CENTRAL BUREAU OF INVESTIGATION & Anr. v. MOHD. PARVEZ ABDUL KAYUUM ETC

Judgment

8 S.C.R. 439 439 CENTRAL BUREAU OF INVESTIGATION & ANR. A v. MOHD. PARVEZ ABDUL KAYUUM ETC. (Criminal Appeal Nos.140-151 of 2012) JULY 05, 2019 [ARUN MISHRA AND VINEET SARAN, JJ.] Penal Code, 1860: ss. 120B, 302, 307, 201/120B – ss. 25(1)(B)(a), 27(1) and 5 of Arms Act, 1959 – s. 3(1), (2), (3) and (4) and s.4 of Prevention of Terrorism Act, 2002 (POTA)– Murder and attempt to murder – In two different incidents – Investigation by CBI – In investigation found that both incidents were part of same transaction and in pursuance of common conspiracy with the motive to spread terror among Hindu community after post-Godhra riots – 4 accused absconded – Trial of 12 accused – Conviction by trial court – Appeal before High Court by accused as well as CBI – However, no appeal was filed by CBI against A-2, A-3 and A-12 – High Court set aside the conviction u/s. 302/120B IPC and s. 3(1) of POTA against all the accused, while upholding conviction under rest of the provisions – High Court also reduced the sentence imposed on A-2 – Appeal to Supreme Court – Held: There is ample evidence as to conspiracy leading to attempt of murder of PW-39 and fatal attack on the deceased – Testimony of the eye-witness is reliable and is amply corroborated by medical evidence – High Court adopted hyper-technical approach in assessing the evidence of the eye- witness and was moved by minor discrepancies which do not go to the heart of the matter and shake basic version of prosecution case – Prosecution case is also proved by forensic evidence – Call-records of the accused and recovery of the vehicle used for the offence and the weapon of offence also support prosecution case – Confessional statements made by the accused, which have been recorded after due compliance of s. 32, as well as of s. 52 of POTA also proves involvement of each and every accused in the criminal conspiracy – The confessional statements have been duly corroborated by other evidence – Conviction and sentence of A-1, A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 u/ss. 3(1), (2) and (3) of 439 B C D E F G H 440 SUPREME COURT REPORTS [2019] 8 S.C.R. POTA and s. 302 r/w s. 120B IPC is restored – So far as A-2, A-3 and A-12 are concerned, no further interference is required and their appeals are dismissed. s. 174A – Absconded accused – Prosecution for the charges of murder and attempt to murder under the provisions of IPC and POTA – Also prosecuted u/s. 174A – Trial court convicted him u/s. 174A and acquitted him of all the charges giving him benefit of doubt – High Court modified the sentence by imposing fine of Rs. 21 lakhs with default clause – Appeal to Supreme Court – Held: Trial court rightly extended benefit of doubt to the accused – Since the accused has already served sentence of 17 months and also paid the fine, no interference is required. Prevention of Terrorism Act, 2002: s. 32 – Confessional statement – Safeguards provided under – Discussed. Evidence: Medical evidence and ocular evidence – Inconsistency between – Effect of – Held: In case of such inconsistency, ocular evidence will prevail – Ocular evidence can be discarded only when the medical evidence completely improbablises the ocular evidence. Book – Evidentiary value – Held: Opinion of a person is not in the realm of the evidence – The opinion in the book may be based upon surmises, conjectures and suppositions and hence has no evidentiary value. Newspapers and magazine reports – Evidentiary value – Held: Reports in the Newspapers and Magazines do not constitute evidence – A statement in the Newspaper is merely a heresay and therefore inadmissible in evidence in absence of maker of the statement deposing in court to have perceived the fact reported. Constitution of India: Art. 32 – Writ petition/PIL – By an organization – Seeking further investigation in a criminal/murder case – On the basis that the High Court had acquitted the accused in the criminal case doubting the investigation – Propriety and maintainability of – Held: PIL was filed when the criminal case was being heard in the Supreme A B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 441 Court – It is apparent that the accused persons were instrumental in filing the PIL – The appropriate course would have been an application seeking further or re-investigation by the persons concerned or by the writ petitioner – The motive for filing the PIL was oblique, improper and against discipline and it is clearly misuse of forum of PIL – Even on merit there is no material or ground worthy to direct further investigation or re-investigation in the case – The writ petition is dismissed with cost of Rs.50,000/-. Public Interest Litigation: Scope of – Held: Public Interest Litigation cannot be filed for personal gain or political motive or any oblique consideration – Unnecessary interference in criminal case against prosecution at times may cause serious prejudice to the accused also. Advocates: Professional ethics – Rule of Professional ethics framed by Bar Council of India – Part VI, Chapter II, Section I, r. 8 – Prohibition for advocate to represent the organization/institution of which the advocate is Executive Member –Appearance of advocate in the Court, in defiance of such Rule, would amount to professional misconduct. Dismissing Criminal Appeal Nos. 141, 147 and 148 of 2012, Criminal Appeal Nos. 981, 982 and 983 of 2019, Writ Petition (Criminal) No. 26 of 2019 and disposing of rest of the appeals, the Court HELD: 1. The evidence has been adduced in the case as to the conspiracy which leads to attempt to murder of PW-39 and thereafter fatal attack on the deceased. Accused are associated with it up to the murder and finally to the escape of the assailants after the murder. The evidence evinces training in Pakistan, the various meetings at Masjids, etc. of various accused persons from time to time. There is evidence of confessional statements of convicts, communication over e-mail, seizure of documentary literature at the time of arrest, there is also evidence of providing logistical support and other various types of facilitation, providing money by cash or cheque in respect of accommodation, rent, transportation at Ahmedabad as well as at other places. Evidence is also available with respect to providing mobile phones, A B C D E F G H 442 SUPREME COURT REPORTS [2019] 8 S.C.R. A B C D E F G H transportation, and providing of motorcycles, etc. On the basis of the confessional statement, recoveries and seizures had been made as per the disclosure statements including the seizure of computer hard discs from Cyber Cafes. There is the recovery of documentary evidence also, passenger books proved by hotel caterers, PC owners and opinion of handwriting experts. There is direct and circumstantial evidence as to the involvement of other accused with A-1 in the commission of attempt to murder of PW-39 and murder of the deceased. There is evidence of doing a recce of the Law Garden which used to be frequented by the deceased for taking morning walks, mobile calls bear the time of the fatal attack by the accused persons on the deceased. Besides the mobile tower location of the mobile phone and data of telephone use even shortly before and after the attack on PW-39 as well as on deceased. [Para 15][483-F-H; 484-A-D] State v. Nalini (1999) 5 SCC 253 : [1999] 3 SCR 1 ; Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1 : [2013] 15 SCR 1 - referred to. ‘Commentary on Penal Law of India’ by Hari Singh Gour (Vol. 2), 11th Edn. 1138 – referred to.

