Supreme Court of India
SEENI NAINAR MOHAMMEDversusSTATE REP. BY DEPUTY SUPERINTENDENT OF POLICE
- Citation
- 2017 INSC 406
- Decided
- 27 April 2017
- Disposal
- Appeal(s) allowed
- Bench
- PINAKI CHANDRA GHOSE
Holding
The sanction under Section 20‑A of TADA was invalid as it was granted mechanically without requisite material or mind, thereby vitiating the entire TADA proceedings and necessitating the quashment of the conviction.
Summary
The appellants were convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and IPC for the murder of a Hindu leader. The Supreme Court examined whether the required prior sanction under Section 20‑A of TADA had been validly obtained. It found that the sanctioning authority had granted approval mechanically, without reviewing the crucial confession that indicated intent to create terror, and without applying its mind to the material. The Court also held that the confessions recorded by the CBI were involuntary and that the test identification parade was a farcical exercise. Because the mandatory sanction was absent and the evidence unreliable, the entire TADA trial was vitiated and the conviction and sentence were set aside. The appeals were allowed and the appellants were released.
Issues considered
- Whether the prior approval under Section 20‑A of TADA was lawfully obtained in the present case.
- Whether the sanctioning authority complied with the mandatory requirements of Section 20‑A(1) and (2) for taking cognizance of a TADA offence.
- Whether the confessions recorded by the investigating agency were voluntary and admissible.
- Whether the test identification parade conducted after media publication of the accused's photographs could be relied upon.
- Whether the conviction under TADA (and ancillary provisions) must be set aside due to non‑compliance with Section 20‑A and involuntary confessions.
Legislation cited
- Arms Acts. 25(1‑A), s. 7
- Code of Criminal Procedures. 465
- Explosive Substances Acts. 4, s. 5, s. 6
- Indian Penal Code, 1860s. 120B, s. 147, s. 148, s. 149, s. 302
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20A(1), s. 20A(2), s. 3(1), s. 3(2), s. 3(3), s. 3(4)
Subjects
TADASection 20-Aprior sanctioninvoluntary confessiontest identification paradevitiated proceedingsterrorist activityconviction quashed
Judgment
[2017] 3 S.C.R. 312
A SEEN! NAINAR MOHAMMED
v.
Sl'ATE REP. BY DEPUTY SUPERINTENDENT OF POLICE
(Criminal Appeal No. 498 of2012)
. B APRIL27,2017
[PINAKI CHANDRA GHOSE AND R. F. NARIMAN, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987 -
s.20A - Cognizance of offence - Prior approval of sanctioning
c authority - Compliance of - On facts, individual attacked by
appellants with weapons, resulting in his death - Conviction of the
appellants uls. J20B rlw ss. 302, 147, 148 and 149 JPC and ss. 3(2),
(3), (4) of TADA and sentenced to life imprisonment by courts below -
On appeal, held: Section 20-A(l) must be construed by indicating
that prior approval from the competent authority is mandatory for
D taking cognizance of offence punishable under TADA - However,
sanctioning authority to keep in mind that application of such
provisions requires strict interpretation and its non-compliance, may
vitiate the entire proceedings in the case - On facts, there was no
sufficient compliance of the provisions of s.20A - Sanctioning
E Authority without pursuing the relevant documents issued the order
of sanction - Sanction was granted mechanically, without
application of mind - Confessions of two accused was involuntary
and contradicted with each other - Sanctioning authority did not
have necessary material before him to show that the alleged act of
causing death of the deceased was done with intent to create terror
F in the minds of public at large - Thus, the approvals granted by
Superintendent of Police and JG, CBI completely invalid lacking
compliance of the requirements prescribed u/s. 20-A - As a result of
illegal sanction order, criminal proceedings for prosecution under
TADA Act vitiated entirely - Order of conviction passed by the TADA
G c9urt quashed and set aside.
Evidence:
Test identification parade - Reliability of - When accused
already seen through newspaper and prosecution witness never
calledfor identification of the accused - Held: Test identification
H
312
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 313
parade was a farce as after the pictures of the accused had been A
published in the newspaper, the identification parade which is a
very weak piece of evide1ce should not have been conducted.
Confessions of accused - Reliability - Held: Non-volunt01y
confession cannot form the basis of conviction - On facts,
confessions of accused being involuntmy as they were taken in the B
immediate custody of high security of CBI, cannot be relied upon.
Allowing the appeals, the Court
HELD: 1. The whole proceedings in the instant case were
vitiated. Therefore, the order of conviction and sentence passed
by the Designated Court is quashed and set-aside. {Para 281[334- C
BJ
2.1 The sanction granted on 16.09.1997 by PW-28 IG,
referred to A-1 's confession only recorded on 3.04.1997 but it·
did not refer to the confession of A-6 which was recorded on
25.10.1994. This was the only document which revealed that A-6 D
addressed and advised A-1 to A-5 to commit the murder of 'R',
with intention to create terror in the minds of public at large in
Tamil Nadu. Therefore, the confession of A-6 is the only document
which refers to the intention to create terror as required under
Section 3 of TADA Act. No other material or no other witness E
spoke about the intention of the accused to commit the murder
with intention to create terror in the minds of public which is
main ingredient for invoking the TADA Act. Unfortunately, the
said document was neither referred to nor relied upon by the
Sanctioning Authority in the sanction order. [Para 7][320-F-H]
