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INTENTION, CONFESSION AND EVIDENCE: - A CRITIQUE ON SANJAY DUTT V.

STATE OF MAHARASHTRA
-Anuj Bansal*
ABSTRACT
1993 Bombay Bomb Blasts’ trial is the longest running trial in India where the final decision was
delivered by the Supreme Court a month over twenty years of the act. The final charge sheet
accusing 129 in total contained many big names, including film star Sanjay Dutt who was booked
under Terrorist and Disruptive Activities (Prevention) Act, 1987 along with Arms Act, 1959 and
Indian Penal Code for possession of prohibited weapons in a notified area. In light of the evidences
gathered, Sanjay Dutt was convicted under Arms Act however escaping liability under TADA
Provisions.
The decision was special in the sense that Supreme Court of India had many crucial issues to
decide since the precedent on the same roamed in corridor of uncertainty. Though the connection
in series of events was correctly affirmed as a vital evidence against the accused, admitting the
confession of accused Sanjay Dutt which was recorded under Section 15 of TADA as an evidence
against him seems to be controversial and needs to be tested on the touchstone of other statutory
provisions including Constitution of India. Further, the reluctance of the court to extend the
doctrine of Mens Rea to Arms Act, 1969 also raises questions as to why the offences under Arms
Act, 1969 are essentially strict liability offences. The author has examined in detail and tried to
resolve the abovementioned controversial issues along with an analysis of the final sentence
thereof in light of Probation of Offenders Act, followed by the conclusive remarks of the author.

KEY WORDS
1. TADA:- Terrorist and Disruptive Activities (Prevention) Act
2. Mens Rea:- Mental element of guilt in a criminal act
3. Legislative Intent:- Objective of the legislative bodies behind an enactment
4. Confessional Statement:- Statement of an accused person admitting liability

*
III Year, B.A. L.L.B. (Hons.), Dr. Ram Manohar Lohiya National Law University, Lucknow. The critique has been
written under valuable guidance of Dr. K.A. Pandey and Dr. Vipull Vinod. It is declared that the critique is a
copyrighted work and infringement of the same shall amount to an offence under relevant laws.
INTRODUCTION

The trial of those accused in 1993 Bomb Blasts of Bombay is the longest running trial of India
where the Supreme Court of India delivered the final decision after a month more than the
occurrence of the blasts. The original charge sheet contained the names of a total of 189 people,
while the final charge sheet contained 129 names out of which 100 were convicted by the
designated court in a trial that lasted for about 15 years.
Sanjay Dutt, a veteran film actor was also named for possession of prohibited weapons in a notified
area and having a hand in the bomb blasts that rocked the financial capital of India on March 12,
1993. He was consequently arrested and booked under Terrorist and Disruptive Activities
(Prevention), Act 1987 which is perhaps the first and last attempt of Indian legislature to counter
terrorism by having a special legislation in force to define and punish terrorist activities along with
other offences. Though TADA was later repealed in 1995, however the trial of cases lodged under
TADA was allowed to continue.

SUMMARY OF FACTS

The appellant, Sanjay Dutt (A-117) was delivered 3 AK-56 rifles and 250 rounds of ammunition
along with some hand grenades at his residence on 15.01.1993 by Samir Hngora, Hanif
Kandawala, Ibrahim Musa Chauhan @ Baba and Abu Salem. Two of the rifles were however taken
away on 18.01.1993.
On 12.03.1993, explosions took place in Bombay at various places. A-117 left for Mauritius on
02.04.1993 and was arrested on 19.04.1993 upon his arrival from Mauritius suspecting him of
having a hand in the terrorist act after the arrest of Samir Hingora and Hanif Kandawala. In a
statement made by A-117 to the police, the police party approached the house of Yusuf Nullwala
(A-118) who was already detained by the Dongri Police Station in connection with non renewal
of arms license. A-118 had been contacted by A-117 when A-117 was in Mauritius and got to
know about the arrest of Samir Hingora and Hanif Kandawala. He had asked A-118 to pick up the
AK-56 rifle from his house and destroy it. A-118, with the help of A-118 committed the said
destruction.