2.1 In view of the evidence on record, the statement made by PW-55, the direction of causing of injury No. 7 is fully explained and an eye witness cannot be said to state all these details with mathematical precision. Corroborating evidence is available in abundance. [Para 48] [509-C] Sukhdeep Singh v. State of Uttar Pradesh and Anr. (2010) 2 SCC 177 : [2009] 15 SCR 1252 – referred to.

2.2 As to the precise distance inch-wise position at the time of firing, there is no witness who can give an exact description as suggested in a lengthy cross-examination. Lengthy cross- examination on this line was wholly uncalled for and wholly unnecessary and witness is not supposed to furnish all such details with precision. Though the witness has withstood the test of cross- examination. It is not a case where medical evidence completely improbabilises the ocular evidence only on that case the ocular evidence has to be discarded not otherwise. [Paras 49-50] [509-D-F] CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 443 Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 : [2010] 13 SCR 311 ; State of Rajasthan v. Bhanwar Singh (2004) 13 SCC 147 : [2004] 4 Suppl. SCR 409 – relied on. Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P., (2007) 15 SCC 465 : [2007] 10 SCR 347 ; Shingara Singh v. State of Haryana & Anr. (2003) 12 SCC 758 ; Ram Narain Singh v. State of Punjab (1975) 4 SCC 497 : [1976] 1 SCR 27 – referred to.

