Delhi District Court
New Delhi District vs . on 10 March, 2015
IN THE COURT OF MS. NEENA BANSAL KRISHNA, ASJ-01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Case ID No.02403R0027642014
SC No.26/14
FIR No.46/94
PS : Malviya Nagar
U/s 3,4,5 TADA Act,
5 Explosive Substances Act
& 27 Arms Act
In re :
STATE
Vs.
ABDUL KARIM @ TUNDA @
ABDUL QUDDUS @ BABAJI @
HAKIM JI
ORDER ON CHARGE
This is an order on charge against the accused Abdul
Karim @ Tunda in a charge sheet filed under Section 3, 4, 5
Terrorist And Disruptive Activities Act, 1987; Section 5
Explosive Substance Act, 1908; Section 120B IPC and 27
Arms Act that has been filed against him.
State Vs. Abdul Karim @ Tunda 1 of 49
2. The facts in brief are that the Operation Cell of Police,
Lodhi Colony had an information that some Muslim
Fundamentalists, who had an involvement in exploding bombs
on different trains, were collecting different explosive
substances for bomb blasts in Delhi and nearby areas specially
for the occasion of 26th January, 1994 in order to terrorize
people and disturb harmony amongst different sections of
society and to over-awe the government by terrorist acts. On
the basis of secret information received on 17.01.1994, a
raiding team was constituted comprising of ACP S.S Rathi,
Inspector Hawa Singh and 10-12 other police officials who
apprehended the accused Aftab S/o Islamuddin from near the
Bus Stand, A-Block, Saket, Press Enclave Road at about 3.30
P.M. He disclosed that his co-brother Abdul Karim resident of
Pilakhva, U.P was the head of terrorist organization and his
younger brother Abdul Haq lived in Hauz Rani, Delhi who was
having a shop by the name of M/s Abdul Haq Steel Works in
the main market, Hauz Rani and that the said shop was being
used for concealing explosive substance. The other accused
namely Abdul Haq and Abdul Wahid who were also residing
in Hauz Rani, helped them in this work. It was also disclosed
that three bags full of explosive substances were kept in the
shop of Abdul Haq and one bag at the house of Abdul Wahid.
Abdul Haq was to meet Aftab at 3.30 P.M at Saket in order to
plan future terrorist activities. Again, a trap was laid and
Abdul Haq was apprehended from T-Point, Mandir Marg, Saket
at about 4.35 P.M at the pointing out of Aftab. Abdul Haq
State Vs. Abdul Karim @ Tunda 2 of 49
disclosed that his brother Abdul Karim (present accused) was a
leader of terrorist organization and supplied explosives in
different areas. Abdul Haq then led the police to his shop and
got recovered three bags of explosive substances weighing
53.300 Kgs., 36.700 Kgs. And 20.300 Kgs. respectively. The
recovered material was taken into possession, as per the
procedures. The DCP, South District was informed who gave
sanction for registration of FIR under the provisions of Terrorist
and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as TADA) Act. The FIR was registered, accordingly.
3. On further search, six chhuries and two jars containing
some liquid oil was also recovered from the shop of Abdul
Haq. On the same day, accused Aftab led the police to the
house of Abdul Wahid at 226-B, Hauz Rani, Delhi and got him
arrested. One plastic bag containing 40 Kgs. Of explosive
substance was recovered from the double bed of his house
which was also seized by the police. On the basis of disclosure
of accused Abdul Haq dated 19.01.1994, accused Irfan
Ahmed and Afaq Mohd. were also arrested on the
intervening night of 20/21.01.1994 from ISBT, Delhi. They
both made their confessional statements under Section 15
TADA on 24.01.1994 before DCP, Special Cell. Likewise,
accused Irfan Ahmed and Afaq Khan also made a confessional
statements before Addl. DCP, South on 02.02.1994. They all
admitted their involvement in terrorist activities and disclosed
their plan to explode bombs in Delhi and in nearby area on the
State Vs. Abdul Karim @ Tunda 3 of 49
occasion of 26th January, 1994 with a view to take revenge of
the demolition of Babri Masjid. They also confessed bringing of
explosive substances and keeping them in the shop of Abdul
Haq and house of Abdul Wahid.
4. Explosive substances that were recovered were got
analyzed from the office of CFSL. Out of the three bags
recovered from the shop of Abdul Haq, one was found to
contain Potassium Chlorate and other two bags contained
Ammonium Nitrate. The bag recovered from the house of
Abdul Wahid was found to contain Potassium Chlorate. The
sanction under Section 20-A(2) of TADA Act to prosecute the
accused persons, was obtained. On completion of
investigations, the charge sheet against the five accused was
filed under Section 3, 4, 5 TADA Act and Section 5 Explosive
Substances Act and Section 27 Arms Act, while the present
accused Abdul Karim was placed in Column No.2 of the charge
sheet, against whom the proceedings under Section 82/83
Cr.P.C were pending.
5. On the said charge sheet, the charges under Section 3
and 5 TADA Act and under Section 5 Explosive Substances Act
read with Section 120B IPC were framed against the five
accused, besides a charge under Section 25 Arms Act against
accused Abdul Haq on 17.01.1994 to which they all pleaded
not guilty.
State Vs. Abdul Karim @ Tunda 4 of 49
6. After the trial, vide judgment dated 06.12.1999, all
the five accused were acquitted under Section 3 and 5
TADA Act, but were convicted under Section 5 Explosive
Substances Act read with Section 120B IPC and sentenced.
No appeal was filed by either party against the said conviction.
7. Thereafter, on 16.08.2013 the present accused Abdul
Karim on the basis of secret information, was apprehended
from Indo-Nepal Border under Section 41.4(c) Cr.P.C. On
search of his suitcase, various documents, his passports etc.
were recovered. From his personal search 175 US $, Rs.2000
Pakistani currency, Rs.5000 Nepali Currency, Rs.4000 Indian
Currency and one wrist watch, were recovered. He made
various disclosure statements to the police about his
involvement in various terrorist activities over a period of time.
8. During the investigations, on 22.08.2013 the accused led
the police to M/s Prem Chand Jai Chand, 2141, Tilak Bazar,
Delhi, from where he had purchased the chemicals Potessium
Chlorate and Ammonium Nitrate in January, 1994. Ram
Sudhar Yadav who was present in the shop, identified the
accused and gave a statement that many years back he used
to visit his shop and in January 1994 he had purchased the
chemical from the owner of the shop Late Sh. Jai Chand, in his
presence.