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Thereafter, on the statement of A-118 the police party raided the house of Kersi Bapuji Adajania
(A-124), who produced before the police a spring and a rod remain of the burnt AK-56 rifle. He
then led the police to A-125, whose statement led the police to proceed to the house of Ajay Yash
Prakash Marwah (A-120) from whom a bag containing the 9 mm. Pistol with cartridges was
recovered.
The cases were registered together for the commencement of a joint trial since the facts formed a
part of an unbroken chain inseparably connected with each other. Confession of A-117 was
recorded in two parts by K.L. Bishnoi, the then D.C.P. (PW-193) and on 03.05.1993, A-117 was
sent to judicial custody. On 04.11.1993, a consolidated charge sheet was filed by the police where
A-117 was booked under S. 3(3), S. 5 and S. 6 of TADA along with S. 3 and S. 7 read with S. 25
(1-A) and (1-B) (a) of Arms Act, 1959. After a long trial, the designated court in its orders dated
28.11.2006 and 31.07.2007 convicted A-117 under S.3 and S.7 read with S.25 (1-A), (1-B) (a) of
the Arms Act, 1959 for rigorous imprisonment of six years along with a fine of Rs.25, 000.
A-117 then instituted this appeal in the Supreme Court of India, and also prayed to claim the
benefits under S. 4, Probation of Offenders’ Act.

PROCEDURAL HISTORY INVOLVED


A-117 was released on interim bail by High Court on 05.05.1993 till the filing of charge sheet by
the Police. After the charge sheet was filed by the Police in the designated court, the designated
court rejected the bail application by an order dated 04.07.1994 of A-117 and the same was
maintained by the Supreme Court of India in an order dated 23.09.1994 that pronounced its
decision after referring the matter to a constitutional bench regarding the interpretation and
construction of TADA provisions. In lieu of the report of the Review Committee, A-117 filed
another application for bail before the designated court on 11.09.1995. The rejection was
challenged in the Supreme Court of India vide Criminal Appeal No. 1196 of 1995 and was
consequently granted bail till the completion of his trial.

LAW ON THE POINT

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Under its S. 5, TADA penalizes the possession of certain prohibited arms and ammunitions with
imprisonment for a term which shall not be less than five years and may extend to life
imprisonment. S. 6 of the Act enhances the penalty in case the person possesses such arms and
ammunitions with intent of aiding any terrorist or disruptionist. S. 3(3) prescribes the punishment
for abetting or aiding an act of terrorists, which shall not be less than five years of imprisonment
and might extend to life imprisonment. Supreme Court of India, taking into consideration the
legislative intent behind the framing of TADA in Kartar Singh v. State of Punjab1 has added a new
dimension to the offence defined under S. 5 of TADA and has held that an inter-relation between
S. 5 and S. 3 of the Act needs to exist, however remote it may be. This has led to the inclusion of
the element of ‘guilty mind’ while reading S. 5 of TADA.

S. 15 of TADA allows certain confessions made to the police officer to be taken into consideration
during the trial. The procedural law under Code of Criminal Procedure as well as Indian Evidence
Act however deals with recording of confessions. Supreme Court of India has held this law as
valid despite the fact that it is hit by S. 25 of Indian Evidence Act, 1872 in the case of Ravinder
Singh @ Bittu v. State of Maharashtra2 (Bittu) and ruled that the confession made under S. 15 of
TADA can be used as an evidence against an accused under other laws in case he is not charged
with any offence under TADA.

S. 3 of the Arms Act, 1959 prohibits the possession of arms and ammunitions without licence
under the provisions of the act while S. 7 of the act penalizes the possession of prohibited arms
and ammunitions without the sanction of Central Government. Punishment for committing an
offence under S. 5 of the Act has been prescribed in S. 25 (1-A) of the Act while contravening the
provisions of S. 3 of the Act invites punishment under S. 25 (1-B) (a) of the Act.