F
2.2 The confession of A-1 is totally contradictory to the
confession of A-6. It appears from the facts that the Investigating
Officer suppressed the material document by not placing the same
before the Sanctioning Authority. The TADA court convicted the
accused under the TADA Act on the basis of confession of A-6
and not on the basis of any other material. The other point which G
is noted that the Sanctioning Authority-PW-28 admitted in hi~
deposition that he did not know Tamil and did not go through the
entire records which were in Tamil. Therefore, it is clear that the
Sanctioning Authority did not apply his mind to the records in its
entirety and granted sanction only after considering certain H
314 SUPREME COURT REPORTS [2017] 3 S.C.R.
A documents which were in English. Therefore, it is accepted that
the Sanctioning Authority without perusing the relevant
documents issued the order of sanction and thereby it has to be
accepted that the sanction was granted mechanically.[Para 8)[321-
A-C]
B 2.3 There cannot be sufficient compliance of the provisions
of s.20A of TADA for the non-application of mind by sanctioning
authority while granting approval, for taking cognizance under
TADA Act and undermining the objective of the A.ct. This relevant
provision was inserted by Act 43 of 1993 which came into force
on 23.05.1993 which is prior to the date of commission of the
C offence i.e., 10.10.1994 disputed in instant appeal which makes
it crystal clear that Section 20-A(l) must be construed by
indicating that prior approval from the competent authority is
mandatory for taking cognizance of offence punishable under
TADA. However, it shall always be borne in mind by the
D sanctioning authority that application of such provisions which
forms part of penal statutes requires strict interpretation and
failure to comply with the mandatory requirement of sanction
before cognizance is taken, as mentioned in TADA, may vitiate
the entire proceedings in the case. [Para 10)[321-E-Gl
Hussein Ghadially @ MH.GA Shaikh & Ors. v. State
E
of Gujarat (2014) 8 SCC 425 : [20141 9 SCR 364 -
referred to.
2.4 A careful perusal of the requisition given by PW-24 to
PW-26 for seeking prior approval reveals that a single murder
on 10.10.1994 was mentioned therein but no act of murder with
F intent to create 'terror and panic in the minds of public, which is
the main ingredient of the offence under TADA Act, was
mentioned. The incident prior to this murder relating to objections
raised by Hindus on the construction of mosque near Hindu
temple in Madurai was mentioned in the deposition of PW-24,
G which could nowhere be referred or connected to act of murder.
Admittedly, as per his deposition, till 19.10.1994, none gave any
complaint that there was any commotion or violence at the place
of occurrence, resultantly connecting the case under IPC to be a
prima facie case under TADA leading to seeking prior approval,
which if granted, would be bad in the eyes of law. [Para 1211323-
H E-G]
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 315
2.5 The Sanctioning Authority under Section 20-A(2) of A
TADA, i.e. PW28- IG, CBI in instant case, had granted permission
to file a case under TADA on 16.09.1997 vide permission order.
The sanctioning authority did not have necessary material before
him to show that the alleged act of causing death of the deceased
Was done with the intent to create terror in the minds of public at B
large. Had there been any such terror in the minds of people,
theil as an aftermath of the death of the deceased there would
have been an adverse effect on the harmony amongst different
sections of people in the vicinity of the place of incident. However,
no such incident of striking terror in the minds of people or
adverse effect on the harmony amongst any section of society C
was reported. The alleged act of causing death of an individual
was only an attack by the accused-appellants with weapons on
the deceased who later succumbed to the injuries. [Para 13][323-
H; 324-C-D]
2.6 Sanction under Section 20-A(2) of TADA in' respect of D
A-6 was granted by PW-29 on 16.09.1998, which was delayed
.due to time consumed in the investigation ag::i1lst him. The same
is also unlawful for the reasons mentioned. Furthermore, cross
examination of PW-30 is also reflecting the non-application of
mind when after specifically stating about relationship of the
E
accused-appellants with Alumma organization, it was deposed by
him that he did not collect any evidence or document to show
that accused belonged to that organization. The said sanctions
have not been proved by the depositions of these witnesses. [Para
14][324-D-F] ·
F
State of Maharashtra v. Mahesh G Jain (2013) 8 SCC
119 : (2013] 3 SCR 850; Kootha Pernmal v. State (2011)
1 SCC 491 : [2010J 14 SCR 864 - referred to.
2.7 It would be dangerous for this Court, in the absence of
legislative attempt, to provide with an opinion to define whether G
any activity falls within the definition of terrorist activity or not.
After all the legislative intent behind enactment of any statute
shall prevail. [Para 18)(327-A-B)
Girdhari Parmanand Vadhava v. State of Maharashtra
H
316 SUPREME COURT REPORTS [2017] 3 S.C.R.
A (1996) 11SCC179: [1996[ 6 Suppl. SCR 631 - relied
on.
Kalpnath Rai v. State (Through CBI) (1997) 8 SCC 732;
Kartar Singh v. State of Punjab 1994 (3) SCC 569 :
[1994) 2 SCR 375; Hitendra Vishnu Thakur & Ors. v.
B State Of Maharashtra & Ors. (1994) 4 SCC 602 : [1994]
1 Suppl. SCR 360 - referred to.
2.8 The respondent cannot make out a case under the
provisions of TADA in the absence of intention to cause terror in
the minds of people or strike on them with terror. Therefore, the
C approvals granted by Superintendent of Police-PW-26 and IG,
CBI-PW-28, in the facts and circumstances of the instant case,
were completely invalid lacking compliance of the requirements
prescribed under Section 20-A of TADA. As a result of illegal
·sanction order the criminal proceedings for prosecution under
the TADA Act are vitiated entirely. The court under the TADA
D Act grossly erred in taking cognizance of the case. [Paras 19,
201[328-E-F; 329-GI
Ashrajkhan alias Babu Munnekhan Pathan & Am: v.
State of Guajrat (2012) 11 SCC 606 : [2012[ 12 SCR
1033 - referred to.
E 2.9 Though there is little difficulty in accepting the view
taken by the Designated Court in its entirety, as it arises from
several notable facts, it is not and cannot be disputed that the
deceased was killed at the entrance of his house. The post-
mortem report which was duly proved by the doctor also
F mentioned the cause of death being shock and haemorrhage due
to multiple cut and stab injures sustained by the deceased
somewhere near 5 O'clock in the morning on 10.10.1994. PW-1
was never called for identification of the accused. [Para 221[330-
B-CJ
G 2.10 As regards, the question of reliability of the test
identification parade when admittedly accused were already seen
through newspaper, the identification parade was a farce as after
the pictures of the accused had been published in the newspaper,
the identification parade which is a very weak piece of evidence
should not have been conducted. [Paras 23, 24)[330-D; 331-A-
H BJ
SEENI NAINAR MOHAMMED v. STATE REP. BY DSP 317
Suresh Chandra Bahri v. State of Bihar (1995) Supp 1 A
SCC 80 : (1994) 1 Suppl. SCR 483 - referred to.
