down the confession
without taking any help of another person or an instrument like a
typewriter. What appears to have been intended by the Legislature is
that the Superintendent of Police should not leave the work of
recording the confession to any of his subordinates and that everything
in connection with the confession should be done in his presence and E
hearing and under his direct supervision and control. Therefore, there
is no justification for interpreting the words "recorded by such police
officer in writing" to mean recorded by such police officer in his own
handwriting. There is no reason why a Superintendent of Police who,
for some reason, is unable to write down the confession, cannot take F
the help of another person for writing the same. Why cannot a
Superintendent of Police, whose handwriting is not good, record the
confession by using a typewriter? Typewriting is also writing. A
typewritten thing is also a writing prepared with the help of a
typewriter. In the instant case the Sessions Judge erred in treating
the confessions as inadmissible on the ground that they were not G
recorded in accordance with the requirement of Section 15 of the
TADA Act. [259 D-H, 260 A,BJ
State v. S.J Choudhary, [1996) 2 SCC 428, relied on.
Webster's Comprehensive Dictionary, referred to.
H
248
SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.
A
2. The expression "under his own hand" as used in Rule 15(3)(b)
of the TADA Rules does not mean in his own handwriting. What is
inter alia required to be certified by the police officer is that the
confession was taken in his presence and recorded by him. The words
"taken in his presence and recorded by him' are significant. Similarly,
the words of the memorandum that the <:onfession was taken 'in my
B presence and hearing and recorded by me' are also significant and
indicative of the expected manner of recording the confession. They
clearly suggest that the confession should be recorded by the police
officer in his presence and hearing. The emphasis is on the presence
and hearing of the police officer and not on the police officer himself
writing down the confession, the certificate and the memorandum.
C Thus, what is required by sub-rule (3) is that the written confession
should not only be countersigned by him but it should also contain
the required certificate signed by him. The intention of the Rule clearly
appears to be that all the formalities should be performed by him
and he should himself certify that he had discharged all the obligations
before recording the confession. [260 H & 261 A-DJ
D
3.1. The prosecution must prove that the accused was in conscious
"possession", "unauthorisedly', in a "notified" area of any of the
specified arms and ammunition. No further nexus with any terrorist
or disruptive activity is required to be proved by the prosecution as a
statutory presumption would arise that the said arm or explosive
E substance was meant to be used for a terrorist or disruptive act.
[265 B,C]
Sanjay Dutt v. State, [1994) 5 SCC 410, followed.
F
3.2. The TADA Act contains stringent provisions and provides
heavier punishments. Therefore, its provisions have to be construed
strictly. The TADA Act does not define the expression "explosive
substances". The Legislature has not thought if fit to give that
expression the same meaning as is given under the Explosive Substances
Act. Otherwise, just as it has in case of arms and ammunition referred
G to the Arms Rules, 1962 it would have referred to the Explosive
Substances Act if it really wanted the said expression 'explosive
substances' to have the same meaning as it has under the Explosive
Substances Act. The expression ·other explosive substances' is found
to be in the company of 'bombs and dynamites' and, therefore, the
explosive substance contemplated under Section 5 must be Qf the type
H. of bombs and dynamites. It must be a complete article or device capable
STA TE OF T.N. v. SlVARASAN
249
of exploding. Therefore, neither empty cells nor parts for making a A
bomb so long as they are not assembled and filled with gun powder
or other explosive substance can be said to be an explosive substance
as contemplated by that Section. 1265 D,E,FI
4.1. Gellatine sticks which were found from the possession of
the accused would be an explosive substance but the acquittal of the B
accused is confirmed because the evidence shows that no terrorist or
disruptive activity was ever intended by him to be committed within
India as the evidence disclos•s that they were to be sent to Sri Lanka
and used there. The accused has rebutted the presumption arising
out of his unauthorised possession of explosive substance in a notified
area. [265 F,G)
C
4.2. The accused were found in possession of explosive substances
as defined by the Explosive Substances Act, 1908. Such articles were
the parts of bombs and grenades. The clandestine manner in which
the accused were making, storing and transporting them is a
circumstance sufficient to create a reasonable suspicion that they were D
not possessed for a lawful object. Therefore, all the ingredients of the
offence under Section 5 of the Explosive Substances Act, 1908 are
satisfied and the accused are guilty of that offence.· Although the
accused were charged under Section 4 of the Explosive Substances
Act, 1908 and there was no specific charge under Section 5 of that E
Act, it being a lesser offence, the accused can be ·convicted and
punished under that Section, if the ingredients constituting that offence
are established. [266 A-El
4.3. Section 7 of the Explosive Substances Act, 1908 does not
require a sanction but only consent for prosecuting a person for an F
offence under that Act. The object of using the word 'consent' instead
of "sanction" in Section 7 is to have a purely subjective appreciation
of the matter before giving the necessary consent. It is not necessary
for the investigating officer to submit the statement of witnesses to
the Collector for obtaining his consent. [266 F,G)
G
5.1. The charge of conspiracy is not established on the basis of
the evidence of witnesses and confessions of the accused. Consequently,
the circumstance that certain articles like incomplete grenades or
bombs or their parts and vehicles used in transporting them were
recovered from the accused, even if believed, are not sufficient to H
250
SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.