9. On 06.09.2013 the accused led the police party to NH-24,
State Vs. Abdul Karim @ Tunda 5 of 49
Akshardham Temple Flyover and pointed out an empty space
on the road and stated that there existed a petrol pump in
January, 1994 from where he had purchased two containers of
oil to be used for serial blasts to be done on 26th January,
1994. The record had been obtained from Indian Oil
Corporation which had confirmed the existence of Petrol Pump
by the name of Shree Oil Company at the said place, of which
Smt. Usha Gupta was the owner.
10. On 12.09.2013, Psycho Profiling Test, Video photography,
finger prints, palm prints and Bomb signature of the accused
were taken in CFSL, CBI, Lodhi Road, Delhi. In the Psycho
Profiling Test, a report was given by Dr. A.K. Singh that the
accused was hiding some information relating to his role in
various bomb blasts Another Pshcho Profiling Test was got
done at CFSL, Gandhi Nagar, Gujarat. According to the report
dated 23.09.2013, the accused had done "Jihad" activities
under the name of preaching Islam. His remote memory recall
gave an indication that although he distinctly recalled the
intricate details of his earlier days, he failed to recall the
immediate past, which raised a doubt about reliability of
information. He cautiously gave the details about those
terrorists who were either imprisoned or dead. Whether he
was giving information under the guidance of LET member/ISI
agent or any other terror group, was required to be verified.
The Letter Rogatories were also written to Saudi Arabia and
Bangladesh for obtaining information about his terrorist
State Vs. Abdul Karim @ Tunda 6 of 49
activities in those countries.
11. On the basis of this evidence, the charge sheet under
Section 173(8) Cr.P.C was filed against the accused in the
Court.
12. The detailed arguments orally as well as in writing have
been submitted on behalf of the prosecution as well as the
accused.
Arguments on behalf of Prosecution
13. It has been argued by Ld. Spl. PP on behalf of State that
there is cogent evidence against the accused for the offence
under Section 3, 4 and 5 of TADA Act, Section 5 Explosive
Substances Act and 120B IPC. It is argued that three bags of
the explosives were recovered from Abdul Haq, while one bag
of explosive was recovered from Abdul Wahid. The accused
Abdul Karim absconded while other five accused who were the
co-conspirators of the conspiracy to commit bomb blasts in
various parts of the country, were apprehended and charge
sheeted. The present accused could not be charge sheeted
because he absconded. He cannot now claim benefit on
account of his own conduct of having absconded.
14. It is submitted that the five accused had made
confessional statements during the investigations wherein they
all clearly explained the role of the accused Abdul Karim as
State Vs. Abdul Karim @ Tunda 7 of 49
being the main person for procuring the explosive material and
preparing explosives and carrying out the bomb blasts. In fact,
it is clearly brought forth from their confessional statements
that the explosives recovered from the possession of Abdul
Haq and Abdul Wahid was intended to be used for committing
bomb blasts on the occasion of 26th January, 1994. The
perusal of the charges that were framed against the five
accused in the original charge sheet clearly has a mention of
the present accused as a co-conspirator. Therefore, the present
accused had been charged and tried jointly along with the
other co-accused. The judgment of Esher Singh Vs. State of
Andhra Pradesh (2004) 11 SCC 585 which provides that the
trial of all the accused must be joint is fully satisfied in the
present circumstances and the confessional statements of the
co-accused are admissible against the present accused. It is
further argued that the confessional statements made under
Section 15 of TADA Act are substantive piece of evidence and
are sufficient to prove the guilt of the accused persons.
15. It is further argued that there is evidence of Ram Sudhar
Yadav owner of M/s Prem Chand Jai Chand a shop in Tilak
Bazaar, Delhi, who has given a statement that the accused
used to visit their shop and purchase chemicals from Late Sh.
Jai Chand, the then owner of the said shop. Also, there is
evidence that has been collected from Indian Oil Corporation
to confirm that there existed a petrol pump in the name of
Shree Oil Company near Akshardham Temple Fly over on NH-
State Vs. Abdul Karim @ Tunda 8 of 49
24 which was owned by Ms. Usha Gupta. The accused Abdul
Kareem in his disclosure statement had disclosed that he used
to purchase the liquid fuel from this petrol pump and it is a fact
that stands corroborated by the record of Indian Oil
Corporation.
16. It is thus, argued that the confessional statements of the
co-accused, Indian Oil Corporation record and the statement of
Sh. Ram Sudhar Yadav prima facie establish the offence under
Section 3 and 5 TADA and Section 5 Explosives Act and Section
120B IPC.
17. It is further argued that at the stage of framing of charge
the Court is not required to sift the evidence minutely, but is to
consider the broad probabilities to ascertain if there is
sufficient evidence to proceed in the case against the accused,
as has been held in th case of Sajan Kumar Vs. CBI (2010) 9
SCC 368. It is, therefore, argued that the charges are liable to
be framed against the accused.
Arguments on behalf of Accused
18. Ld. Counsel on behalf of the accused has argued
that the present accused has not made any confessional
statement under Section 15 of TADA Act. The entire case of
the prosecution rests on the confessions of the co-accused who
have already faced trial which stood concluded in the year
1999. It is argued that the confessions of the co-accused can
State Vs. Abdul Karim @ Tunda 9 of 49
be read against the present accused only if they had been
charged and tried together as provided in the proviso to
Section 15 TADA. In the present case, neither the present
accused was charged nor tried along with other co-accused.
Thus, bare confessional statements of co-accused are not
admissible against the present accused. For this reliance is
place on Esher Singh Vs. State of Andhra Pradesh (2004)
11 SCC 585 and Hardeep Singh Sohal (2004) 11 SCC 612.
19. It is further argued that there is no recovery of any kind
that has been made from the accused. Furthermore, there is
no evidence to connect the accused with the alleged recovery
of th explosives and the liquid fuel. Sh. Ram Sudhar Yadav was
only an employee at M/s Prem Chand Jai Chand. It is highly
improbable for any person to recognize another person who
had visited their shop in the year 1994. His evidence is,
therefore, not believable.
20. The identification of a site where a petrol pump used to
exist is a week type of evidence and does not carry any
weight. It is thus, argued that there is no evidence against the
accused, who is entitled to be discharged.
