Holding

The appeal is dismissed; the trial court's refusal to grant bail stands as the confession under Section 32 POTA is not admissible and no valid retraction was established.

Summary

Gulam Mohd (Gulal Shaikh) was charged under several IPC, POTA and Arms Act provisions for alleged terrorist activities. He claimed that a confession recorded under Section 32 of the Prevention of Terrorism Act, 2002 was obtained while he was in illegal custody and later retracted it. He applied for bail under Section 439 of the CrPC and Section 49 of POTA, but the trial court rejected the application, a decision affirmed by the Gujarat High Court. On appeal, the Supreme Court examined whether the confession was admissible and whether a retraction, if any, could affect the bail plea. Relying on the principle that confessions made to police under POTA are not admissible against the accused and noting the absence of any proven confession or valid retraction, the Court upheld the lower courts' denial of bail. The appeal was dismissed.

Issues considered

Whether a confession recorded under Section 32 of the Prevention of Terrorism Act, 2002 is admissible for the purpose of denying bail.
Whether a retraction of such a confession, if it existed, would affect the bail application.
Whether the trial court's refusal to grant bail was justified in view of the evidence and statutory provisions.

Legislation cited

Arms Act, 1950s. 25(1)B, s. 25(1)C, s. 27, s. 29
Code of Criminal Procedure, 1973s. 439
Indian Evidence Act, 1872s. 25, s. 26
Indian Penal Code, 1860s. 120-B, s. 121, s. 121A, s. 122, s. 123
Prevention of Terrorism Act, 2002s. 32, s. 49

Subjects

bailconfessionPOTASection 32retractionillegal custodyterrorismcriminal procedure

Judgment

..•-- [2008] 15 S.C.R. 1039

).._
GULAM MOHD. @ GULAL SHAIKH A
-(
v.
STATE OF GUJARAT
(Criminal Appeal No.1770 of 2008)

NOVEMBER 11, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
' ~
Code of Criminal Procedure, 1973 - s.439 - Prevention
of Terrorism Act, 2002 - s.49 - Bail - Grant of- Confession
~ purportedly recorded under s.32 of POTA - Bail applications c
under the Acts - Rejected by trial Court - High Court affirming
same - Correctness of - Held: Correct - When applicant
was produced for confirmation of the so called confessional
statement, there was no plea that the same was obtained
under pressure - It was claimed that there was retraction - D
--(
If in reality there was no confession, the question of any
retraction did not arise.

The applicant was facing trial for alleged commission
of offence under Penal Code, Prevention of Terrorism
E
Act, 2002 (POTA) and Arms Act. A confessional statement
was purportedly recorded u/s.32 ofPOTA. The applicant
filed application uls.439 Cr.P.C. and s.49 of POTA, which

" I~
was dismissed by the Trial Court. High Court affirmed the
same. Hence the instant appeal.
F
Dismissing the appeal, the Court

HELD: Two other factors need to be noted. When the
appellant was produced for confirmation of the so called
confessional statement there was no allegation that the G
same was obtained under pressure. It is claimed that
there was retraction on 9.8.2003. If in reality there was no
~.~
_( confession, the question of any retraction does not arise.
[Para 8] [1043-D-E]
1039 H
1040 SUPREME COURT REPORTS [2008] 15 S.C.R.

A State (NCT of Delhi) v. Navjot Sandhu a/is Afsan Guru A..
(2005) 11 sec 600, referred to.
·Case Law R~ference:
(2005) 11 sec· soo referred to para 9
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1770 of2008.
..+.
From the final Juagment and Order dated 21.2.2006-0f the
High:Court of Gujarat at Ahmadabad in Criminal Appeal No.
C 1704 of 2004. ·

Nima Ramakrishnan and M.A. Chinnasamy for the·
Appellant.

Hemantika· Wahi for the Respondent
D
The Judgment of the Court was delivered by • ·

DR. ARIJIT PASAYAT, J. 1. Leave granted.
E , 2. Ch'allenge in 'this appeal fs to the order passed. by a
Division Bench of the Oufarat High Court dismis$ing the
Criminal Appeal No.1704 of 2004. Challenge before the High
Court was to· the order passed by learned· Specia1 Judge,
POTA, Ahmedabad .in· Criminal· Mis'cellaneous Application
No.2219 of 2004 irJ connection with I.GR. No.6 of2003 of DCB
F Crime Police Station, Ahmedabad City (presently numbered as
POTA Case N0.12. of2,003). .

3. ·The background facts in a nutshell are as follows;

G An application in terms of Section 439 of the Code of
Criminal Procedure, 1973 (in ·Short 'Cr;P.C.') and Section 49
of the Prevention of Terrorism Act, 2002 (in short 'POTA') was
filed. The applicant is facing trial for alleged· commission of
offences punishable under Sections 120-B, 121, 121A, 122;
H 123 of the Indian Penal Code, 1860 (in short 'IPC') and
-~.
,