2.11 The confessions of A-1 and A-6 were not voluntary as
evidenced from the materials since those confessions were not
recorded in a free atmosphere, they were taken in the immediate
custody of high security of CBI and a non-voluntary confession B
cannot form the basis of conviction. Further, the said confessions
could not be relied upon as they contradicted with each other.
[Paras 9, 261(321-D; 333-CJ
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005) 2 Suppl. SCR 79 - referred to. c
Case Law Reference
[2014) 9 SCR 364 referred to Para 10
(1997) 8 sec 732 referred to Para 11
[2013] 3 SCR 850 referred to Para 14
D
(2010) 14 SCR 864 referred to Para 14
[1994] 2 SCR 375 referred to Para 16
[1996] 6 Suppl. SCR 631 relied on Para 17
(1994] 1 Suppl. SCR 360 referred to Para 18
(2012) 12 SCR 1033 referred to Para 19 E
[1994) 1 Suppl. SCR 483 referred to Para 23
(2005) 2 Suppl. SCR 79 referred to Para 25
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
498 of2012. F
From the Judgment and Order dated 08.09.2011 of the Designated
Judge for TADA Cases, Tirunelvei in TADA Case No. 1 of 1997
WITH
Cr!. A. No. 867 of2012.
M. Karpaga Vinayagam, Salman Khurshid; Sr. Advs, K. K. Mani, G
S. Ansar Mohammed, Mrs. T. Archana, S. I. Abdul Kalam Bagadur
Sha, Syed Mahaboob, Dr. S. K. Saamy, T. R. B. Sivakumar, Antony
Julian, P. K. Dey, Raj iv Nanda, T. A. Khan, Shreyasi Chakrabarty, Manish,
Ms. Shilpi Dey, Ms. Reena Rai, Mukesh Kumar Maroria, Advs. for the
appearing parties. H
318 SUPREME COURT REPORTS [2017] 3 S.C.R.
A The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J. I. These two appeals are
directed against the judgment and order dated 8'" September, 2011 passed
by the Court of Designated Judge for TADA Cases, Tirunelveli, in TADA
Case No.111997, whereby the learned Designated Judge found the
B appellants herein guilty for offences punishable under Section 120(B)
read with Sections 302, 147, 148 & 149 of the Indian Penal Code, 1860
(hereinafter referred to as "IPC") and Sections 3(2), 3(3) & 3(4) of the
Terrorist and Disruptive Activities (Prevention) Act, I 987 ( for short
"TADA") and sentenced them to life imprisonment.
c 2. The facts of the case have been elaborately discussed by the
learned Special Judge of the Designated Court for adjudication of TADA
cases. We need not, therefore, recapitulate the entire.factual backdrop
in which the appellants were tried, found guilty and sentenced, excepting
where it is absolutely necessary to do so. There are six accused in this
case, namely, Sahu! Hameed (A-1), Raja Hussain (A-2), Zubeir (A-3),
D Zakir Hussain (A-4), Azeez (A-5) and Seeni Nainar Mohammed (A-
6). On 10'" October, 1994, at about 06:30 a.m., A-1 to A-6 in pu.-suance
of the conspiracy hatched amongst them, went to the house of one
Rajagopalan (since deceased), who was President of Hindu Munnani
Association, with a motive to kill him. A day before the incident, A-6
E Seeni Nainar Mohammed had advised his brother Raja Hussain (A-2)
to meet him after completing the task of murdering Raj agopalan. When
Rajagopalan, after taking the newspapers from a newspaper sub-agent
Saravanam (PW-3), was going through the newspapers facing East at
his house, accused persons came from left hand side of Rajagopalan
and while A-1 caught hold of the neck ofRajagopalan from behind, A-3
F and A-4 took out knives and stabbed on his ·stomach. A-5 showing a
sickle threatened the public to run away and repeatedly attacked the
said Rajagopalan and thereafter they ran away towards west. On hearing
the noise, PW-I Krishnaveni wife of the deceased came out of the house
and saw that her husband was lying down in a pool of blood. The
G occurrence was witnessed by PW-I, PW-3, PW-4, PW-S & PW-6. PW-
1 informed about the incident to the Market Police Station on telephone.
Upon receiving the information, PW-2 Inspector of Market Police Station
rushed to the spot and enquired from PW-1 who gave a written complaint
to him.
H 3. Law was set into motion when PW-2 Stalin Michael, Inspector
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 319
[PINAKI CHANDRA GHOSE, J.]
registered the FIR Ext.P2 at 07:30 a.m. at Police Station Thilagar Ground, A
Madurai District, under Sections 147, 148 and 302 of IPC in Crime
No.2490/1994. On the orders of DGP, the case was transferred from
focal Police to CBCID and Shri Rajagopal, DSP (PW-24) took up the
investigation, went to the place of occurrence, examined the witnesses
and recorded their statements. Since PW-24 was holding additional B
charge, he could not accomplish the task of investigation and further
investigation was taken up by Shri Jones, DSP (PW-30) and after receiving
prior approval from Superintendent of Police (PW-26), registered the
case under TADA. The records of the case were transferred to the
learned Designated Judge for TADA Cases and after trial, the learned
Designated Judge vide his judgment and order dated 08.09.2011 convicte_d C
all the accused in TADA Case No.1/1997 holding that the prosecution
has proved the first charge as against A-1 to A-6. A-1 to A-5 were
convicted under Section 3(2) read with Section 3( 1) of TADA read with
Section 149 ofIPC and sentenced to undergo life imprisonment and to .
pay a fine of Rs.10,000/- each, and in default of payment of fine, to D
undergo rigorous imprisonment for 1 year. However, A-6 was convicted
under Section 3(2) read with 3(1) of the TADA read with Section 109 of
IPC and under Section 3(4) of TADA and sentenced to undergo life
imprisonment and also to pay a fine of Rs.5,000/- and in default of payment
of fine, to undergo rigorous imprisonment for 1 year. However, all the
sentences were directed to run concurrently. Hence, the present appeals E
under Section 19 of TADA read with the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970. Criminal Appeal No.498
of2012 has been filed by A-6 while Criminal Appeal No.867 of2012 has
been filed by A-1 toA-5.
