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TMI Blog1996 (10) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... andestine activity they were helped and assisted by Respondent Nos. 3 to 9 (Accused Nos. 3 to 9) who are Indian nationals. Till the assassination of Rajiv 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)(f) 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 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other persons tried to take both the accused in custody. At that time A-1 took out a cyanide capsule from his pant pocket and attempted to put it in his mouth. P.W. 1 pushed his hand aside and the capsule fell down on the road. The police constables then took both the accused to Thoodivalur police station. There P.W. 1 lodged a complaint against them under Section 353, 307 and 309 IPC. 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 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 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 A-9 and eventhough articles seized by the police were explosive substances as defined by Section 2 of the Explosive Substances Act, there was no 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 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 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 House No. 11/12-A of Shivaji Colony and the illegal acts referred to in the charge were committed in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertaining that he was not compelled to give it, he had given 10 to 15 minutes time to 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 cross-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 3.10.91 by P.W. 51 Appadurai. He has also given similar evidence and 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanical 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.(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer 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. (2)... Rule 15 reads as under: Recording of confession made to police officers. (1)... (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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erb, means to trace or inscribe or note down letters, words, numbers etc. on a surface with a pen, pencil or by some other device including stamping, printing or engraving. Thus the expression 'record in writing' has a wider meaning. It would include writing down by one's own hand 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 we find no compelling reason to give such a narrow interpretation to those words as has been done by the learned Sessions Judge. Though 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 we do not think that it was intended by the Legislature is that the Superintendent of Police should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorandum at the end of the confession to the following effect: I have explained to (name) that he is not found to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Sd. Police Officer. The learned Sessions Judge has interpreted the expression 'under his own hand' to mean written in his own hand. As the confessions were not handwritten by the Superintendents themselves the learned sessions Judge held that they were not certified as required by Rule 15(3)(b). In our opinion, the expression 'under his own hand' as used in Sub-rule (3)(b) of Rule 15 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne to the house of A-1, A-3 to A-4 had also come and at that time A-1, Guna and two others were also present. There was a conversation amongst them that severe war was going on at Cyclone and there are obstructions for sending the bombs manufactured here. They (Ramakrishnan, Aruchamy, raghu, Guna and the two unknown persons) were saying: The spares of the bombs can be united and explosives filled in at Tanjore sea shore; that the bombs which are here should be sent to Lanka within a month if anybody obstructs we should not hesitate to kill them; if they could not be sent before the first week of August, damage should be caused to the important cities of India and Tamil Nadu in Government offices and Railway Stations with the aid of the bombs manufactured here. He has further stated that he overheard this conversation from an adjacent room, that he left the house after some time and that he completely stopped going to their house thereafter. Thus, A-9 has not inculpated himself as one of the conspiratOrs. Obviously, on the basis of these two confessional statements neither A-2 nor A-9 nor any of the co-accused can be convicted for the offence of conspiracy to commit a terrorist ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified area is made punishable under Section 5 of the TADA Act. Under Section 5 of the Explosive Substances Act also making or possessing any explosive substance, under certain circumstances, is made punishable. The learned Sessions Judge has recorded a clear finding that the prosecution has failed to establish that any incriminating article was found from the possession of A-3 and A-4. We have carefully considered the evidence in this behalf and in our opinion, the prosecution has completely failed to establish that House bearing Door No. 359 from which a large quantity of incriminating articles were found was in possession of A-3. The shop from which plastic grenades without gun powder and Galantine sticks were found and with which A-4 was sought to be connected have not been proved to be in exclusive possession of A-4. The evidence discloses that one Damodarsamy was the tenant of the said shop and that Sathimurthi, Chandrakanth and other Tamilians were working in it and A-4 was occasionally going there to tenet Damodarsamy. As regards possession of incriminating articles from other accused, except A-2 against whom there was no such charge, the learned Sessions Judge has not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the said articles were seized by the police officers in presence of a witness from his workshop and that he had produced the same. Thus, the possession of the articles which are held by the learned Sessions Judge to be explosive substances as defined by the Explosive Substances Act, by A-1 and A-5 to A-9 is established by the prosecution beyond any reasonable doubt. On this finding, the question that arises is whether the charge against them under Section 5 of the TADA Act can be said to have been proved. The learned Sessions Judge held that as the said articles were not possessed by any of those accused for commission of a terrorist act they cannot be said to have committed that offence. According to the learned Sessions Judge mere unauthorised possession of Explosive substances in a notified area is not sufficient to convict the accused under Section 5 of the TADA Act and it must further be proved by the prosecution that the accused possessed the same for commission of a terrorist act. This view taken by the learned Sessions Judge is clearly wrong. It is now held by this Court in Sanjay Dutt v. State that in the prosecution for an offence punishable under Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uptive activity was ever intended by him to be committed within India as the evidence discloses that they were to be sent to Cyclone and used there. A-9 can be said to have rebutted the presumption arising out of his unathorised possession of explosive substance in a notified area. It appears that as no separate charge was framed for the offence under Section 5 of the Explosive Substances Act and as the learned Sessions Judge was of the view that the sanction given by the District Collector under Section 7 to prosecute the accused for the offences under that Act was not legal and valid he did not examine whether the accused can be said to have committed the lesser offence under Section 5 of that Act. On re-appreciation of the evidence we have come to the conclusion that A-1 and A-5 to A-9 were found in possession of articles which have been held by the learned Sessions Judge to be explosive substances as defined by the Explosive Substances Act. Even though there was no specific charge under Section 5, it being a lesser offence, the accused can be convicted and punished under that Section, if the ingredients constituting that offence are held established. Section 5 renders any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the proceedings of the Collector it appears that the Inspector of Police had sent his report regarding the evidence collected by him together with a copy of the FIR, the reports of the Forensic Department and other connected record. Thus, the Mahazars under which the explosive substances recovered and seized by the police from different accused were placed before the Collector and on consideration of all that material the Collector had given his consent. We do not think that for obtaining consent of the Collector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary for the investigating officer to submit the statements of witnesses also, who had deposed about the movements of the accused and their activity of manufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid. A-1 and A-2 were also tried for the offence punishable under Section 307 read with Section 34 IPC. In order to establish this charge the prosecution had examined P.W. 1 Pandurangan who had deposed about the manner in which A-1 was found driving his Kinetic scooter in a rash and negligent manner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances it is not possible to infer that the intention of A-1 was to attempt to murder P.W. 1 Pandurangan. Therefore, we maintain his acquittal under Section 307 but set aside his acquittal under Section 353 and convict him for that offence. A-2 had neither done nor uttered anything on the basis of which it can be said that he had shared the intention of committing the offence punishable under Section 307 with A-1. His acquittal, therefore, under Section 307 read with Section 34 has to be maintained. The evidence of P.W. 1 Pandurangan and P.W. 2 Devasayayam clearly establishes that when they tried to take A-1 into custody he had attempted to commit suicide by biting a cyanide capsule. A-1 in his statement made under Section 313 of the Code has also admitted that he had tried to bite a cyanide capsule when he was caught by the police though his version regarding the other part of the incident is different. The evidence of P.W. 1 and P.W. 2 thus receives corroboration from the said statement of A-1. The prosecution, therefore, can be said to have established beyond any reasonable doubt that A-1 had attempted to commit suicide. The learned Sessions Judge has acquitted A-1 as he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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