STATE OF MAHARASHTRA versus SIRAZ AHMED NISAR AHMED AND ORS.

32. The other witness examined by the prosecution is another Police Inspector-Vinayak Pandurang Kadam (PW-55) attached to DCB CID. He fully supported the statement of PW-50 regarding the disclosure statement made ……. by Rizwan and the police party proceeding towards block no. 402, Gimar Building on the information supplied by the accused Rizwan, the seizure of E the revolver and the cartridges, preparation of the panchanama and also the fact that accused Gumamsingh had introduced the lady who was present in the flat to be his wife. In the cross-examination, however, this witness stated that after the accused Gumamsingh had produced the revolver and the live cartridges no search was made of block no. 402 by the police party. The statement of these witnesses about the recovery of .38 revolver and the live F cartridges was not connected with the accused by the Designated Court on the ground that the exclusive possession by the accused of block no. 402 was not proved by the prosecution.

It was held by the Designated Court that prosecution had not proved that th<" lady found in block no. 402 was the wife of the accused Gumamsingh and, therefore, it could not be said that the accused Gumamsingh was in exclusive possession of block no. 402 at the relevant time when the seizure of the firearm and the live cartridges was effected by the police party. The Designated Court has completely overlooked the fact that both the witnesses (PW-50 and PW-55) have specifically stated that when the door of block no. 402 was opened and they entered the flat a lady was standing there along with the accused Gumamsingh and the H accused Gumamsingh introduced that lady as his wife. However, there was _J STATE OF MAHARASHTRA v. SIRAZ AHMED NI SAR AHMED [P.P. NAOLEKAR, J] 57 no cross-examination of these witnesses on this point. That apart, it w~s A within the exclusive knowledge of the accused Gumamsingh of his relationship with the lady found in the flat when the seizure was made and it would have been for the accused to put the question in cross-examination of the witnesses to bring out the fact that the lady had no relationship with the accused Gumamsingh. Other factor which was taken into consideration by the Designated Court is that why the police officials would make a search of the B flat when the accused Gumamsingh himself had produced the revolver and the live cartridges, by overlooking the fact that the investigation was in progress with respect to a day-light murder, committed, of a political leader, a sensational case and, as such, the police party would not have felt complacent only on production of one firearm by the accused Gumamsingh. C It was quite natural that they had been suspecting that block no. 402 might have other arms and considering that factor they had made the seare;h of tht: flat. There is misreading of the evidence by the Designated Court that the search was effected prior to the completion of process of seizure of the revolver. PW-50 had categorically stated in his evidence that after the seizure of the revolver and the live cartridges he had started writing panchanama and D prior to the completion of panchanama they also searched the house of the accused Gumamsingh, ~ut they could not find any other incriminating articles. It is natural for the police party to search for other arms while investigating a serious crime so that :f any other arms are found those can also be included in the document prepa:ed by them.

33. The Designafed Court has rejected the evidence of both the witnesses on consideration of other aspect that PW- 55 had stated that no search of the flat was made by the police party. While appreciating the evidence, the court must keep in mind that the powers of observation differ from person to person. What one may notice, other may not. An object or thing happened F might reflect in the image of a person's mind, whereas it may go unnoticed on the part of another. It has not come out in the evidence or in the cross- examination that PW-55 was also a party to the search of the flat along with PW-50 after the arms were produced by the accused who had made a categorical statement that he had made a search of block no. 402 before the completion of the panchnama. While appreciating the evidence of a witness, the approach G must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor H [2007) 6 S.C.R. A of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hyper-technical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole.

34. On an overall reading of the statements made by PW-50 and PW- 55, we do not find that the evidence of recovery of .38 revolver and the live cartridges from the accused Gumamsingh was in any way shaken by some c of the infirmities pointed out by the Designated Court. In fact, in our opinion, those discrepancies in the statements of PW-50 and PW-55 were not infirmities, but those statements are consistent with the general tenor of evidence.