4. We have carefully perused the impugned judgment and the F
material on record and have also meticulously examined the testimonies
of the witnesses and other relevant evidence produced. Since the
appellate jurisdiction against any judgment passed by the Designated
Court for TADA cases lies with this Court only, we would consider the
peculiar circumstances of the present case to appropriately discuss every
relevant issue in question before us. \ · G
5. The very first issue which falls for our determination as pressed
by the learned senior counsel for the accused-appellants herein is whether
the approval in the present case can be said to be sufficient compliance
of the provisions of Section 20-A of TADA which reads as under:-
H
320 SUJ,>REME COURT REPORTS [2017) 3 S.C.R.
A "20-A Cognizance of offence.- (1) Notwithstanding anything
contained in the Code, no information about the commission
of an offence under this Act shall be recorded by the police
without the prior approval of the District Superintendent of
Police.
B (2) No court shall take cognizance of any offence under this
Act without the previous sanction of the inspector-General
of Police, or as the case may be, the Commissioner of Police."
6. We have considered the fact that after the investigation, PW-
30 DSP of CBI approached PW-28 IG on 13'11 September, 1997 seeking
c sanction for prosecution against A-1 to A-5 for offences under TADA
Act. PW-28 on 16'" September, 1997 granted the sanction (Ext.P-46)
for prosecution against A-1 to A-5 under TADA Act. It is stated by PW-
28, IG that he perused all the records placed by PW-30, along with
requisition, seeking for sanction containing the Inquest Report, Post-
mortem Report, 164 Statements of eye-witnesses and 161 Statements
D of other witnesses, confession of A-1 and other materials and granted
sanction for prosecution againstA-1 to A-5 under Section 3 of the TA.DA
Act, 1987. It is also to be noted that in the course of investigatior:, the
confession of A-6 (Ext.P-43) dated 25.10.1994 was recorded by PW-26
SP, on the basis of the requisition given by PW-24 DSP, CBCID. The
E case was subsequently transferred to CBI in July, 1996 and on transfer,
PW-30 CBI, DSP took up the investigation on 17.07.1996.
7. We have also noted that the sanction (Ext.P-46) granted on
16.09 .1997 by PW-28 IG, referred to A-1 's confession (Ext.P-41) only
recorded on 3.04.1997 but it does not refer to the confession of A-6
F (Ext.P-43) which was recorded on 25.10.1994. This was the only
document which revealed that A-6 addressed and advisedA-1 to A-5 to
commit the murder ofRajagopalan, with intention to create terror in the.
minds of public at large in Tamil Nadu. Therefore, the confession of A-
6 (Ext.P-43) is the only document which refers to the intention to create
.terror as required under Section 3 of TADA Act. No other material or
G no other witness speaks about the intention of the accused to commit
the murder with intention to create terror in the minds of public which is
main ingredient for invoking the TADA Act. Unfortunately, the said
document (Ext.P-41) has neither been referred to nor relied upon by the
Sanctioning Authority in the sanction order (Ext.P-46).
H
SEENI NAINAR MOHAMMED v. STATE REP. BY DSP 321
[PINAKI CHANDRA GHO~fE;-J.]
8. We have also noticed that the confession of A-1 (Ext.P-41) is A
totally contradictory to the confession of A-6 (Ext.P43 ). It appears from
the facts that the Investigating Officer suppressed the material document
by not placing the same before the Sanctioning Authority. We have further
noticed that the TADA Court convicted the accused under the TADA
Act on the basis of confession of A-6 and not on the basis of any other B
material. The other point which we have noted is that the Sanctioning
Authority (PW-28) admitted in his deposition that he did not know Tamil
and did not go through the entire records which were in Tamil. Therefore,
it is clear that the Sanctioning Authority has not applied his mind to the
records in its entirety and granted sanction only after considering certain
documents which were in English. Therefore, we have to accept the C
contention of the appellants that the Sanctioning Authority withoutpernsing
the relevant documents issued the order of sanction and thereby it has to
be accepted that the sanction was granted mechanically.
9. The confessions of A-1 and A-6 are not voluntary as has been
evidenced by us from the materials since those confessions were not D
recorded in a free atmosphere thereby it violated the directions given by
this Court. Further, the said confessions could not be relied upon as they
contradicted with each other.
l 0. We, without hesitation, are of this considered opinion that the
answer to this question is in the negative for settled principle of non- E
application of mind by sanctioning authority while granting approval for
taking cognizance under TADA Act and undermining the objective of
the Act. This relevant provision was inserted by Act 43 of 1993 which
came into force on 23.05.1993 which is prior to the date of commission
of the offence i.e., I 0.10.1994 disputed in instant appeal which makes it
crystal clear that Section 20-A(l) of TADA must be constrned by F
indicating that prior approval from the competent authority is mandatory
for taking cognizance of, offence punishable under TADA. However, it
shall always be borne in mind by the sanctioning autho1ity that application
of such provisions which forms part of penal statues requires strict
interpretation and failure to comply with the mandatory requirement of G
sanction before cognizance is taken, as mentioned in TADA, may vitiate
the entire proceedings in the case. In the recent past, it has been observed
by this Court in respect of Section 20-A of TADA in the case of Hussein
Ghadia/ly@M.H.G.AShaikli & Ors. Vs. State of Gujarat, (2014) 8
sec 425, at para 21, as follows:
H
322 SUPREME COURT REPORTS [2017] 3 S.C.R.
A "A careful reading of the above leaves no manner of doubt
that the provision starts with a non obstante clause and is
couched in negative phraseology. ft forbids recording of
information about the commission of offences under TADA
by the Police without the prior approval of the District
Superintendent of Police. "
B
11. The most important factor for determination before the
sanctioning authority was that the acts done by a person must fall within
the ambit of terrorist activity and the accused must be a terrorist as
defined in Section 3(1 ). This position oflaw was discussed by this Court
C in the case of Kafp11at/1 Rai Vs. State (Through CBI), (1997) 8 SCC
732, as follows:
"34. Sub-section 3(5) was inserted in TADA by Act 43 of 1993
which came into force on 23-5-1993. Under Article 20(1) of
the Constitution 'no person shall be convicted of any offence
except for violation of a law in force at the time of the
D commission of the act charged as an offence'. So it is not
enough that one was member of a terrorists' gang before 23-
5-1993.