2.3 It is not correct to say that number of injuries of the bullet, is not matching with the number of injuries found. There were 7 gunshot wounds whereas 5 bullets were recovered from the body of the deceased. 5 bullet injuries were caused as suggested by ocular evidence of PW-55 and also by medical evidence that 5 bullets were found as injury Nos.5 and 6 were communicating injuries leading ultimately to injury No.1. Thus, there is no inconsistency rather ocular evidence is fortified by the medical evidence. [Para 39] [505-D-E] Rachhpal Singh and Anr. v. State of Punjab AIR 2002 SC 2710 – referred to. “A Colour Atlas of Human Anatomy”; “Gray’s Anatomy” and Modi’s jurisprudence– referred to.

2.4 In the instant case, the ocular evidence of PW-55 is not discredited by the medical evidence. In case of any discrepancy between the ocular or medical evidence, the ocular evidence shall prevail. [Para 57] [515-B-C] Yogesh Singh v. Mahabeer Singh & Ors. (2017) 11 SCC 195 : [2016] 7 SCR 713 ; Sunil Kundu & Anr. v. State of Jharkhand (2013) 4 SCC 422 : [2013] 5 SCR 924; Bastiram v. State of Rajasthan (2014) 5 SCC 398 : [2014] 2 SCR 567 – relied on. Ram Narain Singh v. State of Punjab (1975) 4 SCC 497 : [1976] 1 SCR 27 ; State of Haryana v. Ram Singh (2002) 2 SCC 426 : [2002] 1 SCR 208 – distinguished. A B C D E F G H 444 SUPREME COURT REPORTS [2019] 8 S.C.R.

2.5 The High Court has observed that negligible blood was found near the driver’s seat. The clothes of the deceased bore tell-tale signs of profuse bleeding from injuries on his neck and fore-arm and mobile phone and keys lying under the seat had stains of blood. Thus, it is apparent that there was blood on the seat as well as on the mobile phone and keys which were lying on the floor. As eye witness has clearly stated the position where he was. He has been cross-examined at length, blood on cloth was found, how much, where it was found is not going to discredit the ocular version and an entire incident. [Paras 64 -65] [518-D-E]

2.6 It is not correct to say that since the FIR was not lodged by PW-55, his conduct does not inspire confidence and he was not an eye-witness. PW-55 had gone to inform the factum of the incident to the owner of Chitty Bang, CW-1. It is not uncommon for a person to react in the manner PW-55 has done. He first wanted to inform the owner of the place as to the murder. He was not a literate person. CW-1 has also supported the version of PW-55, the narration of incident to CW-1 by PW-55 is quite natural and inspires confidence and there is due corroboration of the version by CW-1. In the circumstances, non-production of the person who had simply given the lift in a rickshaw to PW-55 and has taken him to the house of CW-1, does not cause any dent in the prosecution version. Merely on the ground of non-examination of another witness the deposition of PW-55 cannot be discarded. By the time PW-55 came back to the spot police had already arrived and the body of the deceased was taken in another vehicle to the hospital. PW-55 or CW-1 had no ill-will or malice against the accused. It does not make any difference whether CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law. Once he has been examined no question to draw any adverse inference against the prosecution arises. [Para 70, 71] [519G-H; 520-A-E]

2.7 There is no embellishment or material improvement in the court’s statement as compared to the one recorded under section 161 Cr.P.C. The question of whether CW-1 had asked PW-55 whether he was speaking the truth and omission of that in A B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 445 the statement under section 161 cannot be said to be a material omission. Material facts have been stated in the statement and there is no contradiction with respect to the material facts with the statement under section 161 Cr.P.C. as to the approximation of time also nothing can be made out by the accused. [Para 72] [520-G-H; 521-A]