s4 GULAM MOHD. @ GULAL SHAIKH v. STATE OF 1041
GUJARAT [DR. ARIJIT PASAYAT, J.]
)...
Sections 3(1)(A)(B), 3(3), 4, 20, 21(2) B, 22(3)(A)(B) of POTA A
and Sections 25 ( 1)B, C, 27 and 29 of the Arms Act, 1950 (in
short 'Arms Act'). According to the applicant, on 3.4.2003 five
boys were picked up from a park of Ahmedabad City and on
4.4.2003 first information report was lodged wherein
commission of offences punishable under the POTA were e
included. Case was registered as CR.No.6 of 2003. According
~.
to the applicant he was picked up by the Crime Branch and
was kept in illegal custody .. Certain news items were published
in newspapers on 30.6.2003. It is pointed out that another co-
accused under trial in another case was not produced. The c
counsel appearing for him made a statement before the Court
that he was in illegal custody of Crime Branch. The name of
that co-accused is Rafiq and same stand was taken. Notice
was issued by the learned Additional Sessions Judge fixing the
date 16.7.2003. The appellant was shown to have been D
--(
arrested in the present case on 15.7.2003. A confessional
statement purported to have been recorded under Section 32
of POTA on 8.8.2003. The appellant does not know Gujarati
and, therefore, the question of making a confessional statement
does not arise and he did not sign before the Deputy
E
. Commissioner. Though he was produced before tne Magistrate
: for confirmation in terms of section 32(5) of POTA, he was
remanded to judicial custody. He made a retraction from the
--'(
so-called confession on 9.8.2003. It was pointed out that the
so-called confession under Section 32 of POTA is not
admissible as the provision is entirely diffe.rent from Section 15 F
of Terrorist and Disruptive Activities (Prevention) Act, 1987 The
trial Court rejected the application prima facie with the following
observations:

"If one looks at the confessional statement of the accused G
himself it provides sufficient material to prima facie point
. . . .-4 out his thick relations with the absconding accused Rasool
Khan @ Rasool Party. He not only has provided him huge
amount of money time and again but, he has worked at
his instance continuously and also made frantic hunt for H
1042 SUPREME COURT REPORTS [2008] 15 S.C.R..

A renting a godown for the purpose of hiding the weapons -
which were to be sent in large quantity from the time the
alleged conspiracy was hatched. Till the date of his arrest
he had been in constant touch with Rasool Party with
·. whom he a-ppears to have talked even· after he left the
B country to base himself at Pakistan. His wife and children
with active connivance of this applicant accused could· ·
cross the border. He had helped him in executing the
various tasks in pursuance of the conspiracy hatched and
therefore, even without taking into consideration the
c confessional. statement of others this prim a facie
sufficiently involves him to de~y him~he bail. The
statements of other witnesses and also of those witnesses
who have provided links to the alleged conspiracy also
prima facie.involve this applicant accused and therefore,
also he does not deserve the bail. The Court a_tso if looks
D
at statement of Kaleemullah one of the key accused in the·
instant case who is also an accused in the other matters,
his alleged role in the involvement at every stage .of
conspiracy and for its execution gets prima fa'cie ·
established.
E
His past criminal antecedent reflected by him in his
confessional statement also would not permit this Court to
grant him the t>ail as there would· be a fair possibility of
his not facing the trial. He may have been a TADA accused
F and provided with the Regt.iiar Bail, but, in every case, the
facts will have to be considered from the documents_
adduced along-with the. charge-sheet and moreover,.
orders of his regular bail in the TADA matters are, not
before this Court for it to appreciate anything." ·
G
. 4. The order of rejection was challenged before the High
Court which, as noted above, dismissed the appeal.

5. In support of the appeal, learned counsel for the
appellant submitted that this Court has categorically held that
H the confession, if any, under Section 32 of POTA made by the
GULAM MOHD. @GULAL SHAIKH v. STATE OF 1043
GUJARAT [DR. ARIJIT PASAYAT, J.]
)..
co-accused is not admissible. It was submitted that there was A
retraction from the confession and, therefore, there was no
material before the trial Court to reject the prayer for bail.

6. Learned counsel for the respondent on the other hand
submitted that the role of the accused is clearly established.
B
His link with the absconding accused Rasul and Mufti Sufian
' is clearly established. There was recovery of country made
j.
·revolver and live cartridges. It was pointed out that it was not
only the statement recorded under Section 32 of POTA but
other factors like recovery, and antecedents were also taken
into consideration.
c
7. It also referred to the evidence which indicated that the
appellant had collected money from one Mohd. Saiyed and
Tanvir and ultimately handed over the money to Mufti Sufian and,
-~ therefore, it cannot be said that except the confession under 0
Section 32 of POTA, there is no other evidence.

8. Two other factors need to be noted. When the appellant
was produced for confirmation of the so called confessional
statement there was no allegation that the same was obtained
E
under pressure. It is claimed that there was retraction on
. 9.8.2003. If in reality there was no confession, the question of
any retraction does not arise.
.... ;--"" 9. In State (NCT of Delhi) v. NavjofSandhu a/is Afsan
Guru (2005 (11) sec 600) it was noted at para 50 as follows: F

"We are therefore of the view that having regard to all these
weighty considerations, the confession of a co-accused
ought not to be brought within the sweep of Section 32(1).
As a corollary, it follows that the confessions of the first and G
second accused in this case recorded by the police officer

- ~ under Section 32(1 ), are of no avail against the co-
accused or against each other. We also agree with the High
Court that such confessions cannot be taken into
consideration by the Court under Section 30 of the
H
1044 SUPREME COURT REPORTS [2008] 15 S.C.R.

A Evidence Act The reason is that the confession made to
a police officer or the confession made while a person is
in policy custody, cannot be proved against such person, ·
not to speak of the co-accused, in view of the mandate of
r· Sections 25 and· 26 of the Evidence Act. If ther~ is a
B confession which qualifies for proof in accordance with the
provisions of the Evidence Act; then ·of course, ·the said
· confession could be considered against th~ co-accused )... .
facing trial under POTA.But, that is not the case here."
. ..
. " 10.Above being the position, we dismiss the appeal. It is,
C however, to be noted that learned counsel for the respondent.
pointed out thatthe case is at the advance stage of trial. It would
be proper for the trial Court to conclude the. trial as· early as
possible.

0 11, The. appeal fails artd is dismiss~d.

D.G: Appeal .dismissed .

. '