Confessions under POTA

By Surabhi Kaushik, UILS Panjab University

Editor’s Note: Detailed Analysis of the confessions under the POTA, 2002 and citations about TADA, 1897 with related case laws.

PREFACE

This project aims to discuss the legal position of the confession under The Prevention of Terrorism Act, 2002, (POTA) with brief reference to The Terrorist and Disruptive Activities (Prevention) Act, 1987, in the light of the landmark case of State ( N.C.T. of Delhi) v  Navjot Sandhu @Afsan Guru[i]. The project also throws light on the brief history of anti-terrorism laws in India and the controversy relating to enactment and later repeal of POTA.

This project has been divided into two parts. Part I deals with the legal position of Confession under POTA and Part II deals with the case of State (N.C.T. of Delhi) v Navajo Sandhu @Afsan Guru and the latest case law.

PART I

LEGAL POSITION OF CONFESSION UNDER POTA

Prevention of Terrorism Act 2002 (POTA): Brief Introduction

The Prevention of Terrorism Act, 2002 (POTA) was an Act passed by the Parliament of India in 2002, with the aim of strengthening anti-terrorism operations. The act was enacted due to several terrorist attacks that took place in India especially the attack on the Parliament. The act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985–95), and was supported by the governing National Democratic Alliance. The act was repealed in 2004 by the United Progressive Alliance coalition[ii]. This act was opposed by human rights activists as they thought it violated fundamental rights. However, the protagonists of the Act hailed it on the ground that it is useful in stemming ‘state-sponsored cross border terrorism’[iii].

WHY WAS POTA ENACTED?

With the intensification of cross-border terrorism and the continued offensive agenda of Pak ISI targeted at destabilizing India and the post 11th September developments, it became necessary to put in place a special law to deal with terrorist acts. Accordingly, the Prevention of Terrorism Act 2002 (POTA, 2002) was enacted and notified on 28.03.2002. The POTA, 2002 is a special law for the prevention of and for dealing with terrorist activities and clearly defines the terrorist act and the terrorist in Section 3, Sub-Section (1) of the Act. The Act provides the legal framework to strengthen the hands of the administration in our fight against the menace of terrorism and can and should be applied against such persons and acts as are covered by the provisions of this law and it is not meant as a substitute for action under ordinary criminal laws[iv]. The 2001 attack on the Indian Parliament became the immediate reason for the enactment of POTA.

History of Anti- Terrorism Laws in India

THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
PREVENTION OF TERRORIST ACTIVITIES ACT, 2002 POTA
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 TADA
  1. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 – The UAPA was designed to deal with associations and activities that questioned the territorial integrity of India. The ambits of the Act were strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution.
  2. UNLAWFUL ACTIVITIES PREVENTION (AMENDMENT) ACT, 2004 – It would, however, be simplistic to suggest, as some critics did, that the new law has retained all the operational teeth of POTA or it has made only cosmetic changes. The difference between POTA and UAPA is substantial even as a lot of provisions are in common[vi].
  3. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 TADA – The second major act came into force on 3 September 1987 was The Terrorist & Disruptive Activities (Prevention) Act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional.The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Kartar Singh vs State of Punjab[v]. However, there were many instances of misuse of power for collateral purposes. TADA lapsed in 1995.

Confessions under POTA

DEPARTURE FROM THE GENERAL RULE OF EVIDENCE-

POTA makes a departure from the general rule of evidence as u/s 32 the confessions made to a high ranking police officer can be used as evidence against the maker whereas the general rule of evidence is that confessions made to a police officer or in police custody are not to be used as evidence against the maker.

SECTION 32 OF POTA IS ON SIMILAR LINES OF SECTION 15 OF TADA –

Rule as regard to confession in embodied u/s 32 of POTA and it is not much different from section 15 of TADA which is the parent Act of POTA.

Section 32 states- Certain confessions made to police officers to be taken into consideration-

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.

(2) A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:

Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.

(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.

(4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours.

(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody.

This section being controversial in nature has come under scanner many times. As genesis of POTA is similar to that of TADA and S.32 POTA is framed on the lines of S.15 TADA it is pertinent to discuss S.15 TADA as well.

CASES UNDER TADA

  1. CONSTITUTIONAL VALIDITY OF S.15 OF TADA –The constitutionality of custodial confessions with respect to the Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) was challenged in the case of Kartar Singh v. State of Punjab[vii]. The TADA Act was promulgated during the time of the Khalistan insurgency in Punjab and it was contended by the petitioners that the Act was a draconian mechanism to stifle civil rights.Section 15 of the impugned Act which dealt with custodial confession before a Police Officer, not below the rank of a Superintendent of Police and recording of confession in writing or through any recording device was challenged as it was against the established rule envisaged in Sections 25 and 26 of the Evidence Act as well as Sections 162 and 164 of the Criminal Procedure Code and against Article 14 and 21 of the Constitution.