2.8 PW-55’s deposition cannot be discredited or tainted in any manner by faulty preparation of sketch. Even otherwise the evidence of sketch is not of much significance. Sometime the sketch may not tally with the version given by a witness. The High Court is moved by sketch which was drawn. PW-55 denied any knowledge of such a sketch. The sketch was not put to PW- 55 in the cross-examination and to obtain his explanation whether it tallied with the assailant. In the absence of cross-examination of PW-55 on this aspect, the defence cannot take any advantage of a discrepancy, if any. I.O. PW-120 has stated that the sketch was prepared in the absence of PW-55. It was drawn only on the basis of his statement recorded under section 161 Cr.PC. The way in which sketch was drawn, it cannot be considered reliable and trustworthy sketch. In the circumstances, sketch in the reference of the accused ought not to have weighed with the High Court because it was prepared in the absence of PW-55. [Para 75-76] [521-G-H; 522-A-B]

2.9 In view of the identification made by the witness in the test identification parade, no dent is caused by the so-called sketch in the ocular evidence of PW-55. Considering the intricate nature of the investigation, there was no undue delay in holding the T.I.P. It was held after 20 days of the arrest of the accused. The accused had been identified in the same. (PW-39) also, later on, had rightly identified A-1 as the assailant. [Para 77] [522-C- D] Subash and Shiv Shankar v. State of U.P. (1987) 3 SCC 331 : [1987] 2 SCR 962 – distinguished.

2.10 It is the duty of the High Court to examine the details of the intrinsic merit of the evidence of eye-witnesses. The High Court has adopted hyper-technical approach in assessing the evidence of PW 55 and has been moved by minor discrepancies A B C D E F G H 446 SUPREME COURT REPORTS [2019] 8 S.C.R. A which do not go to heart of the matter and shake the basic version of the prosecution witness. [Para 78] [522-F; 523-A-B] State of U.P. v. Sahai & Ors. AIR 1981 SC 1442 ; Vijay @ Chinee v. State of M.P. (2010) 8 SCC 191 : [2010] 8 SCR 1150 ; Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana [2011] 7 SCR 1 – relied on.

3.1 The plea was that bullet recovered was not sent for ballistic examination and bullets produced in court differ in colour and the state of deformation recorded during post mortem. However, it is clear that it was not put to the doctor that the bullets which were produced in the court, were not the same which he has recovered. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. It was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect. [Paras 80-82] [523-G-H; 524-A]

3.2 PW-75, the Forensic Expert has stated that 5 shots were fired from a single standard weapon. He compared the seals. The bullets were fired from a .32 revolver. [Para 82] [524-B]

3.3 The prosecution has successfully established the chain of seizure of five very bullets up to production in court which were recovered from the body of the deceased. PW-8 has stated that during autopsy five bullets were recovered from the body of the deceased which was handed over to the police constable (PW-170) in a sealed condition. PW-170 a constable on duty has stated that he received five bullets in the sealed condition and has handed over the sealed five bullets to police inspector in the presence of panch-witness, PW-2. Further, evidence of PW-101 indicates that he has handed over five bullets recovered from the body of the deceased to PW-107 who during the course of the investigation had handed over the same to PW120 on 28.3.2003. The evidence further discloses that PW-120, Dy. S.P., forwarded the said five bullets vide letter dated 4.4.2001 in the sealed condition to V.S.G.H./EBAB/Forensic Medicine through Director, B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 447 CFSL, New Delhi vide letter dated 25.4.2004. Exh.442 is the document of receipts by which five bullets were sent to Central Forensic Science Laboratory, New Delhi with seal intact and specimen. Exh.458 points out that blood found on the five bullets, kurta pyjama and lifted from the car was of ‘B’ Group. Thus, it is apparent that the seals have been found intact and there is positive evidence of the custody of the appellants. Thus, it is far-fetched and intentional for the defence to contend that bullets have been changed. [Para 84] [524-E-H; 525-A-B]