1
(1994) 3 SCC 569
2
(2002) 9 SCC 55

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AUTHOR’S COMMENTS: - ANALYSIS OF THE DECISION

While hearing the appeal in India’s biggest running trial, Supreme Court of India discussed at
length a plethora of issues ranging from the fundamental principles of criminal law to its
procedural aspects. As far as the trial of Sanjay Dutt (hereinafter appellant), it was triggered by
many extraneous factors owing to the fame of the appellant; further complicating the matter. For
the sake of convenience, the prime issues of the case are discussed under separate heads as under:-

1. Arms Act, 1959 and the ‘fault element’.

The first issue that arises for discussion is the silence of concerned provisions of Arms Act, 1959
as well as TADA (P) Act, 1987 on the question of presence/absence of mental element in the
commission of an offence. Mens Rea has been a debatable aspect during the initial stages of
modern criminal law, and the issue, though much settled today, generates difficulties when the
legislature does not impart explicitly the presence/absence of guilty mind in the concerned offence.
In the instant case, the designated court acquitted the accused of all charges under TADA
considering the absence of any guilty mind to commit an offence under TADA. Reliance was
placed by the trial court on the decision of Supreme Court of India in Sanjay Dutt v. State of
Maharashtra3. However, no such extension of the doctrine been made to S. 3 and 7 read with S.
25 (1-A) and (1-B) (a) of the Arms Act, 1959; under which the accused has been held guilty. What
is interesting to see here is that the defence counsel did not even raise in entirety before the court
an argument to stretch the principle of ‘guilty mind’ to the provisions of Arms Act.

A reading of the concerned provisions makes it clear that the provision neither denotes Mens Rea
nor explicitly rules it out. There has to be a presumption of the presence of fault element in every
crime unless it has been explicitly ruled out by the legislature or the implied ruling out of Mens

3
(1994) SCC 5 402.

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Rea is compellingly clear.4 The stand on the element of ‘guilty mind’ while making any person
liable under this section remains a question of uncertainty.

Prosecution pleaded before the Honourable Court that the possession of an AK-56 rifle and
accused’s attempt to dispose it off clearly indicates accused’s guilty mind to commit the offence.
However, confession of the appellant, reliance on which was placed by the designated court in
convicting him mentioned the level of insecurity experienced by the appellant and his family
during the riots in Mumbai, and that the possession of AK-56 rifle was taken by the appellant with
a bona fide intent of self defence and safeguarding his family in case of attack by the mob. To that
effect, two other rifles were even returned since he felt it enough to possess one such rifle to
achieve the purpose of securing the life of his family. It has been held by the Kerala High Court in
Sankaran Sukumaran v. Krishnan Saraswathi and Another5 that the belief, when it is unreasonable
but honest shall provide a complete defence to escape criminal liability. In the instant case, there
is no proof by the prosecution that the belief of the appellant has been dishonest. The honesty of
belief can be further established from the fact that there were continuous apprehensions of attacks
to the family of appellant since the family was involved in helping people residing in Muslim
dominated riots affected areas of Behrampada. After the attack on Sunil Dutt, father of the
appellant; family had even asked for an increased police protection, records of which are present
in the police file.

Moreover, Mens Rea required to constitute a crime can either be subjective or objective and it shall
differ from case to case as to what kind of Mens Rea needs to be assigned. It is a general rule that
harsher the punishment, more subjective the element of Mens Rea. (1-A) of S. 25 of the Arms Act
prescribes the punishment for committing an offence under S. 5 of the Act, which ranges from
three years to seven years. A punishment where the prescribed statutory minimum is of three years
in no way can be considered as a nominal punishment in any sense. Hence, the contention of ruling

4
K.A. PANDEY, PRINCIPLES OF CRIMINAL LAW IN INDIA: CASES AND MATERIALS, 97 (2014).
5
1984 CriLJ 317.

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out subjective Mens Rea; and that the appellant did not act as a man of common prudence and
failed to exhibit a threshold of ability in appreciating the risk holds is not tenable in this case.

Therefore, the only justification in lieu of which the Mens Rea can be ruled out from the concerned
provisions of Arms Act shall be the legislative intent behind the formation of the Act, which would
stand defeated if the element of ‘guilty mind’ is included in the provision. In this regard, author
would like to submit that it was held in the case of People for Animals v. Union of India6 that the
object of Arms Act is to preserve public security and maintain public order. It is hence clear that
the legislators did not intend to cover within the ambit of the act all such people who has no
intention of disturbing public order or hampering the security of society. In the instant case, neither
of the two was sought to be procured by the appellant after taking into possession the AK-56 rifle.
Therefore, it cannot be said that the appellant was actually acting in contravention to the object
and spirit of the enactment. It can be inferred that he was not amongst those who need to be brought
to book under Arms Act, 1959.