21. I have heard the arguments and have perused the record.
My observations are as under :
22. A charge sheet under Sections 3 and 5 of TADA Act,
State Vs. Abdul Karim @ Tunda 10 of 49
Section 5 Explosive Substances Act and Section 120B IPC has
been filed against the accused Abdul Kareem @ Tunda under
Section 173(8) Cr.P.C, after his arrest on 16.08.2013.
23. In the case of Union of India Vs. Prafulla Kumar and
Anr. (1979) 3 SCC 4 after averting to various decisions, the
Supreme Court enumerated the principles to be followed at the
time of framing of charge. It was observed that at the stage of
framing of charges under Section 227 of the Code, the Judge
undoubtedly has to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused is made out. A prima facie case would
naturally depend upon facts of each case and there cannot be
any rule of universal application. By and large if two views are
equally possible and the court is satisfied that the evidence
produced before him gives rise to some suspicion but not
grave suspicion against the accused, he would be well within
his right to discharge the accused.
24. It was further held that if there is a strong suspicion for
presuming that the accused has committed an offence, then it
is not open to the Court to say that there is no sufficient
ground for proceeding against the accused. If the evidence
which the prosecution proposes to adduce to prove the guilt of
the accused, even if it is fully accepted without it being
challenged in the cross-examination or by way of rebuttal,
does not show that the accused has committed the offence
State Vs. Abdul Karim @ Tunda 11 of 49
then there is no sufficient ground for proceeding with the trial.
In the case of Dilawar Balu Kurane Vs. State of
Maharashtra (2002) 2 SCC 135 it was noted that the Court
cannot act merely as a post office or a mouth piece of the
prosecution so as to consider the broad probability of the case
the total effect of the evidence and the documents produced
before the Court and the basic informities appearing in the
case. Though the Court is not required to make a roving
enquiry and weigh the evidence as if it was conducting a trial,
but a primafacie case is still required to be considered.
25. In the case of Sajjan Singh (supra) it was held that it is
only during the trial, that the guilt or the innocence of the
accused will be determined and not at the time of framing of
charge. The court, therefore, need not undertake an elaborate
enquiry in sifting and weighing the material. Nor is it
necessary to dwell deep into various aspects. All that the
court has to consider is whether the evidentiary material on
record if generally accepted, would reasonably connect the
accused with the crime. No more need be enquired into.
26. Now let us examine the various Sections under which the
accused has been charge sheeted.
27. Terrorist and Disruptive Activities Act (TADA Act), 1987
was enacted with an object to make special provision for the
prevention of, and for coping with, terrorist and disruptive
State Vs. Abdul Karim @ Tunda 12 of 49
activities and for matters connected therewith or incidental
thereto in the background of escalation of the terrorist and
disruptive activities in the country. It was observed in the
case of Sanjay Dutt vs. State 1994 (5) SCC 410 that there is
material available for a reasonable belief that such activities
are encouraged even by hostile foreign agencies which are
assisting influx of lethal and hazardous weapons and
substances into the country to promote escalation of these
activities. The felt need of the time is, therefore, proper
balancing of the interest of the nation vis-a-vis rights of a
person accused of an offence under this Act.
28. This type of extra ordinary laws are made to contain the
extra ordinary situation by providing harsh drastic and
stringent provisions departing from the procedures prescribed
under the ordinary procedural laws which were found to be
inadequate and not sufficiently effective to deal with the
offenders indulging in terrorist and disruptive activities.
29. The construction made of any provision of this Act must,
therefore, be to promote the object of its enactment to enable
the machinery to deal effectively with persons involved in and
associated with terrorist and disruptive activities while
ensuring that any person not in that category should not be
subjected to the rigours of the stringent provisions of the
TADA Act.
State Vs. Abdul Karim @ Tunda 13 of 49
30. Therefore, it is the obligation of the investigating agency
to satisfy the Designated Court from the material collected by
it during the investigation, and not merely by the opinion
formed by the investigating agency, that the activity of the
'terrorist' falls strictly within the parameters of the provisions
of TADA, before seeking to charge-sheet an accused under
TADA. The Designated Court must record its satisfaction about
the existence of a prima facie case on the basis of the material
on the record, before it proceeds to frame a charge against an
accused for offences covered by TADA.
Section 5 TADA Act, 1987
31. The first head under which the accused has been charged
sheeted is Section 5 of TADA Act read with Section 120B
IPC which deals with possession of certain unauthorized arms
etc. It has been argued on behalf of the accused that none of
the ingredients of Section 5 TADA Act have been made out and
there is no evidence whatsoever in this regard. For the
purpose of invoking Section 5, it has to be proved that the
accused was in possession of an "explosive substance" for
the commission of a terrorist act.
32. The term 'Explosive' has not been defined in the Act.
The dictionary meaning of the word 'Explosive' is 'tendering
to expand suddenly with loud noise"; 'tendering to cause
explosion' (The concise Oxford Dictionary). In the Explosives
Act, 1884 the term 'explosive' has been defined under
State Vs. Abdul Karim @ Tunda 14 of 49
Section 4(d) as follows:
"4.(d) "explosive" means gunpowder, nitroglycerine,
nitroglycol, gun-cotton, di-nitro-toluene, picric acid,
di-nitro-phenol, tri-nitro-resorcinol (styphnic acid),
cyclo-tri-methylene-tri-nitramine, penta-
erythritoltetranitrate, tetryl, nitro-guanidine, lead
azide, lead styphynate, fulminate of mercury or any
other metal diazo-di-nitro-phenol, coloured fires or
any other substance whether a single chemical
compound or a mixture of substanes, whether solid
or liquid or gaseous used or manufactured with a
view to produce a practical effect by explosion or
pyrotechnic effect; and includes fog signals,
fireworks, fuses, rockets, percussion-caps,
detonators, cartridges, ammunition of all descriptions
and every adaptation or preparation of an explosive"
33. From this definition as well, it is evident that the recovery
must of a substance which is capable of explosion.