35. When the accused Rizwan was arrested and made disclosure statement that he would point out the house of accused Gumamsingh to D whom he had handed over a revolver, it is natural for the police party to take accused Rizwan for seizure of the arms which, according to them, has a connection with the crime committed. When the prosecution has proved conscious and exclusive possession of block no. 402 by the accused Gumamsingh, the statements of the witnesses cannot be brushed aside on the ground that the prosecution has not proved the title or ownership of the flat.

36. It is not necessary at all for the prosecution to prove the ownership of block no. 402, Gimar Building from where the firearm and the live cartridges were recovered. It is sufficient for the prosecution to prove that the accused Gumamsingh and his close relations were occupants of block no. 402 so as to exclude the possibility of other persons concealing and keeping firearms in the premises of the flat. According to us, the prosecution has proved the seizure of the revolver and the live cartridges from the accused Gumamsingh.

37. Under Section 5 of the TADA Act, any person found in possession G of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962 in the notified area, then notwithstanding anything contained in any other law, would be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. As per ,.._ the Arms Rules, 1962, Schedule I Category IIl(a), "revolver and pistols" are prohibited arms in the notified area. It is not in dispute that Mumbai is a STATE OF MAHARASHTRA v. SI RAZ AHMED NISAR AHMED [P. P NAOLEKAR, l. J 59 notified area. The accused Gurnamsingh having been found in possession of A .38 revolver, is guilty of offence under Section 5 of the TADA Act.

38. As regards respondent no.4-Shafiq Latif Sheikh, we do not find any substantive evidence to connect this accused with the commission of crime.

39. Now, we shall take up the case of respondent no.7- Mohd. Mushraf B Hussain Shaikh who was acquitted by the Designated Court.

40. It is the prosecution case against accused Mushrafthat when all the accused entered into conspiracy to kill Ramdas Nayak, they felt need to collect anns, ammunitions and vehicles to transport the requisite anns and ammunitions from Bharauch to Mumbai and thereafter to use the vehicle for c transportation to the residence of Ramdas Nayak. Accused Mushraf was conducting a motor garage and, therefore, accused Feroz Konkani and Rizwan Mohd. approached Mushraf for making arrangement of car. They infonned him their plan of killing Ramdas Nayak and requested him to find out some vehicle to be purchased. On he being approached, Mushraf started search for D a suitable vehicle and he found that the owner of Super Motors had a car for sale and accordingly purchased Fiat car No. MMU8373 from the employee of Super Motors. The said car was used for transportation of weapons from Bharauch to Mumbai and later on for the purposes of transport of the accused assailants to the place of Ramdas Nayak.

The police had seized the same car from the place of incident. The Investigating Officer traced the E owner of the car PW-I I Vijay Shah. In his statement before the Court, he has admitted that he had sold the car to one Abbasbhai Saluji for the consideration of Rs. 32,000/-. Abbasbhai Saluji was examined as PW-12 who identified witness no. 11, the owner and transferor of the Fiat car. He further stated that he sold the same car to one Abdul Salija. Abdul Salija was also examined as F PW-13 who had accepted that he had purchased the Fiat car from Abbasbhai Saluji. Thereafter he wanted to sell it; therefore, he approached the vehicle dealer Hanifbhai and Hanifbhai sold the car to a person from Kerala and paid to him Rs. 50,000/-. When Hanifbhai was examined by the prosecution as PW- 6, he deposed that he was carrying on business in the name and style of 'Super Motors' at 107, Morland Road, near BEST Depot, Mumbai Central, G Mumbai.

He used to purchase old vehicles and sell the same. He further deposed that in the month of April, 1994, one Abbasbhai had brought a Fiat car and requested him to sell it. On 10.5.1994, he went to pilgrimage at Makka _J and returned to Mumbai on 19.6. 1994. On his return, he came to know from his employee that the car of Abbasbhai had already been sold but he could not tell the police the name of the purchaser. We are unable to find any H A effective help from the previous owners of the Fiat Car to link the accused persons with it. Prosecution was finally able to bring the employee of the shop from where the Fiat car, alleged to be used by the accused persons, was bought. However, no link could be established with the accused persons which is clear as per the observations of the Designated Court that the prosecution brought the employee in the witness box, but the employee was B so afraid that he started shivering and before any question was asked to him with regard to his name etc. the said employee collapsed in the witness box. On 24.3.1998 when the matter was listed for evidence, prosecution could not bring the witness in the witness-box.