3.4 PW-75 has clearly stated that all the bullets were received in sealed condition from CFSL, New Delhi. He has also identified articles 18/1 to 18/5 in the seal applied on the back side of Khakhi cover which is stated to be muddamal article 18/5 which is the seal he had applied. He has stated that he has examined articles 18/1 to 18/5 of which he has given the details. He has further stated in his examination that the bullets were of blackish grey colour but the one with a jacket would have copper or aluminum colour. If the bullet is of white metal then the metal would be made of steel or aluminium but he has not seen nor examined the white coloured jacket bullet. Thus, it is clear that what has been produced in the court are the same articles which were examined by the forensic expert (PW-75). [Para 85] [525-F-G]

3.5 Even in the absence of the Chemical test of the clothes, the evidence conclusively establishes that the revolver was used in the offence for firing the bullets in question and that has been proved to be a weapon of the offence and recovered too. [Para 86] [525-B]

3.6 The act of disclosure of the weapon and its discovery at the instance of A-1 and the bullets found in the body of the deceased was sent to CFSL, New Delhi wherein it has been opined that they have been fired with the standard weapon (revolver of .32 bore), which had been recovered. [Para 93] [528-B]

3.7 The evidence of DW-8 also makes it clear that breach face alone is sufficient to confirm the opinion if they are found to be repetitive and also of repetitive character of the striations which are due to an individual firearm can be related to a particular A B C D E F G H 448 SUPREME COURT REPORTS [2019] 8 S.C.R. firearm. In the present case, while ignoring the difference caused by tampering of the firing pin found the second time, the basic striation marks remain the same which is individual for every revolver and is not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased. The medical evidence, thus, supports the version of PW-55. [Para 97] [528-G-H; 529-A-B]

3.8 PW-8 who prepared the post mortem report has been discarded while relying upon the version of defence witness DW-6, who had stated that injuries 5 and 6 as communicating injuries. The autopsy doctor’s report cannot be discarded lightly as he had seen the injuries. [Para 98] [529-B-C] Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156 : [1997] 1 Suppl. SCR 96; Eshwaraiah & Anr. v. State of Karnataka, (1994) 2 SCC 677 : [1994] 1 SCR 387 – relied on.

#4. The site map was sought to be discredited by High Court on the basis that PW-120, I.O. of CBI gave a contradictory reply. He said that the original spot map was drawn by pencil and later on drawn in ink. It was clearly stated that at the time of re-drawing the same, later on, the name of A1 was mentioned as it was known by that time. No dent is caused by the said mentioning of the name of the accused and from the explanation given by PW-120, it is apparent that the name has been added later on. [Para 100][530-E-F]

#5. No dent is caused by non-examination of wife of the deceased and other persons as they were not the eye-witnesses. In case of any doubt, they could have been examined as defence witnesses. Wife of the deceased even if examined, would have proved the fact that deceased left for the Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to the non-examination. [Para 102] [531-D-E]

#6. The trial court has extensively dealt with the mobile phone, sim card details and the evidence adduced to prove the A B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 449 usage of the said phone handsets and sim cards by the accused persons. All call records of the accused persons during the entire period of conspiracy and the tower location of the phones of the accused persons near the Law Garden on the day of the murder of the deceased are the strong circumstantial evidence against the accused persons. The accused persons were in possession of mobile phones and were in constant touch with each other before, during and after the commission of the crime through their mobile or landline phones, as depicted in the call details records, in order to execute the conspiracy. [Para 103] [531-F-G; 532-B]

#7. The motorbike used by A-1 and A-6 at the time of the commission of the offence was duly recovered. A-10 purchased the motorcycle from PW-54 and gave it to A-1 in the first week of February 2003 for his movements in Ahmedabad. After the commission of a crime, the motorcycle was handed over by A-10 to PW-45 while fleeing from Ahmedabad and thereafter PW-45 parked the same in the parking of Railway Station from where the same was recovered by CBI in presence of PW-24. On the directions of A-13, PW-57 (hostile witness but statement under section 164 Cr.PC had arranged 3 stolen motor Hero Honda motorcycles and handed over the same to A-4. Thereafter, A4 retained one with him and handed over one each to A-14 and A-5. Later on, these motorcycles were used in the commission of a crime. One of the stolen motorcycles was handed over by A-10 to PW-45 while fleeing from Ahmedabad. PW-45 parked the same in Theatre and later on brought by PS Kagdapeeth from where it was seized by CBI on the pointing of PW-45. A fake number plate was got prepared by A-7 and A-8 from PW-52. This number plate was put on the second Hero Honda motorcycle after the commission of a crime. The said motorcycle was abandoned by A-10 and A-11 while fleeing from Ahmedabad. [Para 104] [532-C-H; 533-A]