34. In the case of Sanjay Dutt vs. State 1994(5) SCC 410
it was held by the Apex Court that if the accused is shown to
be in "conscious possession" unauthorizedly in a notified area
of any arms and ammunitions specified in clause 2 and 3 of
Category I or Category III of Schedule I to the Arms rules, 1962
or bombs/dynamite or other explosive substance then no
further nexus with any terrorist or disruptive activities is
required to be proved by the prosecution as statutory
presumption would arise that the said arms explosive
substance was meant to be used for a terrorist or disruptive
activity. It was further observed that the term "explosive
substances" is in the company of bombs and dynamites and
State Vs. Abdul Karim @ Tunda 15 of 49
therefore, the explosive substances contemplated under these
Sections must be of the type of bombs and dynamite.
Therefore, the explosive substances must be a complete article
or device capable of exploding and not the empty shells nor
parts for making a bomb, so long as they are not assembled or
filled with gun powder or other explosive substance as
contemplated by that Section. Even if the accused is found in
possession of shells and parts required for making a hand
granade or bomb in a notified area, but because it is not a
complete article or device capable of exploding, it would not
come within the term "Explosive Substance" under Section
5 of the Act.
35. Likewise, in the case of State of Tamilnadu Vs.
Sivarasan @ Raghu @ Sivarasa & Ors.
MANU/SC/1024/1997 it was noted that it is a complete article
or device capable of exploding which comes within the purview
of Section 5 of TADA Act. Similar observations were made in
Durga Prasad Gupta Vs. State of Rajasthan (2003) 12
SCC 257.
36. In the present case, there is admittedly no recovery of
any explosive from the possession of the accused. The charge
is of being a conspirator for acquiring explosives and explosive
substances in or to carry out bombs on 26th January, 1994,
which may be covered under Section 3 TADA or under Section
120B IPC, but not under Section 5 DATA which deals only with
State Vs. Abdul Karim @ Tunda 16 of 49
the possession of explosives and arms.
37. Even from the two accused namely, Abdul Haq and Abdul
Wahi the recoveries were of Potassium Chlorate and Amonium
Nitrate and fuel oil which in itself would not come within the
definition of "Explosive Substances" as explained in the
case of Sanjay Dutt (Supra). From the allegations made,
even if admitted in toto, no offence under Section 5 TADA is
made out against the accused There is no recovery of
"explosive substance" from the accused. Both the
ingredients I.e the "possession" and "explosive substance"
are missing for even prima facie establishing the offence under
Section 5 TADA Act, 1985.
38. Similar observations were made in the judgment dated
08.12.1999against the other five accused is the first change sheet and on the basis of same evidence, it was concluded that no offence under Section 5 of TADA was made for the reasons given above. The said finding of the Court have not been challenged by either party.
39. The prosecution has not been able to prima facie make out a case under Section 5 of TADA Act, even if its case is admitted in its entirety.
Section 3 of TADA Act 1987 deal with :
"Punishment for terrorist acts - (1) Whoever with intent to overawe the Government as by law State Vs. Abdul Karim @ Tunda 17 of 49 established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. (2) Whoever commits a terrorist act, shall, -
(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (5) Any person who is a member of a terrorists gang or a terrorist organization, which is involved in terrorist acts, shall be punishable with imprisonment for a term which shall not be less than five years but State Vs. Abdul Karim @ Tunda 18 of 49 which may extend to imprisonment for life and shall also be liable to fine.
(6) Whoever holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine."
40. The term "terrorism" is not defined under the Act. It is one of the manifestation of increased lawlessness and cult of violence. It is not possible to give a precise definition of terrorism or to lay down what constitutes terrorism. In Hitender Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 it was observed that terrorism may be described as use of violence when its most important result is not merely the physical and mental damage of the victim, but the prolonged psycological effect it produces or has the potential of producing on the society as a whole. A terrorist activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of ordinary law enforcement agencies to tackle under the ordinary penal law. What distinguishes terrorism from other forms of violence appears to be the deliberate and systematic use of coercive intimidation. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated, under Section 3 (1) of the Act.
41. The "terrorist act" is defined in Section 2(h) as having State Vs. Abdul Karim @ Tunda 19 of 49 the meaning assigned to it in Section 3(1) of the Act. The said Section 3(1) reads as under :
"Punishment for terrorist acts - (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act."
42. The requirements of sub-section (1) to Section 3 are, thus as under :
(1) There should be an intent to overawe the Government or to strike terror in the people or to alienate any section of the society or to adversely affect the harmony amongst different sections of people;
(2) Person should have done an act in such a manner as to cause or is likely to cause death or injury to any person or damage to the property;
(3) Such an act must have been done by using bombs, dynamites, explosive substances etc.; and (4) Such acts must be done to compel the government or any other person to do or abstain from doing anything."
State Vs. Abdul Karim @ Tunda 20 of 49
43. However, sub-section 3 of Section 3 of TADA further provides that entering into a conspiracy to do the above said acts or to abet, advise, incite or knowingly facilitate the commission of the Act or any act preparatory to a terrorist act would also be covered in the definition of "terrorist act".
44. It is also the case of prosecution that there was no commission of terrorist act by the accused. Thus, Section 3(1) is not attracted. However, the allegations are under Section 3(3) that he had entered into the conspiracy with other five co-
accused (who stand acquitted of this charge vide judgment dated 06.12.1999) to commit the terrorist act, especially the bomb blasts on 26th January, 1994. There is also no denial that no terrorist act happened pursuant to the said alleged conspiracy. The question is whether the happening of terrorist activity is a condition precedent for bringing home the offence under Section 3(3) of the Act. This aspect was discussed by Apex Court in Lal Singh etc. Vs. State of Gujarat AIR 2001 SC 746. It was noted that S.3(1) provides for various acts which would be considered as "terrorist acts", and Section 3(2) provides for punishment of such acts. Section 3(3) contemplates acts which are not terrorist acts by themselves but activities prior or subsequent to terrorist act. Under this sub-section, any of the acts of conspiracy, abetment, advise, inciting or knowingly facilitating State Vs. Abdul Karim @ Tunda 21 of 49 either commission of terrorist act or any act preparatory to terrorist act is punishable. Therefore, for a conviction under Sub Section (3) it is not necessary that there should be a conviction under Sub Section (2) for a terrorist act. Therefore, for convicting a person under Section 3(3) commission of terrorist act is not necessary.
45. It thus, emerges that for making out a prima facie case under Section 3(3),the prosecution must show that there was a conspiracy hatched for commission of a terrorist act, as defined in sub-section (1) of the Act. Now, what needs to be examined is whether there existed any evidence in regard to this offence of "conspiracy" against the accused.