    On the other hand, the State contended that there were adequate safeguards by providing that a confession was admissible only if it were given in the presence of a superior police officer. Moreover, the section did not lay down the probative value of the confession nor did it hold that a conviction could be based on a confession alone. The Supreme Court then went on to examine Section 15 of the Act coupled with Rule 15 annexed to that section.

    The Supreme Court upheld the provisions and stated that the provisions do not violate any provision of the Constitution. It was held that it is important to take into account the statement and reasons of the Act, which came into force due to the gravity of the problem of terrorism endangering the sovereignty, integrity, and security of the nation. In addition, even the public also hesitates to provide evidence risking their lives. Therefore, this section is not unconstitutional and the specific distinction between terrorists and disruptionists and other criminals does not violate the principle of equality as the Act clearly specifies who is a terrorist and disruptionists.

  1. In State v. Nalani[viii] it was held “ On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him, so it is implicit that the same can be considered against all those tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against a co-accused, abettor or conspirator charged and tried in the same case along with the accused.”
  2. In Jameel Ahmed & Anr. V. State of Rajasthan[ix] another case arising under TADA the Apex Court ruled-“In regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a 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 corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused. In addition, it was stated that Section 30 of the Evidence Act, has no role to play when the Court is dealing with confessions under section 15 of TADA either in regard to himself or the co-accused.”

CASES UNDER POTA

  1. CONSTITUTIONAL VALIDITY OF S. 32 OF POTA –The validity of Section 32 of POTA was challenged in People’s Union for Civil Liberties (PUCL) v. Union of India[x].  Here it was argued, that since the accused has to be produced before the magistrate within 48 hours of arrest, the magistrate should be the one who should be recording the confession and that this extended period of 48 hours for production of the accused before the magistrate is not justified and the normal rule of 24 hours should be followed.The court while referring to Kartar Singh’s case, stated that in the wake of terrorism such a provision was required. Also, the provision requiring the production of the accused before the magistrate was an additional safeguard. The Court was satisfied that no rights of the accused are being violated and the section was upheld.
  1. The landmark judgment on S.32 of POTA- State (N.C.T. OF Delhi) v. Navjot Sandhu @Afsan Guru has been discussed in detail subsequently in the project.
  1. The Supreme Court in Saquib Abdul Hameed Nachan v. State of Maharashtra[xi], reiterated the decision in Navjot Sandhu’s case and stated that confession cannot be against a co-accused. Using this interpretation of Section 32 with regard to usage of confession against a co-accused, can it be stated that these provisions are contrary to what is stated in Section 30 of the Evidence Act.The Court has barred the usage of the confession against the co-accused while the Evidence Act states that a confession against a co-accused may be taken for consideration by the Court. The scope of section 30 of the Evidence Act was discussed in Mohd. Khalid v. State of West Bengal[xii]. Here the Court stated a confession against the co-accused can be used only when other evidence points towards the guilt of the accused.

 

PART II

STATE (N.C.T. OF DELHI) V. NAVJOT SANDHU @ AFSAN GURU 2005 SC

Brief History

The 2001 attack was a high profile attack on the Indian Parliament in New Delhi carried out by Pakistan based terrorist organization Jaish-e-Mohammed[xiii]. It was the initiative of Pakistan’s Inter-Services Intelligence (ISI) which has the credit of provoking tensions in India many times in the past. The investigating agencies zeroed down on Mohd. Afzal, Shaukat Guru, S.A.R. Gilani, and Navjot Sandhu but the real masterminds of this attack were-

  1. Mansood Azhar– He is a Pakistani national and one of the three terrorists released by India in 1999 in exchange of hostages of hijacked Air India flight IC-814. He is the prime suspect and Pakistan refused to hand him over to India[xiv].
  2. Gazi Baba- Shah Nawaz Khan is also known as Gazi Baba- the chief commander of Jaish-e-Mohammed and ex Pakistani Army Officer was one of the masterminds of the attacks. He was killed in an encounter by the BSF in Kashmir in 2003[xv].
  3. Tariq Ahmad- A member of Jaish-e-Mohammed, he introduced Afzal Guru to the terrorist organization and motivated him to carry out ‘jihad’ by carrying out the attacks[xvi].

These attacks raised serious issues about the security of India and brought to surface Pakistan’s incessant efforts to carry out terrorist activities in India. These attacks took Indo-Pak relations to a new level of bitterness as ISI’s involvement was very clear even though it was formally denied.