#8. Spot map would be admissible so far as it indicates all that the Inspector saw himself at the spot. Any mark put on the spot map on the basis of statements made by the witness to the Inspector would be inadmissible in view of the clear provisions of section 162 Cr.P.C. Even if the witnesses are not reflected in the site plan, that does not bar the prosecution to produce such A B C D E F G H 450 SUPREME COURT REPORTS [2019] 8 S.C.R. witnesses during the trial. Since PW-55 has not been confronted with the site plan and no question had been asked to the witness, thus his ocular evidence cannot be discredited on the basis of the aforesaid omission. [Paras 106, 107] [533-E-F; 534-G-H] Tori Singh & Anr. v. State of U.P., AIR 1962 SC 399 : [1962] SCR 589 ; Pratap Singh & Anr. v. State of M.P. (2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439 – relied on.

#9. The High Court has also employed the reason that Police Inspector PW-101 was supposed to be investigating at 2 p.m. on 26.3.2003 at the scene of the offence, while he was shown present at post mortem at 2.15 p.m. PW-101 in this regard has explained that he handed over the papers to Head Constable. Post Mortem might have been made at 2.15 p.m. but he was not present in the post mortem room at that time. The statement of the witnesses ought to have prevailed as to his presence on the spot. [Para 108] [535-A-B]

#10. The High Court has observed that voluminous records and number of controversies about each piece of evidence, was not necessary to be dealt with. It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy. It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach. It was incumbent upon the High Court to come a close quarter of reasoning employed by the trial Court and assessment of the evidence of the witnesses done by the trial court with great care, in an elaborate manner. The High Court has failed to consider the reasons and has jumped to the conclusion. [Para 111] [535-F-H; 536-A]

11.1 The confession of the accused persons recorded under section 32 of Prevention of Terrorism Act, 2002 (POTA) proves the involvement of each and every accused person in the criminal conspiracy. Section 32 of the POTA contains a non-obstante clause like notwithstanding anything in the Criminal Procedure Code A B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 451 or in the Evidence Act and makes admissible certain confessions made to the Police Officers. However, the same is subject to the provisions of section 32. [Paras 112, 113] [536-B-D]

11.2 The safeguards provided in the provisions contained in section 32 of the Act are (i) Confession to be made by the person before a Police Officer not lower in rank than a Superintendent of Police. (ii) It has to be recorded either in writing or on any mechanical or electronic device like cassettes, tapes or soundtracks. (iii) The Police Officer before recording confession has to appraise the accused in writing that he is not bound to make a confession and in case he makes it, the same may be used against him. (iv) That accused shall not be compelled to make any confession. (v) The confession shall be recorded in an atmosphere free from threat or inducement. (vi) Confession to recorded in the same language in which it is made. (vii) The person who has confessed shall be produced before the court of Chief Metropolitan Magistrate or CJM along with the recorded confession within 48 hours. (viii) The CMM/CJM shall record the statement, if any, made by the person so produced and get his signature or thumb impression on it. If there is any complaint of torture by such a person, he shall be referred for medical examination to an Assistant Civil Surgeon or any officer higher in rank. (ix) The person shall be sent to judicial custody and not to police custody. [Para 114] [537-C-H; 538-A]