Conspiracy
46. As the Primary charge against the accused was of conspiracy, let us consider the law related to conspiracy its definition, essential features and proof. Section 120B IPC defines conspiracy. It says : "when two or more persons agree to do or cause to be done (I) an illegal act or (ii) an act which is not illegal, by illegal means, such an agreement is designated as criminal conspiracy".
47. It is a substantive offence and renders mere agreement to commit an offence punishable as has been held in the case of Ajay Aggarwal Vs. U.O.I [1993 (3) SCC 609]. The pertinent observation made was "Conspiracy" to commit a State Vs. Abdul Karim @ Tunda 22 of 49 crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence for which individual offenders are liable to punishment independent of the conspiracy.
48. It was further explained in the case of State Vs. Navjot Sandhu @ Afsan Guru in Appeal (Crl.) No.373-375 of 2004 decided by Apex Court on 04.08.2005 that those who committed the offence pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but the non-participant conspirators cannot be found guilty of the offence committed by other conspirators. There is hardly any scope for the application of agency in order to find the conspirator guilty of a substantive offence not committed by them.
49. In Kehar Singh & Ors. vs. State (Delhi Administration) [1988 (3) SCC 609], it was noted that "the gist of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, not in attempting to do then, nor in inciting others to do them, but informing of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough."
50. Judge L. Hand in Van Kiper Vs. U.S (13 Fzd 461) said of State Vs. Abdul Karim @ Tunda 23 of 49 conspiracy "when men enter into an agreement for an unlawful end, they become adhoc agents for one another and have made a partnership in crime."
51. In Yashpal Vs. State of Punjab 1977 (4) SCC 540 Goswani J. speaking for Three Judges Bench observed that "the very agreement, the concert or league is the ingredient of the offence".
52. It is not necessary that all the conspirators must know each and every detail of the conspiracy. It was explained that there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators."
53. In the case of State vs. Nalini 1999 (5) SCC 253 S.S.M. Quadri Justice made the following observations :
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intntion would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the State Vs. Abdul Karim @ Tunda 24 of 49 conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
54. Mostly, the conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. The circumstance proved must form a chain of events from which only the irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible [Tanibeert Pankaj Kumar 1997(7) SCC 156].
55. There is always a difficulty in tracing the precise contribution of each member of conspiracy, but then there must be some cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. It was explained in Nalini's Case (Supra) that one who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of the conspiracy and goes along with the other conspirators, actually standing by State Vs. Abdul Karim @ Tunda 25 of 49 while others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.
56. Therefore, while appreciating the evidence, the court must take care of see that the acts or conduct of the parties, are conscious clear enough to infer their concurrence to the common design and its execution. This means that there must be evidence to the effect that the accused who entered into the agreement in the nature of conspiracy, had intended to play and did play some part in the agreed course of conduct involving the commission of offence. But, if there is no evidence attributing any role to the accused in the course of conduct involving the commission of offence, he cannot be held guilty under Section 120B IPC.
57. In the present case, admittedly there is no terrorist activity which had been committed by the accused persons. The confessional statements of the co-accused has only reflected that the explosives were recovered from the house of Abdul Haq and Abdul Wahid. The only evidence that allegedly existed against them were their admissions contained in their confessional statements that the said explosive substances were being procured by the accused Abdul Kareem for the purpose of making bombs, to be exploded on the occasion of 26th January, 1994. No such bomb blasts had taken place.
58. By virtue of sub-section(3) of Section 3 any person who State Vs. Abdul Karim @ Tunda 26 of 49 may not have committed the terrorist Act could still be held guilty of this offence , if he was shown to be a part of the said conspiracy of procuring explosive substances in an illegal manner. There has to be some cogent evidence to show that there indeed existed some conspiracy. The only clue to the existence of conspiracy, is in the confessional statement of the five co-accused who have already faced the trial. It is pertinent to consider the law on admissibility of confession of co-accused recorded under Section 15 TADA Act.
Confessions of the co-accused
59. The main evidence against the accused is, therefore, the confessions of the co-accused that have been made under Section 15 of the TADA Act.
The main questions before us is :
(i) What is the evidentiary value of the confessions made by the other five co-acused against whom the charge sheet had been filed earlier and they have already faced the trial which stood concluded vide conviction dated 06.12.1999; and
(ii) Whether the confessions of the co-accused can be used against the present accused Abdul Karim @ Tunda.
State Vs. Abdul Karim @ Tunda 27 of 49
60. The law relating to confessions is reflected in the Indian Evidence Act. Confessions is a specie of 'admission'. Lord Atkin in P. Narayan Swami Vs. Emperor AIR 1939 P.C 47 elucidated the meaning and purport of expression "confession"
in following words :
"a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession."
61. Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. Taylor in his Treatise on the Law of Evidence Vol.I observed :
"Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law."
62. However, before acting upon a confession the court must be satisfied that it was made voluntarily and without any fear or hope or promise. Section 164 Cr.P.C lays down the certain precautionary rules to be followed by the Magistrate regarding a confession, so as to ensure voluntariness of the confession and the accused being placed in a situation free from threat or influence of police.
63. TADA is a special enactment that was enacted with the objective of defining and countering terrorist activities.
State Vs. Abdul Karim @ Tunda 28 of 49 Section 15 of the Act contains a departure from general law and makes a provision for recording of confessions by the police officers subject to certain conditions and lays down the procedure to be followed.
64. Section 15 of the TADA Act commences with a non- obstante clause by stating that notwithstanding anything contained in the IPC or the Indian Evidence Act, the confession made by a person before a police officer not lower in rank than Superintendent of Police and recorded by such police officer in writing shall be admissible in the trial of such person, co- accused, abettor or conspirator for an offence under TADA Act or rules made thereunder. The proviso appended to the section given out an explanation. It shows that the confession made by a person accused of an offence under the Act of the rules framed thereunder can be used against co-accused, an abettor or conspirator provided he is "charged" for any offence and tried in the same case together with the accused.
65. The constitutional validity of Section 15 was upheld because of the safeguards provided by Rule 15 for recording of confession by police officer, which under the ordinary law is impermissible. In Kartar Singh Vs. State of Punjab 1994 (3) SCC 569 the Constitution Bench of the Apex Court held that in view of the legal position vesting authority on Higher Police Officer to record the confession hitherto enjoyed by the Judicial State Vs. Abdul Karim @ Tunda 29 of 49 officer in a normal procedure, there should be no breach of procedure and the accepted norms of recording the confession which should reflect not only the true and voluntary statement and there should be no room for hyper criticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability. It was thus, concluded that Section 15 was not liable to be struck down since it did not offend Article 14 and 21 of the Constitution.