Facts of the Case

1. On 13 December 2001, 5 heavily armed gunmen stormed into the Parliament and inflicted injuries on the security men. In the 30-minute gun battle 5 terrorists, 8 security personnel and one gardener were killed. The MP’s escaped unhurt.

2. FIR- After the incident of attack FIR was registered under IPC, Explosives Substances Act, and Arms Act. The following articles were recovered from the site of crime- white ambassador car with VIP red light and fake sticker of the Home Ministry.

3. Six fake ID cards/

4. Papers containing details of the Parliament house.

INVESTIGATING AGENCIES ZEROED DOWN THE SUSPECTS

The phone details of the sim cards recovered were analyzed and thus Mohd. Afzal came to be connected to the terrorists as frequent calls exchanged between Afzal and the terrorists. Subsequently, it was found out that Shaukat, Gilani, and Agzal were also in touch with each other before the attacks. Afzal and Shaukat were cousins. Navjot Sandhu is the wife of Shaukat. Gilani was the professor of Arabic at the Delhi University. They were all leaders of banned terrorist organization Jaish-e-Mohammad.

INTERCEPTION OF CALLS-

On 13th December 2001, the investigating agencies obtained permission from Joint Director, I.B. as per requirements of the Indian Telegraph Act for keeping surveillance and tapping of mobile numbers of the three suspects. The permission was granted.

On 14th December 2001, an incoming call on Gilani’s number was intercepted. The call was made in the Kashmiri language by a man (brother of Gilani). It was translated in Hindi. It was revealed that they were talking about the parliament attack.

On the same day i.e. 14th December 2001 a call was intercepted which was made by a woman talking in a state of panic and she addressed the male voice as Shaukat. This call was from Srinagar. From these calls, the investigating agencies drew an inference that these people had knowledge about the parliament attack.

ARREST OF GILANI AND NAVJOT-

On the next day, i.e. 15th December 2014 Gilani was arrested. Thereafter he made various disclosures before the investigating agencies about the role of Shaukat and Afzal. He then led investigating agencies to the house of Shaukat where [email protected] was found.

DISCLOSURES –

Navjot then made further disclosures before the investigating agencies. She told that one of the deceased terrorist Mohammad gave Rs10,00,000/- and a laptop to her husband Shaukat and asked him to buy a truck and go to Srinagar. The truck was registered in her name.

AFZAL AND SHAUKAT ARRESTED –

The truck’s number was flashed to the Srinagar police. The Srinagar police were able to find the truck within a very short period of time and within the truck were Afzal and Shaukat. Both were arrested and brought to New Delhi. A laptop and Rs 10 Lakh was recovered from them. They made various disclosures and led the investigating agencies to places and hideouts were the terrorists stayed and planned.

AFZAL IDENTIFIED DECEASED TERRORISTS-

On 17th December 2001, Afzal was taken to identify the bodies of the deceased terrorists. He identified them.

POTO INVOKED-

On 19th December 2001, two important developments took place-

1. The provisions o Prevention of Terrorism Ordinance were invoked. According to the prosecution, this was done after due consideration of the documents recovered.

2. The accused- Afzal, Shaukat and Gilani expressed their desire to make confessional statements before the authorized officer.

CONFESSIONAL STATEMENTS-

On 21st December they were taken before the DCP to make confessional statements. Gilani and Afzal made confessional statements and they confessed to the conspiracy but Gilani refused. They were then taken before the Magistrate to verify the same and to make sure that the confession was not under any threat. However, later the accused persons retracted their confessions.

SANCTION-

On 4th May 2002, the sanction of the Lt. Governor of Delhi was obtained as per the requirements of Section 50 of POTA. After the conclusion of the investigation, the investigating agencies filed report u/s 173 of CrPC against the 4 accused persons. At that time Pota was also in force.

Before the trial started the judge passed an order that post mortem reports and documents relating to arms, explosives etc shall be treated as undisputed evidence in view of consent given by accused and there was no need for formal proof of those documents. But after the commencement of the trial Gilani, Shaukat and Navjot challenged the admissibility of the evidence. Their pleas were dismissed.

JUDGMENT OF TRIAL COURT-

The designated special court presided over by Shri S.N. Dhingra convicted Mohd Afzal, Shaukat and Gilani u/s 121,121A, 122 r/w 302, 307, 120B and under POTA and were awarded death sentence. Navjot Sandhu was acquitted but was convicted u/s 123 IPC and sentenced to 5 years imprisonment.