41. In spite of the best efforts made by the prosecution, the prosecution has failed to prove that the Fiat Car which was found standing at the place of incident was purchased by accused Mushraf to link him with the other accused persons and with the conspiracy which is alleged to have been hatched by the accused.

42. Another piece of evidence was brought on record by the prosecution to link Mushraf with the commission of the crime is that he was arrested from a hotel at Hyderabad, and to prove this fact the prosecution has examined PW-48 Deepak Deshpandey, the owner of Vaibhav Lodge, Hyderabad, who claimed that the accused Mushraf was residing in his lodge since 21.3.1995 and that he was arrested from this lodge by the police. The evidence of PW- E 48 shows that the accused Mushraf was residing in his lodge from 21.3.1995 to 28.4.1995. The incident took place at Mumbai on 25.8.1994 but the prosecution has not produced any evidence to indicate that during August, 1994 to March, 1995 the accused Mushraf was not present at Mumbai. The absence of the accused from the place immediately after the incident could not be p established by the prosecution to draw any inference that the accused was absconding as he was connected with the commission of the crime.

43. It is urged by the learned counsel for the appellate-State that the accused Mushraf has made a confession before a police officer authorized to record the confession under Section 15 of the TADA Act, wherein the accused G has admitted his guilt and his active participation in the commission of crime, which is a substantive piece of evidence; and that the Designated Court has committed an error in rejecting the confessional statement of the accused Mushraf.

44. Under Section 15 of the TADA Act, notwithstanding anything H contained in the Indian Evidence Act, a confession made by an accused STATE OF MAHARASHTRA v. SIRAZAHMEDNISARAHMED [P.P. NAOLEKAR,J.] 61 before a police officer not lower in rank than a Superintendent of Police which A is recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person. By Act No. 43 of 1993, such confessional statement was made admissible against the co-accused, abettor or conspirator for an offence committed under the TADA provisions or Rules made thereunder, provided that the co-accused, abettor or conspirator B is charged and tried in the same case together with the accused. Sub-section (2) of Section 15 casts an obligation on the part of the police officer to explain to the person making the confession that he is not bound to make a confession and further to give a statutory warning that if he does so it may be used as evidence against him.

Rule 15 of the Terrorist and Disruptive Activities C (Prevention) Rules, 1987 (for short "the TADA Rules") lays down the mode of recording the confession and Rule 15(3)(b) requires the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he is not bound to make the confession and that the confession, if made by him, may be used against him; and that he has recorded the confession only on being satisfied that it was voluntarily made. D :Rule 15(5) requires that every confession recorded under Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area and the Magistrate shall forthwith forward the recorded confession received by him to the Designated Court taking cognizance of the offence.

45. A Constitution Bench of this Court vide judgment delivered on I Ith March, 1994 in the matter of Kartar Singh v. State of Punjab, reported in (1994] 3 SCC 569, while upholding the constitutional validity of the TADA Act, 1987, has laid down certain guidelines so as to ensure that the confession obtained by the police officer not lower than the rank of Superintendent of F Police is not tainted with any vice, but is in strict conformity with the well- recognised principles and fundamental fairness. The said guidelines are as under: (I) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated G by him; (2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with H c the original statement of confession, written or recorded on mechanical device without unreasonable delay; (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon; (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act, more so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorise only a police officer of a specified rank to investigate the offences under those specified Acts. (5) The police officer if he is seeking the custody of any person for \ pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody; (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure.