35. There are two postulates in Sub-section (5). First is that
the accused should have been a member of 'a terrorists gang'
E or 'terrorists organisation' after 23.5.1993. Second is that
the said gang or organisation should have involved in terrorist
acts subsequent to 23.5.1993. Unless both postulates exist
together Section 3(5) cannot be used against any person.
36. 'Terrorist act' is defined in. Section 2(h) as having the
F meaning assigned to it in Section 3(1). That sub-section reads
thus:
'3(1) Whoever with intent to overawe the Government as by
law established or to' strike terror in people or any section of
the people or to alienate any section of the people or to
G adversely affect the harmony amongst different sections of
the people does any act or thing by using bombs, dynamite or
other explosive substances or. inflammable substances or fire-
arms or other lethal weapons or poisons or noxious gases or
other chemicals or. by any other s1ibstances (whether
biological or otherwise) of a hazardous nature in such a
H
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 323
[PINAKI CHANDRA GHOSE, J.]
manner as to cause, or as is likely to cause, death of. or A
injuries to, any person or persons or loss of. or damage to,
or destruction of. property or disruption of any supplies or
services essential to the life of the community, or detains any
person cmd threatens to kill or injure such person in order to
compel the Government or any other person to do or abstain B
from doing any act, commits a terrorist act. '
37. The requirement.f of the sub-section are: (1) the person
should have done an act in such a manner as to cause, or as
is likely to cause death or injuries to any person or damage
to any property, or disruption of any supplies; (2) doing of C
such act should have been by using bombs, dynamites etc.;
(3) or alternatively he should have detained any person and
threatened to kill or injure him in order to compel the
Government or any other person to do or abstain from doing
anything. "
12. Mr. Karpaga Vinayagam, learned senior counsel appearing D
for the appellants submitted that the Prior Approval for investigating the
case under TADA, granted by PW-26 in the present case, is bad in law
as the same has been granted by PW-26 mechanically, without going
through the records and without recording his satisfaction. A careful
perusal of the requisition given by PW-24 to PW-26 for seeking prior E
approval (Ext.P-35) reveals that a single murder on 10.10.1994 was
mentioned therein but no act of murder with intent to create terror and
panic in the minds of public, which is the main ingredient of the offence
under TADA Act, was mentioned. The incident prior to this murder
·relating to objections raised by Hindus on the construction of mosque
near Hindu temple in Madurai was mentioned in the deposition of PW- F
24, which could nowhere be referred or connected to act of murder.
Admittedly, as per his deposition, till 19. I0.1994, none gave any complaint
that there was any commotion or violence at the place of occurrence,
re&ultantly connecting the case under IPC to be a prima facie case under
TADA leadiug'to seeking prior approval, which if granted, would be bad G
in the eyes of law.
13. We have also noticed that the Sanctioning Authority under
Section 20-A(2) of TADA, i.e. PW28 - IG, CBI in present case, had
granted permission to file a case under TADA on 16.09.1997 vide
permission order being Ext.P.46 and in his deposition PW-28 stated that H
324 SUPREME COURT REPORTS [2017] 3 S.C.R.
A " ... I verified the TADA Rules very carefully. Upon perusing the
said documents as I was satisfied that there are ample evidences to
file a case against Al to A5, namely Shahul Hameed, Raja Hussain,
Subair, Zahir Hussain and Aziz alias Abdul Aziz under the TADA
Act, I issued orders granting permission to file a case under section
3 ofthe TADA Act ... ". We may straightaway observe that the sanctioning
B
authority did not have necessary material before him to show that the
alleged act of causing death of the deceased was done with intent to
create terror in the minds of public at large. Had there been any such
terror in the minds of people, then as an aftermath of the death of the
deceased there would have been an adverse effect on the harmony
c amongst different sections of people in the vicinity of the place ofincident.
However, no such incident of striking terror in the minds of people or
adverse effect on the harmony amongst any section of society was
reported. The alleged act of causing death of an individual was only an
attack by the accused-appellants with weapons on the deceased who
D later succumbed to the injuries.
14. We have noticed that sanction under Section 20-A(2) of TADA
in respect of A-6 was granted by PW-29 on 16.09.1998, which was
delayed due to time consumed in the investigation against him. In our
considered opinion, the same is also unlawful for the reasons mentioned
above. Furthermore, cross examination of PW-30 is also reflecting the
E non-application of mind when after specifically stating about relationship
of the accused-appellants herein with Alumma organization, it was
deposed by him that he did not collect any evidence or document to
show that accused belonged to that organization. In our considered
opinion, the said sanctions, which have not been proved by the depositions
F of these witnesses, are not as per the mandate of law laid down by this
Court in the case of State ofMaharashtra Vs. Mahesh G Jain, (2013)
8 SCC 119, and Kootlra Per111nal Vs. State, (2011) 1 SCC 491.
15. After going through the records, it appears to us that the
accused-appellants had grndge in their minds because the deceased used
G to organize Vinayaga Chaturthi Celebrations in various places and criticize
Muslims and Islam which includes a public notice by the deceased
wherein he had demanded protection of Madurai City which, according
to the deceased, was being used by Pakistan as the base for spying
activity. The issuance of this public notice was proved by PW-11, A.R.
Kalidasan. Instances of pelting stones by the appellants herein were
H
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 325
[PINAKI CHANDRA GHOSE, J.]
proved by the evidence of PW-10, as cotToborated by the deposition of A
PW-13.