JUDGMENT OF DELHI HC-

The case went to the Delhi High Court for the confirmation o the death sentence. The division bench of Delhi High Court speaking through Pradeep Nandrajog J. passed the following orders-

  1. confirmed the death sentence of Mohd Afzal and Shaukat Hussain Guru.
  2. the death sentence imposed u/s 121 IPC.
  3. Gilani and Navjot Sandhu were acquitted of all charges.
  4. The judgment of the Delhi High Court gave rise to 7 appeals thus the court went to the Supreme Court of India.

Issues Raised

The following legal issues were raised in this case which were addressed by the Hon’ble Supreme Court of India-

  1. What is the evidentiary value of confession under the Indian Evidence Act?
  2. What is the legal position of confessions under POTA?
  3. Whether the confession of the accused which cannot be proved against the co-accused either u/s 32(1) of POTA or u/s 30 of IEA is relevant as evidence against the co-accused involved in the conspiracy by the reason of section 10 of Indian Evidence Act?
  4. Whether the sanction of Lt Governor of Delhi u/s 50 of POTA is valid as per the Act?
  5. Whether there was manipulation of FIR as POTA offenses were not listed?
  6. Whether there was a conspiracy between the accused persons?
  7. Whether the discovery of facts referred to in Section 27 should be confined only to the discovery of a material object and knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things concrete or non-concrete?
  8. Whether the call records and interception of calls was authentic?

Contentions of the Parties

CONTENTIONS OF THE PROSECUTION REPRESENTED BY SENIOR ADVOCATE GOPAL SUBRAMANIUM –

  1. CONFESSION OF CO-ACCUSED IS COVERED WITHIN THE AMBIT OF SECTION 32(1) OF POTA –It was submitted that section 32(1) of POTA can be construed as to include the admissibility of confessions of co-accused as well. The omission of the words in POTA “or co-accused, abettor or conspirator” following the expression ‘in the trial of such person’ which are the words contained in section 15(1) of TADA does not make any material difference according to him. The expression “shall be admissible in evidence in the trial of such person” does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession.
  2. NO CONFLICT BETWEEN SECTION 32 OF POTA AND SECTION 30 OF IEA –It was submitted that there is no conflict between section 32 of POTA and section 30 of the Indian Evidence Act and therefore the confession recorded under section 32(1) of POTA can be taken into consideration against the co-accused.
  3. SECTION 10 IS APPLICABLE –That Section 10, which is an exception to Section 30 of the Evidence Act, can be availed of by the prosecution to rely on the facts stated in the confessional statement of the accused to prove the existence of the conspiracy and the co-conspirator being party to it. He contends that there is more than prima facie evidence in this case that there was a conspiracy to launch an attack on the Parliament building and therefore, the first ingredient of the reasonable ground of belief is satisfied.The next and more controversial part of the submission is that the statement of one of the conspirators who has made the confession throwing light on the common intention of all the accused can be used in evidence against the co-conspirators or the co-accused irrespective of the fact that such statements were made after the conclusion of the conspiracy and after the accused were arrested.
  4. CONFESSION U/S 10 RELATES TO THE PERIOD OF CONSPIRACY –

    That the interpretation given by courts runs counter to the language of Section 10, and moreover, if that interpretation is to be adopted, there would hardly be any evidence which could be admitted under section 10, the reason being that the statements would necessarily be made by the witnesses after the termination of conspiracy.The correct interpretation is, whether the statements made by the conspirators testifying to the common plan, whether confessional or not, relate to the period of conspiracy or to the period post-termination. The relevance of such statements under Section 10 cannot be whittled down with reference to the point of time when the statement was made. Thus the exclusion of post-arrest statements of the conspirators is not warranted by the language employed in the section and it makes Section 10 nugatory.
  5. INTERCEPTION OF CALLS IS NOT ILLEGAL -There was substantial compliance with Rule 419A of the Indian Telegraph Rules and, in any case, even if the interception did not take place in strict conformity with the Rule, that does not affect the admissibility of the communications so recorded. In other words, his submission is that the illegality or irregularity in interception does not affect its admissibility in evidence there being no specific embargo against the admissibility in the Telegraph Act or in the Rules.