46. On the other hand, it is urged by the counsel for the respondent- accused that although the confessional statement was recorded by the police G officer after the judgment of the Constitution Bench was delivered, yet the guidelines provided by the Court to safeguard and ensure the voluntary nature of the confessional statement made to the police officer were not complied with, apart from the fact that the evidence led by the prosecution does not indicate that the confession was made by the accused to the police H officer voluntarily; and, therefore, the Designated Court has not committed >- …. r STATE OF MAHARASHTRA v. SIRAZ AHMED NISARAHMED [P.P. NAOLEKAR, J.] 63 any error in rejecting the so-called confessional statement given by the A accused Mushraf.

47. The confessional statement of the accused Mushraf was recorded by PW-42 T.A. Chavan. The confession was recorded on two dates. The accused Mushraf was first produced before PW-42 on 5.5. 1995 and after asking certain preliminary questions and ascertaining the voluntary nature of B the statement he was going to make, he was sent back in the police custody and was produced again on 8.5. 1995 for recording his confessional statement from the police custody. PW-42, in his statement, stated that at the relevant time he was posted as Deputy Commissioner of Police, Zone-VI in Mumbai. His office was situated at Mulund Police Station. On 5.5.1995, he received a c letter from the Additional Commissioner of Police, Mumbai directing him that the accused Mushraf had disclosed his intention to give a confessional statement and he should, therefore, do the needful. On receipt of the communication, he contacted PI Kadam who was the Investigating Officer and directed him to produce the accused before him.

The accused was produced before him on 5.5.1995 at about 6.30 p.m. along with another accused D Mohd. Harun. He recorded the statement of Harun first and immediately thereafter he called the accused Mushraf in his chamber and after asking the preliminary questions for ascertaining the wish of the accused to make voluntary confession, he sent them back on 5.5.1995 to P.I. Crime of Mulund Police Station to be kept in custody. The accused was recalled on 8.5.1995 for the E purpose of recording his confession to PW-42's chamber and thereafter questions were asked to ascertain whether he was still willing to give the confession and on ascertaining that he was so willing his statement was recorded in a typed format by the typist. The contents of the confession were explained to the accused who accepted the same and his signature was obtained on the confessional statement. The confessional statement recorded F on 8.5.1995 is Exhibit no. 120.

However, we have noticed that in his cross- examination, PW-42 admitted that he neither cared to ascertain the date of the arrest of the accused nor confirmed as to where the accused had been kept in custody from the time of his arrest till he was produced for recording of his confessional statement. The witness also admitted that he had not read G the procedure given by the High Court for recording the confessional statement, which was a part of the criminal manual. In the cross-examination, when provisions of Rule 15(3)(b) of the TADA Rules were brought to his notice, _J he fairly admitted that the required certificate was not with the same words and language provided in the provisions. As per the officer, he had embodied the gist of the requirements provided under the Rule for certificate to be given H A by the officer recording the confessional statement. We have noticed that the certificate does not mention that he had told the accused that it was not binding on him to give the confessional statement.

The officer also admitted that he never asked the accused as to why he felt the necessity to give the confessional statement. Admittedly, the accused was also not produced before the Magistrate as laid down in the judgment of the f_;onstitution Bench.