66. Previously, under section 21 of the TADA Act, a presumption could be drawn as to the commission of offence on the accused based on the confession made by the co- accused. Section 21 of the TADA Act, prior to 1993, was to the following effect :
"21. Presumption as to offences under Section 3(1) IN a prosecution for an offence under sub-section (1) of Section 3, if it is proved-
(a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature, were used in the commission of such offence; or (b) that by the evidence of an expert the fingerprints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; or (c) that a confession has been made by a co-accused that the accused had committed the offences; or (d) that the accused had made a confession of the offence to any person other than a police officer, the Designated Court shall presume, unless the contrary is proved, State Vs. Abdul Karim @ Tunda 30 of 49 that the accused had committed such offence."
"10.By Act No.43 of 1993, clause (c) of Section 21 of the TADA Act was deleted and original Section 15 of the TADA Act also was amended by the very same Act, i.e. Act No.43 of 1993. Original sub-section (1) of Section 15 of the TADA Act was as follows :
"15. Certain confessions made to police officers to be taken in 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 soundtracks from out of which sounds or images can be reproduced, shall be admissible in trial of such person for an offence under this Act or rules made thereunder :
11.As aforesaid, by Act No.43 of 1993, it was amended and the amended provision is as follows :
"15. Certain confessions made to police officers to be taken in 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 soundtracks from out of which sounds or images can be reproduced, shall be admissible in trial of such person or co-
State Vs. Abdul Karim @ Tunda 31 of 49 accused, abettor or conspirator for an offence under this Act or rules made thereunder :
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with he accused. A perusal of these provisions would show that by Act no.43 of 1993, certain serious changes have been made in the matter of admissibility of confession made by a co-accused. Prior to the Amendment Act 43 of 1993, if a confession had been made by a co-accused that he had committed the offence, the Designated Court could draw a presumption that the accused had committed such offence, unless the contrary was proved. This provision was completely taken away and instead of that the confession of a co-accused recorded under Section 15 of the TADA Act was made admissible subject to certain conditions. On major change that was brought into effect was that such confession recorded under Section 15 of the TADA Act by a co-accused could be made use of against that accused provided the co-accused is charged and tried in the same case together with the accused.
67. The scope and ambit of the confession recorded under Section 15 of the TADA Act was considered elaborately by a 3- Judge Bench of this Court in State vs. Nalini (1999) 5 SCC
253. The majority decision in that case was that the confession recorded under Section 15 of TADA Act is substantive evidence." It was held that Section 15 of the TADA Act starts with a non obstante clause as it says that neither the State Vs. Abdul Karim @ Tunda 32 of 49 Evidence Act nor the Code or Criminal Procedure will apply and this was certainly a departure from the ordinary law and when the legislature enacted that the Evidence Act would not apply, it would mean all the provisions of the Evidence Act including Section 30. Therefore, confession recorded under Section 15 of the TADA Act is admissible against the co- accused as a substantive evidence. However, it was clarified that substantive evidence does not necessarily mean substantial evidence. It is the quality of the evidence that matters."
68. In Jameel Ahmed and Anr. Vs. State of Rajasthan 2003 (9) SC 673, the Court observed that "if the confession statement is properly recorded satisfying the mandatory. Provision of Section 15 TADA and the rules made there under and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction of the maker of the confession." It was further observed that a confession recorded under Section 15(1) of TADA stands on the same footing as the confession recorded by the Magistrate and the court can act upon in inspite of its retraction, if it inspires confidence.
69. As regard to confession being used against the co- accused, it was laid down in Jameel Ahmed's case :
"In regard to use of such confession as against a co- accused it has to be held as a matter of caution, a State Vs. Abdul Karim @ Tunda 33 of 49 general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroborator. But this is an exception to general rule requiring corroboration when such confession is to be used against the co-accused."
70. This was also reiterated by the Apex Court in the case of State Vs. Navjot Sandhu @Afsan Guru in Appeal (Crl.) No.373-375 of 2004 decided by Apex Court on 04.08.2005:
"From the above discussion, it emerges that confessions under Section 15 TADA is substantive evidence against the maker as well a the co-accused and can be the basis of conviction. However, the second question is whether the confessions of co- accused satisfy the requirement of "charged and tried together" as provided in the proviso."
71. In S.N. Dube Vs. N.B. Bhoir & Ors MANU/SC/0032/2000 the Apex Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation that would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 is a substantive piece of evidence and can be used against a co-accused as well.
72. In Esher Singh Vs. State of A.P (2004) 11 SCC 585, the crucial words "charged and tried" were considered. It was held that :
State Vs. Abdul Karim @ Tunda 34 of 49 "Crucial words in the provision are "charged and tried". The use of the expression "charged and tried" imposes cumulative conditions. Firstly, the two persons who are the accused and the co-accused in the sense used by the Legislature under Section 15, must be charged in the same trial; and secondly, they must be tried together."
73. Section 2(b) of the Code of Criminal Procedure, 1973 (in short the 'Code') defines "charge" as follows :
"2(b) 'charge' includes any head of charge when the charge contains more heads than one:"
74. The Code does not define what a charge is. It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation of a person for an alleged offence as used in Section 224 of IPC.
75. Chapter XVII of the Code deals with "charge". Section 211 thereof deals with content of charge. Section 273 appearing in Chapter XXIII provides that evidence is to be taken in presence of the accused. The person becomes an State Vs. Abdul Karim @ Tunda 35 of 49 accused for the purpose of trial after the charges are framed. The expression used in Section 15 TADA is "charged and tried". The question of having a trial before charges are framed does not arise, therefore, the only interpretation that can be given to the expression "charged and tried" is that the use of a confessional statement against a co-accused is permissible when both the accused making the confessional statement and the co-accused are facing trial after framing of charges.
76. In State of Gujarat v. Mohammed Atik and Ors., 1998 Cri.L.J 2251 this position was highlighted. Unless a person who charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of trial. Merely because at some stage thee was some accusation, unless charge has been framed and he has faced trial till its completion, the confessional statement if any is of no assistance to the prosecution so far as the co-accused is concerned. In Mohammed Atik's case (supra) it was observed that when it was impossible to try them together, the confessional statement has to be kept out of consideration.