CONTENTIONS OF THE DEFENCE COUNCIL REPRESENTED BY SENIOR ADVOCATES RAM JETHMALANI, SHANTI BHUSHAN, AND SUSHIL KUMAR–

  1. SANCTION BY LT. GOVERNOR OF DELHI NOT VALID UNDER POTA-It was submitted that the sanctions under POTA were not given, nor signed by the competent authority. That in relation to the Union Territory, only Central Government is competent. Delhi being a Union Territory known as the National Capital Territory of Delhi with effect from the date of commencement of the Constitution (69th Amendment Act), the Central Government alone is the competent authority to accord sanction.In the present case, both under POTA and Cr.P.C. sanctions have been accorded ‘by order and in the name of the Lt. Governor of the National Capital Territory of Delhi’. The Lt. Governor did not act on behalf of the Central Government nor did he act as Administrator of U.T. He acted as the Constitutional head of the Government of NCT of Delhi and played the role assigned to him under Section 41 of NCT of Delhi Act, as the authentication in the order shows. Therefore, it is submitted that the sanction purportedly granted under Section 50 of POTA is a nullity.
  2. NON APPLICATION OF MIND BY THE AUTHORITY GRANTING THE SANCTION –It is submitted that there was no proper application of mind by the authority granting the sanction. There was no sanction for the offenses under POTA whereas sanction was given for inapplicable offenses under the Indian Penal Code.The facts constituting the offense have not been stated in the sanction order and no evidence has been adduced to show that the competent authority addressed him to the relevant facts and material. In the first para of the order containing a recital as to the prima facie satisfaction of the Lt. Governor, the POTA offenses are not specifically mentioned. They are however embraced within the residuary terminology “along with other offenses”.
  3. MANIPULATION OF FIR –From the beginning, it was crystal clear that the persons who attempted to take control of the Parliament House were terrorists and there was no apparent reason why the offenses under POTO were not entered in the FIR and this point out that the FIR was manipulated.
  4. DEFECTIVE CHARGES-It was submitted that the first charge which is a charge under Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to wage war and to commit a terrorist act is punishable under Section 121A IPC and Section 3(3) of the POTA respectively. Therefore, according to the learned counsel, the charge under Section 120B is misplaced. It is also contended that the charge does not set out in clear terms, the exact period during which the conspiracy was allegedly hatched. The learned counsel further submits that the alleged confessional statements on which the prosecution relied would clearly show that the conspiracy started only in the first week of December 2001, yet the period of offense was stated to be “on or before 13.12.2001.
  5. CONFESSION OF A CO-ACCUSED CANNOT BE TREATED AS CONFESSION AGAINST MAKER –It is submitted that the confession of a co-accused cannot be elevated to the status of confession operating against maker.
  6. THE WORD ‘EVIDENCE’ HAS NOT BEEN USED U/S 32 OF POTA- 

    It was submitted that the word ‘evidence’ is not used either under Section 32(1) or Section 32(2) of POTA unlike Section 15(2) of TADA which requires the Police Officer to warn the person making the confession that it may be used as ‘evidence’ against him. Therefore, the only route through which the confession can be treated as evidence against the accused is by having recourse to Section 164 Cr.P.C.

  7. CALL RECORDS NOT AUTHENTIC – 

    The call records relating to the cellular phone No. 919811573506 said to have been used by Shaukat have not been proved as per the requirements of law and their genuineness is in doubt. The call records relating to the other mobile numbers related to Gilani and Afzal are also subjected to the same criticism.It is the contention of the learned counsel that in the absence of a certificate issued under sub-Section (2) of Section 65B of the Evidence Act with the particulars enumerated in clauses (a) to (e), the information contained in the electronic record cannot be adduced in evidence and in any case in the absence of examination of a competent witness acquainted with the functioning of the computers during the relevant time and the manner in which the printouts were taken, even secondary evidence under Section 63 is not admissible.

  8. WITNESSES NOT TECHNICAL PERSONS- 

    It was contended by the defense counsel that the witnesses examined were not technical persons acquainted with the functioning of computers, nor they do have personal knowledge of the details stored in the servers of the computers.

  9. INTERCEPTION OF CALLS ILLEGAL – 

    The requirements of Rule 419A of the Indian Telegraph Rules, has not been complied with in the instant case, and, therefore, the tape-recorded conversation obtained by such interception cannot be utilized by the prosecution to incriminate the said accused.

The judgment of the Hon’ble Supreme Court

The Hon’ble Supreme Court represented by the bench of P. Venkatarama Reddi & P.P. Naolekar JJ. and speaking through P. Venkatarama Reddi J. pronounced the judgment and held the following –

  1. SANCTION BY LT. GOVERNOR IS VALID – The Hon’ble Supreme Court held that the sanction given by the LT. Governor of Delhi was not without authority and it was valid under the law. A conjoint reading of section 2(h) of POTA and articles 239 & 239AA of the Constitution of India makes the position clear.’State Government’ is defined in Section 2(h) of POTA and it says that “in relation to a Union Territory, ‘State Government’ means the Administrator thereof”. Article 239AA states that the Union Territory of Delhi shall be called the NCT of Delhi and “the Administrator thereof appointed under Article 239 shall be designated as the Lt. Governor.” By such designation as the Lt. Governor, the constitutional functionary contemplated by Article 239, namely, the Administrator has not lost his status as Administrator.