A prove the charge of conspiracy. No other evidence was led by the
prosecution to prove that the accused intended to commit a terrorist
act in India or to endanger life or cause serious injury to property in
India. On the contrary, the evidence discloses that the accused who
were involved in manufacturing bombs and grenades were doing so
for their use by L TTE in Sri Lanka. Therefore, the ingredients of
B Section 3(3) of the TADA Act were not satisfied in this case and Section
4 of the Explosive Substances Act, 1908 has no application.
1262-H 263-A,BJ
5.2. The evidence clearly establishes that when the polic~ tried
to take the accused (A-1) into custody he had attempted to commit
C suicide by biting a cyanide capsule. The Constitution Bench of this
Court in Gian Kaur 's case has overruled the view taken in P.Rathinam 's
case that section 309 IPC is constitutionally invalid. Therefore, the
acquittal of accused (A-1) under Section 309 IPC is set aside and he is
convicted under that Section. 1268 E-GJ
D
Gian Kaur v. State of Punjab, [1996) 2 SCC 648, followed.
P. Rathinam v. Union of India, [1994) 3 SCC 394, held
inapplicable,
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 819 of 1994.
From the Judgment and Order dated 10.8.94 of the Principal Sessions
Judge and Designated Court at Coimbatore in C.C.No.61 of 1992.
F
V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V.
Viswanathan and V.G. Pragasam for the Appellant.
U.R. Lalit, M.T. George, P.D. Sharma(NP), Ashok Aggarwal, R.G.
James and C.S. Ashri for the Respondents.
G
The Judgment of the Court was delivered by
NANA VA Tl, J. This appeal arises out of the judgment and order of
the Principal Sessions Judge aI>d Designated Court, Coimbatore, in C.C.No.
61of1992. As the learned Judge acquitted the accused, the State has filed
this appeal under Section 19 of the Terrorist and Disruptive Activities
H (Prevention) Act, 1987 (herein after referred to as the "TADA Act").
STATEOFT.N. v. SIVAR.\SAN [NANAVAT!,J.]
251
The prosecution case is that Shivarajan alias Raghu (Respondent/ A
Accused No.I) and Vigneswaran alias Vicky (Respondent/Accused No.2)
who were Sri Lankan nationals and members of L TTE came to India
sometime in 1989 without any traveling documents. So also, Guna and
Dixon who were Sri Lankan nationals and members of L TTE had come to
India in the like manner. Since then they were engaged in obtaining
explosive substances, manufacturing bombs and sending them !o L TTE in B
Sri Lanka. In the said cladestine activity they were helped and assisted by
Respondent Nos. 3 to 9 (Accused Nos. 3 to 9) who are Indian nationals.