77. In the present case , the present accused could not be arrested and the original charge sheet was filed against the other five accused and present accused was shown in column State Vs. Abdul Karim @ Tunda 36 of 49 no.2. Subsequently, the proceedings under Section 82/83 Cr.P.C were carried out and he was declared a proclaimed offender, but no charge sheet was filed against him. The trial against the other five accused stood concluded vide judgment dated 06.12.1999 and were convicted and sentenced for Section 5 Explosive Substances Act read with Section 120B IPC.
78. Subsequently, the present accused was arrested on 16.08.2013 from Indo-Nepal Border and thereafter, charge sheet filed against him thereafter. The record thus, shows that he was never charge sheeted till 2013, when the present charge sheet has been filed. Once the accused was not charge sheeted, there is no question of his being charged with other co-accused persons. The record also shows that charges were framed only against the other five co-accused. Merely because in the body of charge, his name was mentioned as a co-conspirator would not make him an accused against whom charges were framed. Once, the charges were not framed, where is the question of their being a joint trial. The twin conditions for the admissibility of confessions of co-accused against present accused, therefore,are not satisfied and the confessions of co-accused cannot be read against him.
79. In the case of Mohd. Atik (supra), though the two accused were charged together, but one accused died during the trial. His confession against the surviving accused was State Vs. Abdul Karim @ Tunda 37 of 49 held inadmissible the said accused had died before the conclusion of trial and second condition of "being tried together" was no satisfied.
80. In the case of Hardeep Singh Sohal Vs. State of Punjab AIR 2004 (SC) 4783, similar facts as in hand were involved. One of the accused absconded and was declared P.O before the framing of charge. It was held that the confession of co-accused was inadmissible as they were not tried together.
81. The accused was neither charged nor tried along with the five co-accused. The twin conditions for admissibility of confession of co-accused as provided in proviso to Section 15 are not satisfied. The confession of five co-accused can, therefore, be not read against accused Abdul Kareem.
Section 10 Indian Evidence Act
82. The next question which thus, arises is whether the confession of a co-accused though inadmissible under Section 15 TADA, can be considered as relevant evidence against the present accused involved in "conspiracy" by virtue of Section 10 of Indian Evidence Act. Section 10 of Indian Evidence Act is based on the principle of agency operating between the parties to the conspiracy interse and it is an exception to the rule against hear say testimony. If the conditions laid therein are satisfied, the act done or statement State Vs. Abdul Karim @ Tunda 38 of 49 made by one is admissible against the co-conspirator [AIR 1965 SC 682]
83. Section 10 of Indian Evidence Act was analyzed by Justice Jagannath Shetty in Kehar Singh Vs. State (Delhi Admin.) 1988 (3) SCC 609, as follows :
"From an analysis of the section, it will be seen that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence. There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator. Once such prima facie evidence exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was first entertained, is relevant against the others. It is relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it."
84. Lord Wright said in the case of Mirza Akbar Vs. King Emperor AIR 1940 PC 176 :
"This being the principle, their Lordships thing the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships' judgment, the words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the State Vs. Abdul Karim @ Tunda 39 of 49 conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference in their Lordships' judgment Section 10 embodies this principle. That is the construction which has been rightly applied to Section 10 in decisions in India."
85. In Sardul Singh Vs. State of Bombay 1958 SCR 161 Three Judge Bench of Apex Court made the following observations :
"Where the charge specified the period of conspiracy, evidence of acts of co-conspirators outside the period is not receivable in evidence."
86. In the case of Nalini (Supra) a reference was made to aforesaid cases and it was observed that a distinction was being drawn between communications between conspirators while the controversy was going on with reference to the carrying out of conspiracy and statement made after arrest or after the conspiracy had ended, by way of description of events then past.
87. Likewise, in State of Gujarat Vs. Mohd. Atil 1998 (4) SCC 351 it was observed :
"it is no longer res integra that any statement State Vs. Abdul Karim @ Tunda 40 of 49 made by the accused after his arrest, whether a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act."
88. Similar are the observations made in Mohd. Khalid Vs. State of West Bengal 2002 (7) SCC 334.
89. Thus, the statements made by co-conspirators after their arrest, cannot be brought within the ambit of Section 10 of the Evidence Act and thus, cannot be read in evidence against the accused in the present case. There is nothing to show that the conspiracy continued or the agreement to do the illegal act subsisted even after the arrest of co-accused.
90. This discussion, thus shows that the charge of conspiracy under Section 3(3) TADA and Section 120B IPC is not made out as the only prima facie evidence was the confessions of the co- accused, which are legally not admissible against he accused. No prima face case is disclosed under Section 3(1) and 3(3) of TADA Act.
Section 5 Explosive Substances Act, 1908
91. The other charge under which the accused has been charge sheeted is Section 5 Explosive Substances Act, 1908.
92. In order to bring home the offence under Section 5 of the Explosive Substances Act, 1908, the prosecution has State Vs. Abdul Karim @ Tunda 41 of 49 to prove : (i) that the substance in question is "explosive substance"; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
93. Explosive substance has been defined in Section 2(a) of the Explosive Substances Act. The definition is as follows:
"2(a) "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement."
94. "Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive. 'Explosive substance' includes 'Explosive'.
95. The burden of proof of these ingredients is on the prosecution. The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
96. According to this section, any person who makes the explosive is the offender. Though it was argued that the State Vs. Abdul Karim @ Tunda 42 of 49 accused was an expert in Bomb making and was active since 1970s, but there is not an iota of evidence in this regard.
97. The second aspect is "knowingly has in his possession or under his control any explosive substance or special category explosive substance" for an unlawful object. There has to be, therefore, a conscious possession, to make out an offence under Section 5. The expression "possession" is a polymorphous term which assumes different colours in different contexts. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate and intended.
98. In Gunwant Lal vs. State 1972 Cri.L.J. 1187, possession in a given case need not be physical possession but can be constructive having power and control over the articles in question while the person whom physical possession is given, holds it subject to that power or control.