    The designation of Administrator gets merged into the new designation of Lt. Governor in keeping with the upgraded status of this particular Union Territory. Thus, the Lt. Governor who continues to be the Administrator also derives his or her authority to grant sanction under Section 50 of POTA by virtue of the legislative fiction created by Clause (h) of Section 2 read with Article 239. The Administrator is deemed to be the State Government for the purpose of Section 50 of POTA.

  1. PROPER APPLICABILITY OF MIND BY SANCTION GRANTING AUTHORITY- 

    The Hon’ble Supreme Court rejected the contention of the defense counsel that there was non-applicability of mind by the sanction granting authority and held that it was the result of clumsy drafting. Careless drafting cannot deal a fatal blow to the sanction order. Looking at the substance and reading the entirety of the order, it came to the irresistible conclusion that the sanction was duly given for the prosecution of the accused of the offenses under POTA after the competent authority (Lt.Governor) had reached the satisfaction prima facie in regard to the commission of the POTA offenses as well.

  2. NO MANIPULATION OF FIR AND ADDITION OF POTA OFFENCES WAS JUSTICIABLE- 

    The Hon’ble Supreme Court did not accept the defense council’s contention that FIR was manipulated as POTA offenses were not mentioned in it. It was held that the contention of manipulation of FIR was not raised in the trial court thus the High Court rightly rejected it.Further, the Apex Court laid down that though in its view POTO provisions could have been invoked on the very first day having regard to the nature and manifestations of this grave crime, SC found no justification to characterize the action of the concerned police officers as malafide or motivated.

    In Niranjan Singh Karam Singh Punjabi v Jitendra Bhimraj Bijaya,[xvii] this court laid down that :

    “…the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty-bound to show from the record of the case and the documents collected in the course of the investigation that facts emerging therefrom prima facie constitute an offense within the letter of the law.”

  1. THE CHARGES WERE NOT DEFECTIVE- 

    Section 215 of Cr.P.C. makes it clear that no error or omission in stating either the offense or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.The test of prejudice or reasonable possibility of prejudice was applied by this Court in William Slaney’s case[xviii] in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of A.P. Vs. C. Ganeswar Rao[xix].

    It has not been demonstrated in the instant case as to how the accused or any of them were misled or any prejudice was caused to them on account of the alleged defects in the framing of charges. No such objection was even taken before the trial Court.

  2. THE LAW RELATING TO CONFESSION UNDER THE INDIAN EVIDENCE ACT – 

    Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. ‘Confessions’-which is a terminology used in criminal law is a species of ‘admissions’ as defined in Section 17 of the Indian Evidence Act. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. The following are important provisions to be kept in mind-Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding.

    Section 25 bars proof of a confession made to a police officer.

    Section 26 goes a step further and prohibits proof of a confession made by any person while he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate.

    Section 27 is an exception to the rule of exclusion of a confession made by an accused in the custody of a police officer.

    Section 162 of the Cr.P.C prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any inquiry or trial in respect of any offense under investigation.

    However, it can be used to a limited extent to contradict a witness as provided for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it explicit that the embargo laid down in the Section shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the provisions of Section 27 of the Evidence Act.

    RETRACTED CONFESSIONS- In the case in hand all the accused persons had retracted their confessions, therefore, the question was as to the position of retracted confessions in law. The Apex Court stated that the position as to retracted confessions has been laid down in Bharat v. State of U.P.[xx] by Hidayatullah C.J.–

    A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user.

    “All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true.”

    In Pyare Lal v. State of Assam[xxi] it was held, “A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is the only rule of prudence.”

    In Shankaria v. State of Rajasthan[xxii] twin tests to be applied to evaluate a confession was laid down: (1) whether the confession was perfectly voluntary and
    (2) if so, whether it is true and trustworthy. It was pointed out that if the first test is not satisfied the question of applying the second test does not arise.

    USE OF RETRACTED CONFESSION AGAINST CO-ACCUSED- The use of retracted confession against the co-accused stands at a different footing from the use of such confession against the maker. In Kashmira Singh v. State of Madhya Pradesh[xxiii] it was laid down –

    “The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course, it is not necessary to call the confession in aid.

    “But cases may arise where the Judge is not ‘prepared set on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing that without the aid of the confession he would not be prepared to accept.”