Tilll the assassination ofRajiv Gandhi on 21.5.91, they could carry on the
said activity without any hinderance. Thereafter it became difficult for
them to do so as the whole of Tamil Nadu was declared as a Notified Area
with effect from 23.6.91, under Section 2(1)(1) of TADA Act and also
because the Government of India and the Government of Tamil Nadu
tightened security measures within the State of Tamil Nadu. The police
was also on look out for Sri Lankans who did not possess passport and
visa for staying in India and had also required the house owners to report
c
to it if such Sri Lankans were found to be occupying their houses. Due to
such strict measures A-1, A-2 Guna and Dixon found it difficult to obtain D
accommodation for their residence and for manufacturing bombs and storing
them and therefore, they went on changing houses after taking them on
rent by making misrepresentations. Since February 1991 A-1 and Guna
had taken on rent one house bearing Door No. 11/12 A situated in Shivaji
Colony in Coimbatore. Dixon and others were occupying a different house E
in Coimbatore. As the L TTE was in desperate need of hand grenades and
bombs and wanted them to be supplied latest by the end of first week of
August 1991, A-I to A-5 and A-7 to A-9 and Guna met at the house of Al in Shivaji Colony and decided to manufacture and send them to Sri
Lanka and also to strike terror in the people by using bombs or other
explosives and thereby causing damage to Indian property or death or F
injuries to Indian leaders and other persons if they came in their way. All
the nine accused along with Guna and Dixon continued to manufacture
different parts of hand grenades and plastic bombs and store them at different
places. A-I and A-2 were required to change their residence from shivaji
Colony to a house in Dr. Muthuswamy Colony as the owner of the house G
objected to their suspicious activities. On 28.7.91, A-1 and A-2 after making
necessary arrangements for transporting the hand grenades and plastic
bombs manufactured by them with the help of other accused and which
were to be filled with explosives at Trichy returned to the house in Dr.
Muthuswamy Colony. They found police standing near their house. So
they went to another house where some more articles were kept. There H
252
SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.
A they came to know that Guna and Dixon had committed suicide as the
police had surrounded their house.
In the evening A-1 and A-2 were going on a Kinetic Honda scooter.
P.W. l Pandurangan, a traffic police constable signalled them to stop as he
noticed that the scooter was being driven very fast. Instead of stopping the
B scooter, A-1 who was driving it, attempted to dash it against him. P.W.l
jumped aside and saved himself. After covering some distance A-1 and A2 fell down on the road along with the scooter. P. W. l then went to that
place and asked A-I to show his licence. A-I challenged him by saying as
who he was to ask for a licence. A-1 then said "if this police man is done
away with, this police department will then understand". He also threatened
C P. W. l by stating that if he tried to catch him, beat him or sent him out of
the country he would destroy the entire Tamil Nadu. P.W.l suspecting
them to be LTTE terrorists, shouted for help and blew his whistle.
Thereupon A-I attempted to start the scooter but it did not start. Hearing
the shouts and the whistle two police constables, Sivagnanam and P.W.2
Devasayayam came there. The three police constables with the help of
D other persons tried to take both the accused in custody. At that time A-I
took out a cyanide capsule from his pant pocket and attempted to put it in
his mouth. P.W.l pushed his hand aside and the capsule fell down on the
roail. The police constables then took both the accused to Thoodivalur
police station. There P.W. \ lodged a complaint against them under section
E 353, 307 and309 l.P.C. On the basis of this complaint Inspector Angamuthu,
P.W.55 started the investigation. On the basis of further information other
charges under the TADA Act and Explosive Substances Act, 1908 were
also added. During the investigation various incriminating articles like
incomplete grenades or bombs or their parts and the vehicles used in
transporting the same were discovered at the instance of the accused or
F were recovered from their possession.
On these allegations, A-1 to A-5 and A-7 to A-9 were charged for
the offences punishable under Section 120-B read. with section 3(3) of the
TADA Act. A-1, A-3 to A-5 and A-7 to A-9 were also charged for the
G offences punishable under Sections 3(3) and 5 of the TADA Act. They
· were also charged for commission of the offence under Section 4 of the
Explosives Substances Act. A-6 was charged under section 5 of the TADA
Act and Section 4 of the Explosives Substances Act. A-1 and A-2 were
further charged under Section 307 read with Section 34 l.P.C. A-1 was
individually charged for the offences punishable under Sections 353 and
H 309 1.P.C.
-
STATEOFT.N. v. SIVARASAN [NANAVATI,J.]
253
In order to prove the conspiracy the prosecution relied upon the A
evidence of P. W.21 Prem Kumar, P. W.38 Kumar, confessional statements
of A-2 and A-9 and also the evidence of other witnesses who deposed that
between the first week of July 1991 and 3.8. 1991 they had either seen
some of the accused together or seen them manufacturing, storing and
transporting parts ofboms and grenades. As the charge against the accused
regarding conspiracy was specific that said conspiracy was hatched during B
that period, in the house bearing Door No. l l/12A of Shivaji Colony, the
learned trial judge held that it was necessary for the prosecution to prove
that the conspiracy was hatched as alleged. After appreciating the evidence
of prosecution witnesses in this behalf the learned trial judge held that the
said house was vacated by A-1 on 3.7. 91 and that there was no evidence
to show that during the first week of July 1991. When the said house was C
in occupation of A-1 all the accused had met there and conspired as alleged.