16. Mr. P. K. Dey, learned counsel for respondent-CBI has drawn
our attention to the decision of this Court in Kartar Singh Vs State of
Punjab, 1994 (3) SCC 569, wherein at para 451, this Court observed:
"Mere possession of arms and ammunition specified in the B
section has been made substantive offence. It is much serious
in nature and graver in impact as it results in prosecution of
a man irrespective of his association or connection with a
terrorist or terrorist activity. A comparison of this section with
Sections 3 and 4 demonstrates the arbitrariness inherent in c
it. Section 3 operates when a person not only intends to
overawe the Government or create terror in people etc. but
he uses the arms and ammunitions which results in death or is
likely to cause death and damage to property etc. In other
words, a person becomes a terrorist or is guilty of terrorist
activity when intention, action and consequence all the three D
ingredients are found to exist. Similarly Section 4 applies to
those activities which are directed towards disrupting
sovereignty and territorial integrity of the country. Thus a
terrorist or a disruptionist and a person possessing any of
the arms and ammunition mentioned in the section have been E
placed on a par. In Sections 3 and 4 the offence arises on the
act having been done whereas in Section 5 it is founded only
on possession. Even under sub-sei.:tion (3) of Section 3 a
person is liable to be prosecuted for abetting the offence if
he assists or communicates with a terrorist. Sub-sections (5)
and (6) inserted by Act 43 of 1993 to Section 3 also require F
that a person can be prosecuted only if he is found to be a
member of a terrorist gang or terrorist organisation etc. The
Act, therefore, visualises prosecution of the terrorist or
disruptionist for offences under Sections 3 and 4 and of others
only if they are associated or related with it. That is in keeping G
with the objective of the Act. The legislation has been upheld
as the legislature is competent to enact in respect of a crime
which is not otherwise covered by any Entry in List II of the
Seventh Schedule. The definition of the crime, as has been
discussed earlier, is contained in Sections 3 and 4 of the Act
H
326 SUPREME COURT REPORTS . [2017] 3 S.C.R.
A and it is true that while defining the crime it is open to the
legislature to make provision which may serve the objective
of the legislation and from a wider point of view one may say
that possession of such arms, the use of which may lead to
terrorist activity, should be taken as one of the offences as a
preventive or deterrent provision. Yet there must be some inter-
B
relation between the two, howsoever, remote it may be. The
harshness of the provisions is apparent as all those provisions
of the Act for prosecuting a person including forfeiture of
property, denial of bail etc., are applicable to a person
accused of possessing any arms and ammunition as one wlio
c is charged for an offence under Sections 3 and 4 of the Act.
It is no doubt true that no one has justification to have such
arms and ammunitions as are mentioned in Section 5, but
unjustifiable possession does not make a person a terrorist
or disruptionist. Even under Ireland Emergency Provisions
Act, 1978 on which great reliance was placed by learned
D
Additional Solicitor General thete is no such harsh provision
like Section 5. Since both the substantive and procedural law
apply to a terrorist and disruptionist or a terrorist act or a
disniptive act, it is necessary, in my opinion, that this section
if it has to be immune from attack of arbitrariness, may be
E invoked only if there is som~ material to show that the person
who was possessed of the arms intended it to be used for
terrorist or disruptionist activity or it was an arm and
ammunition which in fact was used."
(emphasis supplied)
F 17. He further relied upon judgment of this Court in the case of
Girdl1ari Parmanand Vadhava Vs. State of Maharashtra, (1996) 11
sec 179, wherein it was enunciated that a crime even if perpetrated
with extreme brutality may not constitute "terrorist activity" within the
meaning of Section 3( 1) of TADA. For constituting "terrorist activity'',
G the activity must be intended to strike terror in people or a section of the
people or bring about other consequences referred to in Section 3(1).
Terrorist activity is not confined to unlawful activity or crime committed
against an individual or individuals but it aims at bringing about terror in
the minds of people or section of people disturbing public order, public
peace and tranquillity, social and communal harmony, disturbing or
H
SEENI NAINAR MOHAMMED v. STATE REP. BY DSP 327
[PINAKI CHANDRA GHOSE, J.]
destabilising public administration and threatening security and integr1ty A
of the country.
18. Therefore, it will be very dangerous for us, in the absence of
legislative attempt, to provide with an opinion to define whether any
activity falls within the definition of terrorist activity or not. After all the
legislative intent behind enactment of any statute shall prevail. This Court B
had opined in the words of Justice Dr. A. S. Anand in Hitendra Vishnu
Thakur & Ors. Vs. State Of Maharashtra & Ors., (1994) 4 SCC 602,
that
"7. 'Terrorism' is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime constitute c