99. Admittedly, the accused has not been found in possession of any explosive substance nor was it in his control. The claim of the prosecution is that explosive had been procured by the accused and kept in the house of co-accused Abdul Wahid and Abdul Haq. However, there is no evidence to inpute the possession of explosive substances by Abdul Wahid and Abdul Haq, on the accused except the confessions of the two co-accused. The question is whether the confessions of State Vs. Abdul Karim @ Tunda 43 of 49 co-accused recorded under Section 15 TADA can be used for offences under Section 5 Explosive Substances Act.
100. Whether confession recorded under TADA can be used for other offences under other Laws tried along with provisions of TADA even if accused is acquitted under TADA. Section 12 of the TADA Act speaks of the power of designated court and provides that it may try any other offences with which the accused may in the Court be charged at the same trial if the offence is connected with such other offences. The TADA Court is vested with the jurisdiction to try all the offences punishable under the offence of TADA Act. The designated court has the power to try the accused for such offences during the trial and can even convict the accused for such offences and can pass any sentence of conviction of the accused as authorized in the respective statute for punishment of such offence. This aspect was considered by the Constitution Bench of the Supreme Court in the case of Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat (2005) 2 SCC 409. A reference was made to the case of Nalini Singh (Supra) and observed that Section 12 of TADA enabled the designated Court to jointly try at the same trial, any offence under TADA together with any other offence with which the accused may be charged, as per Code of Criminal Procedure. Sub Section (2) empowers the Court to convict the accused if found guilty of such other offence, even if acquitted of charges under TADA. In such a case, it does not become a State Vs. Abdul Karim @ Tunda 44 of 49 trial for offences under other laws. Section 15 of TADA enables the confessional statement of an accused made to the police to be admissible "in the trial of such a person". It means, if there was a trial of any offence under TADA together with any other offence under any law, the admission of the confessional statement would continue to hold good even if the accused is acquitted under TADA.
101. In Prakash Butto (Supra) the conclusions of Nailini Singh's case (supra) was held to pay the correct law. In the case of Manjit Singh @ Mange Vs. State of U.P in TADA Crl. Case No.3/1994 decided on by Apex Court, his Lordship H.L. Dattu, J. has reiterated the above discussed law.
102 It is thus, established that though the confessional statement of the co-accused were recorded under Section 15 TADA, but would be admissible even in reference to the offences under Explosives Act since they are all being tried together. The confessional statements of co-accused are thus, relevant and admissible against present accused, Abdul Karim, provided the two conditions as explained in the case of Esher Singh (Supra) are satisfied.
103. These confessions of co-accused are, however, not admissible against the present accused, as is discussed earlier. There is no other evidence. Even a prima facie case giving rise to some suspicion has not been made out by the prosecution State Vs. Abdul Karim @ Tunda 45 of 49 under Section 5 Explosive Substances Act, 1908.
104. It would not be out of place to refer to Section 6 of Explosive Substances Act, 1908 which provides for "Punishment of Abettors". It provides that any person who by the supply of materials or in any manner whatsoever, procures or is accessory to the commission of offence under the Act, is liable for punishment.
105. The prosecution has introduced the evidence of one Ram Sudhar Yadav who has stated that in 1994 he had seen accused in his presence, purchasing Potassium Chlorate and Amonium Nitrate from shop M/s Prem Chand Jai Chand, Tilak Bazar, Delhi of which Jai Chand was the owner.
106. Even if this entire statement of this witness is accepted, then too it only establishes that the accused had visited the shop in January 1994 for purchase of chemicals. There is neither any bill or any other cogent evidence by which it can be shown that the chemicals purchased were those that were recovered from the co-accused Abdul Haq and Abdul Wahid. Moreover, there is no cogent evidence to show the capacity in which this witness was working in the shop of M/s Prem Chand Jain Chand. In fact, the introduction of this witness shows the desperation on the part of the prosecution to somehow create some evidence when there exists none. The statement of Ram Sudhar Yadav in itself does not even establish any State Vs. Abdul Karim @ Tunda 46 of 49 incriminating fact against the present case what to talk of a prima facie case of procurement of explosive substances by the accused.
107. The prosecution has made another feeble attempt to show that the accused had been procuring liquid fuel from the petrol pump. It has been pointed out that pursuant to his disclosure statement the accused had led the police to a spot under Akshar Dham fly over and stated that there existed a petrol pump from where he had purchased liquid fuel and this fact has been confirmed from Indian Oil Corporation.
108. It is no doubt true that Section 24 & 25 of the Indian Evidence Act make any statement/confession made to the police officer not admissible in evidence. However, this complete bar is lifted partially by Section 27 which provides that such evidence which leads to discovery of a fact pursuant to a disclosure statement shall be admissible. The scope of Section 27 was explained in the landmark decision of Privy Council of PulluKuri Kotayya Vs. Emperor AIR 1947 PC 67. It was explained that the word "fact" must be construed to include the physical fact, the mental fact that the accused had knowledge that it was so hidden and the place from where the recovery is effected. Thus, the recovery of fact pursuant to disclosure statement includes not only the physical object which is recovered but also the knowledge of the place from where it is recovered and also the place of recovery.
State Vs. Abdul Karim @ Tunda 47 of 49
109. In the present case what has been established by the prosecution is that the accused was aware of the existence of a petrol pump under the Akshar Dham fly over, but this evidence does not establish that the accused had purchased liquid fuel from the said petrol pump, as such part of his disclosure statement is not admissible. Mere knowledge of existence of petrol pump without anything else, cannot be termed even as an incriminating fact connected in any way with the case of the prosecution. This evidence of Indian Oil Corporation is of no help to the prosecution in establishing any incriminating fact against the accused.
110. There is, therefore, not an Iota of prima facie evidence against the accused of having procured aided, abetted or being an accessory to the commission of the offence of being in possession of explosive substances under Section 5 of the Act. There is no prima facie case made out under the Explosive Substances Act. The accused is entitled to be discharged under this Section.
Conclusion
111. The prosecution has not been able to produce any cogent, legally admissible evidence against the accused under State Vs. Abdul Karim @ Tunda 48 of 49 Section 3 and 5 TADA Act, Section 5 Explosive Substances Act and under Section 120B IPC. The accused is hereby discharged.
File be consigned to the record room.
ANNOUNCED In the open Court (NEENA BANSAL KRISHNA) today on 10th day of March, 2015 ASJ-01/New Delhi District Patiala House Courts New Delhi State Vs. Abdul Karim @ Tunda 49 of 49