The learned trial judge having found that between 11.7.91and28.7.91
A-1 and Guna resided in a different house situated in Dr. Munusami Colony
and that there was no evidence to show that A-I to A-5 and A-7 to A-9 and
deceased Guna were found together in any place during the period from
first week of July to 3.8.91 and had agreed to do any illegal act, held that D
the charge of conspiracy was not proved.
Though the prosecution had also relied upon the confessional
statements of A-2 and A-9 in order to prove the charge of conspiracy the
learned judge did not take them into consideration as he was of the view
that they were not recorded in the manner prescribed by Section 15 of the E
TADA Act and Rule 15 of the TADA Rules and therefore could not be
accepted in evidence. In the alternative he held that even if they were
accepted as evidence they alone could not be made the basis for conviction
of the accused. To prove possession of bombs, grenades and explosive
substances by the accused the prosecution had relied upon the evidence of F
those witnesses who deposed about their having seen the accused either
making purchases of raw materials for preparing hand grenades or bombs
or manufacturing parts of the bombs or transporting such parts and also of
those witnesses in whose presence such parts and explosive substances
were recovered. For proving this charge also the prosecution had relied
upon the two confessional statements of A-2 and A-9. The learned judge G
held that the evidence regarding recovery of the articles from various
accused was not sufficient. Therefore, this charge was also held as not
proved. In the alternative the learned judge held that even if it was believed
that such articles were recovered from the possession of A-1 and A-3 to A9 and eventhough articles siezed by the police were explosive substances
as defined by Section 2 of the Explosive Substances Act, there was no H
254
SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.
A evidence to show that they were ;possessed either for the purpose of
committing terrorist acts or for supporting or abetting terrorist acts or
with an intention to endanger life or to cause serious injury to any person
in India by means thereof or to cause serious injury to property in India
and, therefore, they could not be held guilty under Section 5 of the TADA
Act and Section 4 of the Explosive Substances Act. The learned judge also
B held that the sanction given by the District Collector, to prosecute the
accused under the Explosive Substances Act was not a valid Section and,
therefore, also they could not be convicted under Section 4 of the Explosive
Substances Act. With respect to the charges under Sections 307, 353 and
309 I.PC. he held that the evidence of P.W.1 Pandurangan, P.W2
DevasayayamP.W.3 Dhansekaran, P.W.4 Arumugam, P.W. 6 V.Arumugam
C and P.W.7 Singaram was not acceptable as the version given by them was
"artificial and unbelievable". He did not consider the charge against A-I
under Section 309 I.P.C. as the same was held void in view of the decision
of this Court in P. Rathinam and Naghbushan Patnaik v. Union of India
[1994] 3 SCC 394. The learned Judge, therefore, acquitted all the accused
of all the charges levelled against them. Aggrieved by the said order of
D acquittal the State has filed this appeal.
The learned counsel appearing for the appellant-State contended that
the trial Court did not correctly appreciate the charge regarding conspiracy
and, therefore,the finding that conspiracy as alleged is not proved stands
E vitiated. He also contended that on an erroneous view of the law the trial
court omitted from consideration the confessional statements, Exh.53 and
Exh.51 of A-2 and A-9. He also submitted that the finding regarding the
sanction given by the District Collector under Section 7 of the Explosive
Substances Act is bad being contrary to the law and the evidence. The
other findings are challenged on the ground that the evidence relating
F thereto has not been correctly appreciated and the reasons given in support
thereof are improper and untenable.
On the other hand the learned counsel appearing for the respondents
supported the findings on the grounds given by the trial court and submitted
G that the acquittal of the accused is proper and just and does not call for any
interference by this Court.
We will first consider the charge of conspiracy and the evidence led
to prove it. The prosecution case was that as, after the assassination of
Rajiv Gandhi on 21.5.91, it became very difficult for A-1, A-2, Guna,
H Dixon and others who were engaged in manufacturing hand grenades and
-
-
STATEOFT.N. v. SIVARASAN[NANAVATI,J.]