48. On recording of confessional statement under Section 15 of the TADA Act, a 2-Judge Bench of this Court in Ayyub v. State of Uttar Pradesh, [2002] 3 sec 510 has held as under : >- . – "l 8. Section 15 of the TADA Act altered the fundamental rules of c evidence given in the Evidence Act, which stood the test of time for over a century. Under Section 25 of the Evidence Act, a confession made to a police officer by a person accused of an offence shall not be proved against him. The power to record judicial confession is given to the Magistrate and strict and rigorous guidelines have been laid down in Section 164 Cr.P.C. That apart, many High Courts also have framed rules giving detailed procedure for recording confession. Confession is an admission of guilt. Normally, nobody would like to admit his guilt as he is fully aware that the same would be used against him. That apart, there is constitutional right for the accused that he shall not be subjected to any 'testimonial compulsion'. Under Article 20(3) of the Constitution, the accused person has a protection from being compelled to be a witness against himself. As the confession made under Section 15 of the TADA Act is made admissible in evidence, the strict procedure laid down therein for recording confession is to be followed. Any confession made in defiance of these safeguards cannot be accepted by the court as reliable evidence. The confession should appear to have been made voluntarily and the police officer who records the confession should satisfy himself that the saro.e had been made voluntarily by the maker of that statement. The recorded confession must indicate that these safeguards have been fully complied with. " Further, in Simon and Ors. v. State of Karnataka, [2004] l SCC 74 this Court has held as under: "22. It is the duty of the recording officer to ensure that the confession is made voluntarily and out of free will by the accused without any pressure. Recording of confessional statement is not a STA TE OF MAHARASHTRA v. SIRAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.] 65 mechanical exercise. A duty has been cast and considerable amount A of confidence has been reposed in a senior officer under Section 15 of the TADA Act in giving him the duty to record the confession and making such a confession before a police officer admissible in evidence." In S.N.

Dube v. N. B. Bhoir and Others, [2000] 2 SCC 254, a 2-Judge Bench B observed as follows: "31.. .. Though giving of the statutory warning, ascertaining voluntariness of the confession and preparation of a contemporaneous record in the presence of the person making the confession are mandatory requirements of that rule, we see no good reason why the C form and the words of the certificate and memorandum should also be held mandatory. What the mandatory requirements ofa provision are cannot be decided by overlooking the object of that provision. They need not go beyond the purpose sought to be achieved. The purpose of the provision is to see that all formalities are performed by the D recording officer himself and by others to ensure full compliance with the procedure and seriousness of recording a confession. We fail to appreciate how any departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the court is able to conclude that the requirements have been substantially complied with. No public purpose is likely to be E achieved by holding that the certificate and memorandum should be in the same form and also in the same terms as are to be found in Rule 15 (3) (b). We fail to appreciate how the sanctity of the confession would get adversely affected merely because the certificate and the memorandum are not separately written but are mixed up or because F different words conveying the same thing as is required are used by the recording officer. " Also, in Hardeep Singh Sohal and Ors v. State of Punjab through C.B./, (2004] 1 I SCC 612, this Court has held as under: "17 … The certificate should have specifically stated that he had G explained to the person making the confession that he was not bound to make the confession and, if he does so, the confession he may make may be used against him and that he believed that this confession was voluntarily made and it was taken in his presence and recorded by him and was read over to the person making it and admitted by H him to be correct, and it contained a full and true account of the statement made by him."

49. From the aforementioned statements of law enunciated by this Court, it is apparent that considerable amount of confidence has been reposed on the senior police officials for recording the confessional statement. A B confession statement to police is not admissible under the general law connected with administration of criminal justice, which is made admissible under the TADA Act, and, therefore, the strict compliance of the procedure prescribed under Section 15 of the TADA Act read with Rule 15 of the TADA Rules is expected to be followed. Any confession made in defiance of the C safeguards provided therein, would not be relied upon by a court. The confession should be made voluntarily without there being any force or pressure put on, or allurement or inducement given to, a person who is voluntarily admitting his guilt. Under Section 25 of the Indian Evidence Act, a confession made to the police officer is not admissible in evidence to be considered by a court.

Although there are certain exceptions in the preceding D provisions, but the fact remains that as a rule a confession made to the police officer is not made admissible under the Evidence Act. The idea appears to be that any statement made to a police officer who is connected with the investigation and prosecution of a person, would not be taken as evidence. Under Section 15 of the TADA Act, if a confession made by the accused to a police officer not lower than the rank of Superintendent of Police is made E admissible, it would still be a confession made to the police officer, and thus inbuilt safeguards have been provided under Section 15 of the TADA Act read with Rule 15 of the TADA Rules so as to lend credence to the confession made to the police officer, it being voluntarily and without any force or pressure and allurement or inducement. The Constitution Bench of this Court in Kartar Singh (supra) has also laid down the condition to establish the voluntary nature of the confession.