a threat to an established order and are a revolt against a
civilised society. 'Terrorism' has not been defined under TADA
nor is it possible to give a precise definition of 'terrorism' or
lay down what constitutes 'terrorism'. It may be possible to
describe it as use of violence when its most important result is
not merely the physical and mental damage of the victim but D
the prolonged psychological effect it produces or has the
potential of producing on the society as a whole. There may
be death, injury, or destruction of property or even
deprivation of individual liberty in the process but the extent
and reach of the intended terrorist activity travels beyond the E
effect of an ordinary crime capable of being punished under
the ordinary penal law of the land and its main objective is to
overawe the Government or disturb harmony of the society
or "terrorise" people and the society and not only those
directly assaulted, with a view to disturb even tempo, peace
and tranquillity of the society and create a sense of fear and F
insecurity. A 'terrorist' activity does not merely arise by causing
. disturbance of law and order or of public order. The fall out
of the intended activity must be such that it travels beyond
the capacity of the ordinary law enforcement agencies to
tackle it under the ordinary penal law. Experience has shown G
us that 'terrorism' is generally an attempt to acquire or
maintain power or control by intimidation and causingfear
and helplessness in the minds of the people at large or any
section thereof and is a totally abnormal phenomenon. What
distinguishes 'terrorism' from other forms of violence,
H
328 SUPREME COURT REPORTS [2017] 3 S.C.R.
A therefore, appears to be the deliberate and systematic use of
coercive intimidation. More often than not, a hardened criminal
today takes advantage of the situation and by wearing the
cloak of 'terrorism', aims to achieve for himse(f acceptability
and respectability in the society because unfortunately in the
States affected by militancy, a 'terrorist' is projected as a hero
B
by his group and often even by the misguided youth. It is
therefore, essential to treat such a criminal and deal with him
differently than an ordinary criminal capable of being tried
by the ordinmy courts under the penal law of the land. Even
though the crime committed by a 'terrorist' and an ordinary
c criminal would be overlapping to an extent but then it is not
the intention of the Legislature that every criminal should be
tried under TADA, where the fall out of his activity does not
extend beyond the normal frontiers of the ordinary criminal
activity. Every 'terrorist' may be a criminal but every criminal
cannot be given the label of a 'terrorist' only to set in motion
D the more stringent provisions of TADA. The criminal activity
in order to invoke TADA must be committed with the requisite
intention as contemplated by Section 3(1) of the Act by use
of such weapons as have been enumerated in Section 3(1) and
which cause or are likely to result in the offences as mentioned
E in the said section. "
19. We would, therefore, make it abundantly clear that these relied
cases do not help the respondent to make a case under the provisions of
TADA in the absence of intention to cause terror in the. minds of people
or strike on them with terror. Therefore, in our considered opinion, the
F approvals granted by the Superintendent of Police (PW-26) and the IG,
CBI (PW-28), in the facts and circumstances of the present case, were
completely invalid lacking compliance of the requirements prescribed
under Section 20-A of TADA. Albeit, it can rightly be opined that prior
approvals were bad in law in the present case, nevertheless, it cannot be
said that the entire proceedings against the accused-appellants under
G TADA, were vitiated in the light of the judgment in the case of
Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State of
Guajrat, (2012) 11 SCC 606, wherein this Court observed:
"33. Now we proceed to consider the submission advanced
by the State that non-compliance with Section 20-A(J) i.e.
H
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 329
[PINAKI CHANDRA GHOSE, J.]
absence of approval of the District Superintendent of Police, A
is a curable defect under Section 465 of the Code. We do not
have the slightest hesitation in holding that Section 465 of
the Code shall be attracted in the trial of an offence by the
Designated Court under TADA. This would be evident
ji·om Section 14 (3) of TADA which reads as follows:
B
'14.Procedure and powers of Designated Courts.-
(1)-(2) ...
(3) Subject to the other provisions of this Act, a Designated
Court shall, for the purpose of trial of any offence, have all
the powers of a Court of Session and shall try such offence C
as if it were a Court of Session so far as may be in accordance
with the procedure prescribed in the Code for the trial before
a Court of Session. '
34. From a plain reading of the aforesaid provision it is evident
that for the purpose of trial Designated Court is a Court of D
Session. It has all the powers of a Court of Session and while
trying the case under TADA, the Designated Court has to
follow the procedure prescribed in the Code for the trial
before a Court of Session. Section 465 of the Code, which
falls in Chapter 35, covers cases triable by a Court of Session E
also. · Hence, the prosecution can take shelter behind Section
465 of the Code. But Section 465 of the Code shall not be
a panacea for all error, omission or irregularity. Omission
to grant prior approval for registration of the case under
TADA by the Superintendent of Police is not the kind of
omission which is covered under Section 465 of the Code. It F ·
is a defect which goes to the root of the matter and it is not
one of the curable defects. " '
20. We are therefore of this considered opinion that as a result of
illegal sanction order the criminal proceedings for prosecution under the
TADA Act are vitiated entirely. Suffice it to say that Learned Court G
under the TADA Act has grossly erred in taking cognizance of the case.
21. Mr. M. Karpaga Vinayagam, learned senior counsel appearing
. for the appellants· advanced three main submissions, apart from
challenging the sanction granted by the competent authority which has
H
330 SUPREME COURT REPORTS [2017] 3 S.C.R.
A already been discussed in earlier paragraphs. He submitted that the eye-
witnesses and PW-7 are not reliable. He further submitted that A-1 's
confession is not voluntary and there has been non-examination of
material witnesses. Concluding with his arguments he would say that
the Identification Parade is a farce and that there are infirmities in the
depositions of the Investigating Officers being PW-2, PW-24 & PW-30.
B
22. We have reappreciated the evidence on record and considered
the arguments advanced by Mr. P.K. Dey, learned counsel appearing
for the respondent-CBI. Though we find little difficulty in accepting the
view taken by the learned Designated Court in its entirety, as it arises
from several notable facts, it is not and cannot be disputed that the
c deceased was killed at the entrance of his house. The post-mortem report
being Ext.P-14, which was duly proved by PW15 -Dr. Thiagarajan, also
mentioned the cause of death being shock and haemorrhage due to
multiple cut and stab injures sustained by the deceased somewhere near
5 O'clock in the morning on 10.10.1994. We have noticed that PW-l
D was never called for identification of the accused-appellants.
23. Apropos question ofreliability of the test identification parade
in the present case, when admittedly accused were already seen through
newspaper, we emphasise on few judgments of this Court before coming
to the answer to this question. This Court in the case of S11resh Chandra
E Bahri Vs. State ofBihar, 1995 Supp (I )SCC 80, has held:
"78 .... From this point of view it is a matter ofgreat importance
both for the investigating agency and for the accused and a
fortiori for the proper administration of justice that such
identification is held without avoidable and unreasonable
F delay after the arrest of the accused and that all the necessary
precautions and safeguards were effectively taken so that the
investigation proceeds on correct lines for punishing the real
culprit. It would, in addition, be fair to the witness concerned
also who was a stranger to the accused because in that event
the chances of his memory fading away are reduced and he
G is required to identify the alleged culprit at the earliest possible
opportunity after the occurrence. It is in adopting this course
alone that justice and fair play can be assured both to the
accused as well as to the prosecution. But the position may
be different when the accused or a culprit who stands trial
H had been seen not once but for quite a number of times at
SEENI NAINAR MOHAMMED v. STATE REP. BY DSP 331
[PINAKI CHANDRA GHOSE, J.]
d(fferent point of time and places which fact may do dway A
with the necessity of TI parade."