11.3 It is apparent from the facts of the case that the provisions of section 32(1), (2) and (3) of POTA have been complied with. The accused was produced before the Special Magistrate for CBI. An application was also filed under section 32(4) of the POTA for producing accused. It was mentioned that the confessional statement has been made by the accused voluntarily without fear, threat or inducement while recorded by the SP, CBI, ACP. The Magistrate has asked the accused whether he was ill-treated or tortured by the CBI while in custody recording confessional statement to which he replied in the negative. He further stated that he has voluntarily made the confessional statement. On that, he was sent to judicial custody till 4.7.2003. A similar process has been followed while recording A B C D E F G H 452 SUPREME COURT REPORTS [2019] 8 S.C.R. A the confessional statement of accused persons by PW-21 under section 32 of POTA. [Paras 121, 122 and 123] [543-F-H; 544-A]

11.4 Safeguards have been provided in various provisions made in section 32. The notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5). Ordinarily the person should be sent to judicial custody. In exceptional cases, police custody can be granted and not otherwise. Non-compliance with usual custody requirement does not per se vitiate the confession. In the instant case, the accused persons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance. [Para 125] [546-C-D] State (NCT of Delhi) v. Navjot Sandhu etc.(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.

11.5 Section 32(4) requires that the person whose confession has been recorded to be produced before the Magistrate along with an ordinary statement of confession within 48 hours. The Magistrate shall record the statement, if any, made by the person so produced and get his signatures or thumb impression. If there is any complaint of torture then medical examination has to be ordered and thereafter he shall be sent to judicial custody. In the present case, the Magistrate has recorded the statement made by the accused and has obtained the signatures. The Magistrate has clearly enquired whether he was ill-treated or tortured by the CBI while in custody, for recording a confessional statement to which he replied in the negative. The accused was asked what he wanted to say to which he responded that he made a voluntary confessional statement. Then he was remanded to judicial custody. In view of the fact that the officer of the rank of S.P. has duly recorded that he has read over the statement and the accused has admitted it to be correct, as in due compliance with the provisions of section 32, so it was not necessary for the Magistrate to read over the same again to the accused, in view of clear language employed in section 32(4) and (5) the duties enjoined upon the Magistrate have been duly observed. There is no requirement of the opening of the sealed envelope by the Magistrate containing the confession and to read it out to the accused. Paras 126- 128] [546-F-H; 547-A-D] B C D E F G H CENTRAL BUREAU OF INVESTIGATION v. MOHD. PARVEZ ABDUL KAYUUM 453 State of Maharashtra v. Bharat Chaganlal Raghani & Ors. (2001) 9 SCC 1 : [2001] 3 SCR 840 – relied on. Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716 : [2014] 7 SCR 48 – distinguished.

11.6 In the facts and circumstances of the present case there was no such prolonged custody so as to render the confessional statement doubtful in any manner only due to the fact of police custody. The impact of police custody would depend upon the facts of each case. What is the impact of police custody on the confessional statement has to be considered also in view of the fact whether the accused were given sufficient time to think over which was given in the instant case. They had legal assistance also as they had communicated with advocates also after they were arrested and then the S.P. explained in writing to them the consequences of making such a statement. S.P. ensured that they were not under any fear or greed etc. and that they were not tortured. Thereafter confessional statement had been made. Sufficient time for reflection had also been given. [Para 131] [549-D-F] Nathu v. State of Uttar Pradesh, AIR 1956 SC 56 – distinguished.

11.7 When several accused persons are involved in various cases and an accused is found involved in a series of cases, obviously, his police remand has to be taken in a particular case. That does not mean that he has been sent to police remand in some other cases would adversely affect the confession. What is envisaged is that with respect to the same crime, he should not normally be subjected to police remand once he makes a statement in the court with respect to his confession under section 32(4) and (5), he has to be sent to judicial custody. That has been precisely followed. In the instant case, it cannot be said that he was subjected to prolonged police custody or he had lost the confidence that he would not be sent to judicial custody. [Para 132] [549-H; 550-A-B]

11.8 In the instant case, under section 32 of POTA, confession made to a senior police officer has been made A B C D E F G H 454 SUPREME COURT REPORTS [2019] 8 S.C.R. A B C D E F G H admissible. Even otherwise the S.P. under section 32(1), (2) and (3) and the concerned Magistrate under subsections 4 and 5 of section 32 have performed their duties effectively as per the law laid down by this Court. [Para 133] [550-C-D]