    Section 30 of IEA implies that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The legal position has been clarified in Haricharan Kurmi v. State of Bihar[xxiv] where it was laid down –

    “In dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence”

  1. POSITION OF CONFESSION UNDER POTA- 

    POTA makes a notable departure from the general law of evidence as u/s 32 of POTA a confession made to a high ranking officer is admissible in evidence in the trial of that person.The court criticized the judgment in Jameel  Ahmed & anr. v. State of Rajasthan[xxv] and it was laid down

    “ We have to add a caveat here, while wholeheartedly accepting the view that the confession recorded by a police officer under Section 15(1) of TADA Act (corresponding to Section 32(1) of POTA) stand on the same footing as the confession recorded by a Magistrate and the Court can act upon it in spite of its retraction if it inspires confidence in the mind of the Judge, we feel that the rule of corroboration evolved by this Court as a matter of prudence in relation to a retracted confession recorded by a Magistrate under Cr.P.C. need not be dispensed with.

    “Viewing the confession in the light of other evidence on record and seeking corroborative support therefrom is only a process of ascertaining the truth of the confession and is not extraneous to the first proposition laid down by their Lordships in paragraph 35. Viewed from another angle, we wonder whether a confession recorded by a police officer under the special enactment should have more sanctity and higher degree of acceptability so as to dispense with the normal rule of corroboration and leave it to the discretion of the court whether to insist on corroboration or not, even if it is retracted.

    “The better view would be to follow the same rule of prudence as is being followed in the case of confessions under general law. The confessional statement recorded by the police officer can be the basis of conviction of the maker, but it is desirable to look to corroboration in a broad sense when it is retracted. The non obstante provision adverted to by the learned Judges should not, in our considered view, affect the operation of the general rule of corroboration broadly.”

    CONFESSION U/S 32 OF POTA NOT TO BE USED AGAINST CO-ACCUSED –

    The Hon’ble Supreme Court laid down rejected the contention of the prosecution that a joint trial of accused means that statements of one accused can be used against other co-accused person and laid down –

    “We find no difficulty in accepting the proposition that there could be a joint trial and the expression “the trial of such person” may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words?

    “The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of the law is not at all warranted especially in the case of a law which visits a person with serious penal consequences.

    “The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that obtained under TADA. We cannot countenance the contention that the words ‘co-accused’ etc. were added in Section 15(1) of TADA, ex majore cautela.”

    Therefore, it was held that the confessions of the co-accused ought not to be brought within the sweep of Section 32(1). So, the confessions of co-accused are of no avail against each other.

    The Apex Court made another important observation that a Magistrate could be approached in the same time as an empowered police officer as specified in POTA and more credibility could be afforded to a confession made to a judicial officer. There was no justification for departing from the settled law on the point that the accused needs to be produced before a magistrate within 24 hours of arrest.

    The Court made a very pertinent observation that the earlier decisions of the Court do not substantially justify that a police officer should have the power to record a confession admissible as evidence based on the magnitude and the severity of the offense.

    However, the Law Commission in its 185th report has supported the admissibility of confessions made to police officers only in relation to crimes of terrorism. Two reasons have been provided in this regard, firstly, that in such grave offenses it is very difficult to obtain evidence as no witness is ready to depose before the court and secondly that such offenders are a class of their own and can be differentiated from the usual type of accused[xxvi].

  1. SECTION 10 OF IEA IS NOT APPLICABLE- 

    The question was that whether the confession of the accused which cannot be proved against the co-accused either u/s 32(1) of POTA or u/s 30 of IEA is relevant as evidence against the co-accused involved in the conspiracy by the reason of section 10 of Indian Evidence Act?The Apex Court quoted Kehar Singh v.State[xxvii] where it was held that prima facie evidence should be there that the person was a party to the conspiracy before his acts can be used against his co-conspirators.

    In Mirza Akbar v.King Emperor[xxviii] it was laid down that 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 conspiracy was on foot are relevant as evidence of the common intention, once the 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 a 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.

    In Mohd. Khalid vs. State of West Bengal[xxix], stated the legal position thus: “Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.”

    Therefore, the test is to see whether any particular accused continued to be a member of the conspiracy after his arrest. In the case in hand the prosecution has been not able to prove that conspiracy existed after arrest therefore, S.10 is not applicable.

  1. INTERCEPTION OF CALLS WAS LEGAL – 

    It was held that there is no doubt that the procedural requirements of Chapter V have not been complied with when the interception took place on 14th December 2001. On that date, no offense under POTA was included.On that day interception was governed by S.5(2) of Indian Telegraph Act r/w Rule 419-A of Indian Telegraph Rules. Court held that certain procedural requirements were not complied with but S. 5(2) does not deal with any rule of evidence. Non-compliance of the Telegraph Act does not per se affect the admissibility. Further, on the relevant date, POTA was not in picture thus question of applying S.45 of POTA does not arise.