50. Under sub-rule (3)(b) of Rule 15 of the Rules, the certificate which is required to be given by the police officer should be as under: "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. lt was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. STA TE OF MAHARASHTRA v. SI RAZ AHMED NISAR AHMED [P.P. NAOLEKAR, J.l 67 Sd/- Police Officer" A .From a bare reading of the above certificate, it is clear that it is necessary for the police officer to certify that he has explained to the accused that the accused is not bound to make a confession and if he does so such confession may be used as evidence against him.

It is further required to be recorded that he believes that the confession was voluntarily made. He has to record that B the confessional statement has been taken in his presence and hearing and recorded by him. The confessional statement should be read over to the person making it and admitted by him to be correct and it should be certified .l. that it contains a full and true account of the statement made by the accused. The certificate which is required to be given by the police officer is not a mere c formality, but it is for the purposes of ascertaining that the police officer has recorded the confession keeping in mind and being fully aware of the fact that the confession recorded by him is a voluntary confession and with the information available to the accused that he is not bound to make such confession and if he does so it will be used as evidence against him. A duty is cast on the police officer who is to record the confession to bring at the D relevant time these facts to the notice of the person whose confession is going to be recorded.

51. In the present case, we have gone through the certificate given by the police officer (PW-42) at the bottom of the confessional statement, translated version of which is to the following effect:- "I am satisfied that the aforementioned confession has been given by the accused voluntarily and that no pressure or threat has been given to him. I believe that the accused knows that the statement will be used as evidence in the Court and he also knows that he is not F compelled to give such statement. He has signed the statement after he has been explained the statement in Hindi. The statement commenced at 9.00 and completed at 10.25." From the aforesaid certificate, it does appear that compliance of Rule I 5(3) (b) of the TADA Rules has been done in a mechanical manner. It does only G certify that it is the satisfaction of the recording officer that the facts that the accused is not bound to make the confession and if he does so it shall be used as evidence against him, were known to the accused. However, there is no certification that the statement was recorded in the presence and hearing of the police officer; nor the statement has been admitted to be correct by the accused; and that the statement contained a full and true account of what H A was stated by the accused.

52. We have also noticed the fact that in spite of the directions issued by this Court in Kartar Singh (supra), the accused whose statement was recorded under Section 15 of the TADA Act on 5.5.1995 and 8.5.1995 was not produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate B to whom the statement is required to be sent under Rule 15(5) along with original statement of confession. Instead, the accused was sent back to the police custody after recording of his confessional statement. Though this Court in later cases like S.N. Dube 's case (supra) and Lal Singh v. State of r Gujarat and Anr., [2001] 3 SCC 221 has held that compliance of the guidelines issued in Kartar Singh (supra) was not mandatory as they were not C incorporated in the Act or in the Rules, nevertheless, if proved to be followed they would have added a ring of credibility to the prosecution story, particularly when he was arrested on 28.4.1995 and there was ample opportunity to do so.

53. The Designated Court on overall consideration of the evidence D brought on recvrd in regard to the confessional statement recorded of the accused Mushraf has not found it voluntary. We have been taken through the reasoning given by the Designated Court. On considering the evidence independently and legal provisions, we are of the view that the Designated Court has not committed any error in rejecting the confessional statement of E accused Mushraf. We do not fmd that the acquittal of Mushraf is contrary to the established principles of law or that the evidence which has come on record proves the case against Mushraf beyond reasonable doubt for his involvement in the commission of crime.

54. For the aforesaid reasons, the order of acquittal recorded by the F Designated Court in respect of all accused persons except accused no. 8/ respondent no. 5 herein-Gurnamsingh, is confirmed. We find respondent no. 5-Gurnamsingh guilty for the offence punishable under Section 5 of the TADA Act and accordingly convict him. He is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.2,000/- only and in default to suffer rigorous imprisonment for six months. The said accused is on bail. G He shall be immediately taken into custody to serve the sentence.

55. The appeal stands disposed of. B.S. Appeal disposed of.