255
bombs for the L TTE and as the L TTE was in dire need of those bombs A
latest by the end of the first week of August 1991, the accused met at the
house of A-1 and A-2 situated in Shivaji Colony in the first week of July
1991 and hatched a conspiracy by agreeing "to commit illegal acts by
illegal means, to strike terror in the people by using bombs and other
explosive substances as was likely to cause death and injuries to Indian
Leaders and people who might prevent their unlawful activities and also B
to manufacture grenades and explosive substances in the notified area of
Coimbatore."
Thus, the charge framed against the accused was not only that they
had conspired to commit terrorist acts but they had also conspired to
manufacture explosives like grenades and bombs in the notified area. The C
learned counsel for the appellant was, therefore, right in his submission
that the learned Sessions Judge did not properly appreciate what exactly
was the charge against the accused and failed to consider if the charge that
they had also conspired to manufacture explosives was proved. He also
rightly submitted that the charge against the accused was that the accused
had entered into a criminal conspiracy in the first week of July 1991 in D
House No. 11/12-A of Shivaji Colony and the illegal acts referred to in
the charge were committed in pursuance of that conspiracy between first
week of July 1991 and 3.8.91 and therefore, the learned Sessions Judge
was not right in holding that the charge of conspiracy was not proved as
there was no evidence to establish that between 3.7.91 and 3.8.91 the E
accused had met in the said house and conspired to commit the said illegal
acts. In view of this infirmity in the judgment we have carefully considered
the evidence keeping in mind both these aspects.
The evidence of P.W.21 Prem Kumar establishes that A-1, A-2 and
Guna were in possession of his house in Shivaji Colony in the first week F
of July 1991. What he has stated is that his house was taken on rent by Al and Guna in February 1991 and they vacated it on 3.7.91. But there is
no evidence except the two confessional statements (Exhs. 51 and 53 ), to
prove that A-1 to A-5 and A-7 to A-9 had met together in that house any
time between 1.7.91 and 3.7.91.
G
It was not the prosecution case that conspiracy was hatched in any
other manner or at any other place. Even with respect to the circumstances
relied upon by the prosecution that during that period some of the accused
were either residing or moving together or were helping each other, in
order to prove by way of an inference that the accused had conspired as H
256
SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.
A alleged, it has to be stated that the evidence of P.W.38 Kumar P.W.13,
P. W.4 l and P.W.45 is neither specific nor sufficient to justify drawing of
such an inference. They have generally stated that A-3 to A-9 were helping
A-1, A-2 Guna and Dixon in obtaining raw materials or machines required
for manufacturing bombs or their parts or they were manufacturing parts
required for preparing bombs on orders placed by A-l or Guna. In absence
B of further evidence to show that they had the knowledge or had shared the
intention with A-1, A-2, Guna and Dixon that all those acts were · 'ing
done for manufacturing bombs, no inference can be drawn that they were
also party to the conspiracy.
The only other evidence led in the case consists of the two confessional
C statements (Exhs. 51 and 53). The confessional statement of A-2 (Exh.53)
was recorded on 17.8.91 by Superintendent of Police Shri Muthukaruppan,
P. W.53. As disclosed by his evidence he had informed A-2 that it was not
necessary for him to give such a statement and in spite of that ifhe gave if,
it could be used against him at the trial. Even after ascertaining that he
was not compelled to give it, he had given I 0 to 15 minutes time to
D reconsider. As A-2 had shown his willingness again and as he was satisfied
about the he had decided to record it. He had got it written on a typewriter.
It was then read over to A-2 and his signatures were taken on each page as
he had accepted that it was correctly taken down. He had also signed the
statement and the certificate. The suggestions made to him in his crossE examination that A-2 had not willingly given that statement and that his
signatures were obtained on it by force were denied. Nothing could be
elicited in his cross-examination which would create any doubt regarding
credit worthiness of this witness and genuineness and voluntary character
of the confession. The confessional statement (Exh.51) of A-9 was recorded
on 3. l 0.91 by P. W.5 l Appadurai. He has also given similar evidence and
F denied the suggestion made to him in his cross-examination that he had
written down a false confession and obtained signatures of A-9 on it under
a threat. No good reason has been given by the learned counsel for the
respondents to disbelieve the evidence of this witness also. The evidence
of these two witnesses, therefore, establishes that the confessions (Exh. 51
G and 53) were given by A-2 and A-9 voluntarily and were taken down
correctly.