24. We accept the contention of the learned senior counsel for
the appellants that the test identification parade was a farce as after the
pictures of the accused had been published in the newspaper, the
identification parade which is a very weak piece of evidence should not B
have been conducted.
25. Before concluding this judgment, it would be necessary to
consider the most important factor to which out attention was invited by
the learned counsel for the respondent, i.e., confession of accused and
unearthing of conspiracy and recovery of evidences thereafter. Having c
regard to observation recorded so far, emphasis on the judgment delivered
by this Court in State (NCT of Del/ii) J'.s. Navjot Sandhu, (2005) 11
sec 600, is necessary wherein it was observed:
"28. In the Privy Council decision of Pakala Narayana Swami
vs. Emperor, AIR 1939 PC 47, Lord Atkin elucidated the D
meaning and putport of the expression 'confession' in the
following words:
"[A] confession must either admit in terms the offence, or at
any rate substantially all the facts which constitute the offence.
An admission of a gravely incriminating fact, even a E
conclusively incriminating fact is not of itself a confession ... "
29. Confessions are considered highly reliable because no
rational person would make admission against his interest
unless prompted by his conscience to tell the truth. "Deliberate
and voluntmy confessions of guilt, if clearly proved are among
F
the most effectual proofs in law". (vide Taylor's Treatise on
the Law of Evidence Vol. I). Howeve1; before acting upon a
confession the court must be satisfied that it was freely and
voluntarily made. A confession by hope or promise of
advantage, reward or immunity or by force or by fear induced
by violence or threats of violence cannot constitute evidence G
against the maker of confession. The confession should have
been made with full knowledge of the nature and
consequences of the confession. If any reasonable doubt is
entertained by the court that these ingredients are not satisfied,
the court should eschew the confession from consideration.
H
332 SUPREME COURT REPORTS [2017] 3 S.C.R.
A So also the authority recording the confession, be it a
Magistrate or some other statutory functionary at the pre-
trial stage, must address himself to the issue whether the
accused has come forward to make the confession in an
atmosphere free from fear, duress or hope of some advantage
or reward induced by the persons in authority. Recognizing
B
the stark reality of the accused being enveloped in a state of
fear and panic, anxiety and despair 1vhile in police custody,
the Evidence Act has excluded the admissibility of a
confession made to the police officer.."
In a subsequent para of this relied judgment this Court fm1her
c obseived:
"32. As to what should be the legal approach of the Court
called upon to convict a person primarily in the light of the
confession or a retracted confession has been succinctly
summarized in Bharat vs. State of U.P [1971 (3) SCC 950].
D Hidayatullah, C.J., speaking for a three-Judge Bench
observed thus:
Confessions can be acted upon if the court is satisfied that
they are voluntary and that they are true. The voluntary nature
of the confession depends upon whether there was any threat,
E inducement or promise and its truth is judged in the context
of the entire prosecution case. The confession must jlt into
the proved facts and not run counter to them. When the
voluntary character of the confession and its truth are
accepted, it is safe to rely on it. indeed a confession, if it is
F voluntary and true and not made under any inducement or
threat or promise, is the most patent piece of evidence against
the maker. Retracted confession, however, stands on a slightly
different footing. As the Privy Council once stated, in India it
is the rule to find a confession and to find it retracted later. A
court may take into account the retracted confession, but it
G 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
H weigh with the court if the general facts proved in the case
SEEN! NAINAR MOHAMMED v. STATE REP. BY DSP 333
[PINAKI CHANDRA GHOSE, J.]
and the tenor of the confession as made and the circumstances A
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 B
corroborate it, but a retracted confession requires the general
assurance that the retraction was an after-thought and that
the earlier statement was true. This was laid down by this
Court in an earlier case reported in Subramania Gounden v.
The State of Madras(f 958 SCR 428)."
26. We are of this considered opinion that the confessions of A-1
c
and A-6 are involuntary as they were taken in the immediate custody of
high security of CBI and a non-voluntary confession cannot form the
basis of conviction. We would like to emphasize on another observation
made by this Court in Asltrajkhan's case (supra):
"41. We have held the conviction of the accused to have been D
vitiated on account of non-compliance with Section 20-A(I)
of TADA and tints, it may be permissible in law to maintain
the conviction under the Arms Act and the Explosive
Substances Act but that shall only be possible when there
are legally admissible evidence to establish those charges. E
The Designated Court has only relied on the confessions
recorded under TADA to convict the accused for offences
under the Arms Act and the Explosive Substances Act. In
view of our finding that their conviction is vitiated on account
of non-compliance of the mandatory requirement of prior
approval under Section 20-A(l) of TADA, the confessions F
recorded cannot be looked into to establish the guilt under
the aforesaid Acts. Hence, the conviction of the acrnsed under
Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and
6 of the Explosive Substances Act cannot also be allowed to
stand." G
27. We would also like to recapitulate observation of this Court in
Ashrajkhan's case (supra) which reads as follows:
"44. The facts of the case might induce mournful reflection
how an attempt by the investigating agency charged with the
H
334 SUPREME COURT REPORTS [2017] 3 S.C.R.
A duty ofpreventing terrorism and securing conviction has been
frustrated by what is popularly called a technical errm'. We
emphasize and deem it necessary to repeat that the gravity of
the evil to the community from terrorism can never furnish an
adequate reason for invading the personal liberty, except in
accordance with the procedure established by the Constitution
B
and the laws. "
28. In the light of the judgments cited above and the material on
record, we have no hesitation in holding that whole proceedings in the
present case were vitiated. Therefore, the order of conviction and
sentence passed by the Designated Court is hereby quashed and set-
C aside. The appellants herein be released forthwith, if not required in any
other case.
29. In the result, the appeals filed by the accused-appellants are,
accordingly, allowed.
D
Nidhi Jain Appeals allowed.
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