    Thus after considering the case of the four accused persons individually, the Hon’ble Supreme Court pronounced the following judgment-

  1. Mohd. Afzal was awarded the death sentence.
  2. Shaukat sentenced to 10 years imprisonment u/s 123 IPC.
  3. S.A.R. Gilani and Navjot Sandhu were acquitted.

LATEST CASE LAW ON S. 32 OF POTA

Zafar Umar Khan @ Jafar Umar v State (Govt of N.C.T. of Delhi): 13th March 2013, Delhi High Court

 In this case, the police recovered pistols, unlicensed cartridges, a diary containing anti-India inscriptions with plans to carry out a terrorist attack and 4.5 Lakh rupees from the accused. It was subsequently discovered that the money was provided to the accused by a terrorist organization to carry out attacks in India. The accused was convicted u/s 22 of POTA and u/s 25 of the Arms Act and was sent to 14 years R.I.

The accused made a confessional statement before the DCP, Delhi u/s 32 of POTA. He was told that he need not make a confessional statement and that it will be used against him. He made the confessional statement in his languaue i.e. Urdu and signed it. Later he retracted his confession and the defense council contended that the accused did not know Urdu but the prosecution was able to prove that he knew Urdu. Thus he was convicted on the basis of his confessional statement made in police custody. The court held that the safeguards of S. 32 have been complied with.

The accused had filed an appeal to the High Court and since he had spent 10 out of 14 years in jail the court remitted his sentence and he was released.

CONCLUSION

Anti-terrorism enactments in India have been politicized but the position of the confession under such enactments have remained the same that confession under police custody is admissible and courts have followed this without hesitation but various lapses have been found. In my opinion, S. 32 of POTA shows the over zealousness of the state to procure conviction of terrorists.

Moreover, the decision in Navjot Sandhu’s case has been criticized as being opposed to a fair trial due to the following reasons-

  1. Operation of POTA was against the doctrine of ex post facto laws.
  2. Mohd. Afzal was not given proper legal aid.
  3. His lawyer did not visit him in jail nor cross-examined the prosecution witnesses.
  4. He was convicted on the basis of his confessional statement.
  5. His guilt was not proved beyond reasonable doubt.
  6. Gilani was earlier awarded death sentence and later acquitted of all charges- the question arises why he was awarded death sentence if there was lack of evidence[xxx].

Thus POTA is one of the ‘draconian laws’ as put by UPA which has also called labeled it as the Indian version of US Patriot Act.

Formatted by March 2nd, 2019.

REFERENCES:

[i] 2005 SC

[ii] http://en.wikipedia.org/wiki/Prevention_of_Terrorism_Act,_2002 10.9.2014, 5:00 PM

[iii] http://www.legalserviceindia.com/articles/anti_pota.htm 10.9.2014, 5:00 PM

[iv] http://www.legalservicesindia.com/article/article/anti&-8208-terrorism-laws-in-india-382-1.html 10.9.2014, 5:00 PM

[v] (1994) 3 SCC 569

[vi] http://www.legalservicesindia.com/article/article/anti&-8208-terrorism-laws-in-india-382-1.html 10.9.2014, 5:00 PM

[vii] (1994) 3 SCC 569

[viii] AIR 1999 SC

[ix] 2003 (9) SCC 673

[x] 2004 SCC 580

[xi] MANU/SC/0581/2010

[xii] (2002) 7 SCC 334

[xiii] www.wkipedia.com, 8.9.14, 10:00 AM

[xiv] www.ndtv.com, 8.9.14, 11:00 AM

[xv] http://www.thehindu.com/2003/08/31/stories/2003083104810100.htm, 8.9.2014, 11:00 AM

[xvi] Timesofindia.indiatimes.com/india 8.9.14, 11:00 AM

[xvii] AIR 1990 SC

[xviii] AIR 1956 SC 116

[xix] 1964 3 SCR 297

[xx] AIR 1971 SCC 950

[xxi] AIR 1957 SC 216

[xxii] AIR 1978 SCC 435

[xxiii] AIR 1952 SC 159

[xxiv] 1946 SC 623

[xxv] 2003 (9) SCC 673

[xxvi] http://www.ukessays.com/essays/law/the-rules-of-evidence-under-pota-law-essay.php#ixzz3CuZaUiNm 10.9.2014, 11:00 PM

[xxvii] 1988 (3) SCC 609

[xxviii] AIR 1940 PC 176

[xxix] 2002 (7) SCC 334

[xxx] http://www.theforeignreport.com/2013/03/08/india-was-afzal-guru-denied-a-fair-trial/ 10.9.14, 10:00 PM

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