The learned Sessions Judge was of the view that Section 15 of the
TADA Act requires that the Superintendent of Police should record the
confession either in his own handwriting or on any mechanical device like
H cassettes, tapes or sound tracks from out of which sounds or images can be
STATEOFT.N. v. SIVARASAN [NANAVATl,J.]
257
reproduced and the Section does not permit him to get it written by someone A
else on a typewriter even ifthat is done in his presence. The learned Judge
was also of the view that Rule I 5 requires that in case of written confession
the Superintendent of Police should, in his own handwriting, certify the
same. He, therefore, held that as both the confessions were wholly
typewritten they cannot be said to have been recorded in accordance with
the requirements of the said provisions. The learned Sessions Judge also B
held that both the police officers had not exercised their power or discharged
their function under section 15 in the manner contemplated by that provision
as indicated by the fact that in the heading of each of those statements it
is stated that "It is a confessional statement of the accused". According to
the learned Judge that would mean that both the police officers had started
recording the same before satisfying themselves as to whether the accused C
were willing to give a voluntary confession. We have already set out the
evidence of the two police officers earlier and it clearly transpires therefrom
that they had started recording the confessions not only after satisfying
themselves that they wanted to confes voluntarily but after giving them I 0
to 15 minutes' time for reconsidering their decision. Therefore, the inference
drawn by the learned Sessions Judge that the said two police officers had D
started recording the confessions without properly satisfying themselves
regarding the willingness of the accused to make confessions is wholly
unjustified. We find that both the officers had, be.fore recording the
confessions complied with the requirement of sub-section (2) of Section
15.
We will now consider whether Section 15 of the TADA Act and
Rule 15 of the TADA Rule require that the confessional statement should
be recorded by the Superintendent of Police in his own handwriting if it is
not recorded on any mechanical device. Section 15 and Rule 15 in so far
as they are relevant for the purpose of this appeal read as under:-
''Certain confessions made to police officers to be taken into
consideration.(!) Notwithstanding anything in the Code or
in the Indian Evidence Act, 1872 (I of 1872), but subject to
E
F
the provisions of this section, a confession made by a person
before a police officer not lower in rank than a Superintendent G
of Police and recorded by such police officer either in writing
or on any mechanical device like cassettes, tapes or sound
tracks from out of which sounds or images can be reproduced,
shall be admissible in the trial of such person or co-accused,
abettor of conspirator for an offence under this Act or rules
made thereunder.
H
A
B
c
D
E
258
SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.
(2) .................. .
Rule 15 reads as under:-
"Recording of confession made to police officers".
(I) ··················
(2) .................. .
(3) The confession shall, if it is in writing, be-
(a) signed by the person who makes the confession; and
(b) by the police officer who shall also certify under his own
hand that such confession was taken in his presence and
recorded by 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:-
(4)
(5)
"
A confession made by an accused to a police officer is made
inadmissible in a criminal trial both by the Indian Evidence Act and the
Code of Criminal Procedure. But while enacting the Terrorist and
F Disruptive Activities (Prevention) Act which makes special provisions for
the prevention of, and for coping with, terrorist and disruptive activities
and for the matters connected therewith or incidental thereto the Legislature
has thought it fit to make certain confessions made to police officers
admissible in a trial of such person or co-accused, abettor or conspirator
G for an offence under that Act or Rules made thereunder. The Legislature
has, however, at the same time, provided enough safeguards to protect the
interest of the accused. A confession is made admissible only ifit is made
before a police officer not lower in rank than a Superintendent of Police.
It is made admissible if it is recorded by such police officer either in
writing or on any mechanical device like cassettes, tapes or sound tracks
H from out of which sounds or images can be reproduced. Such a confession
STATEOFT.N. v. SIVARASAN[NANAVATI,J.]
259
can be used against a co-accused, abettor or conspirator only in those cases A
where he is charged and tried in the same case together with the accused
making that confession. Before recording a confession the police officer
must explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence against him.
A provision is also made that the police officer shall not record any such
confession unless upon questioning the person making it, he has reason to B
believe that it is being made voluntarily. The confessions (Exhs. 51 and
53) were recorded in writing. As regards compliance with the requirements
of Section 15 the only point in dispute is whether the confessions were
"recorded by such police officec .......