2. Admissibility of confessional statement as evidence: S.15 of TADA

The biggest issue at hand in the instant case relates to the admissibility of appellant’s confession
recorded under S. 15 of TADA as an evidence against him. The extension of the confession so
recorded to Arms Act, 1959 in order to hold the accused liable is very much questionable. The
counsel on behalf of appellant submitted that the reliance can be placed on such a confession only
when the accused is prosecuted under TADA and not otherwise, since admission of such a
confession as an evidence will be in contravention of S. 25 of Cr.P.C. which is the procedural law
applicable to Arms Act, 1959. Honourable Court, placing reliance on its decision in Mohd. Farooq
Abdul Gafur v. State of Maharashtra7 where the confession was used to convict the accused on
the basis of the confession made by him extended its application to the instant case which is
erroneous. In Abdul Gafur, the accused was convicted under Maharashtra Control of Organized
Crimes Act which laid down a provision in S.18 for admissibility of confessions made by the
accused as an evidence against him. It is entirely irrelevant in context of the instant case since the

6
(2011) DLT 180 460.
7
(2010) SCC 14 641.

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appellant has already been acquitted of TADA charges, thus making the application of S.15
redundant in the instant case.

Honourable Court has opined that merely because the confession was made under TADA and the
accused has been acquitted of charges under TADA, it shall not render the evidence void. An
evidence, if fulfills the conditions of S. 15 is a genuine evidence and placing reliance on such
evidence is perfectly all right. Decision of U.S. Supreme Court in Brown v. Mississippi8 ruled that
a confession, as long as voluntary and procured without any coercion is admissible as an evidence
against the accused. In English law as well, a confession as long as relevant with the case can be
considered to be admitted as evidence in the court.

However, insight into case laws is necessary when the provision is silent or ambiguous on the point
and it seems that the court has failed to appreciate the explicit language contained in S.15 of TADA
that a confession so recorded is admissible as an evidence for the offences under TADA or rules
made thereof. There is no ambiguity whatsoever in the statute, and hence the extension of the
specific provision outside its ambit is unjustified.

3. Entitlement of the appellant to claim benefits under Probation of Offender’s Act.

As far the claims of the appellant for the benefits under S. 4 of Probation of Offenders’ Act, the
author is in full agreement with the decision of the Supreme Court to reject all such claims. The
Probation of Offenders’ Act vide its S. 4 authorizes the Court to release an offender taking into
consideration his good behavior and moral conduct. It is true that the guilt of the appellant has not
been sufficiently proved in this case. But, his conduct and behavior can be gauged from his timeline
that saw his mother die because of his drug addiction, two unsuccessful marriages and the disputes
of possession of child as well as a six month imprisonment in a case pertaining to possession of
contraband substances.9

8
297 U.S. 298 (1936).
9
SANJAY DUTT, http://en.wikipedia.org/wiki/Sanjay_Dutt (last accessed October 10, 2015).

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He was neither a first time offender in this case, nor does the life history evolve anything that is
exemplarily good enough to make him claim any benefit under the provisions of Probation of
Offenders’ Act. It is in fact a very loose and lenient approach of the Supreme Court of India which
led to the reduction in his sentence from rigorous imprisonment of 6 years to that of 5 years.

CONCLUSION

The decision of the Supreme Court of India is a very interesting one, and has revealed to a great
extent as to how a judge takes cognizance of media highlighted matters even though the case of
prosecution is not very strong. In this case, there have been errors from the defence counsel who
did not emphatically plead the absence of guilty mind. Moreover, the court seems to be erroneous
and ignorant of the statutory provision while admitting the confession as an evidence. It may be
said that the judiciary overreached its authority by convicting the appellant even though there was
no proof of mental element of crime in this case as well as the evidence on record was poor to
establish the case beyond reasonable doubt. When the prima facie guilt is presumed from the virtue
of the facts of the case, it is for the defence counsel to rebut such presumptions. Overall, the
judgment is slightly erroneous as the rationale seems to be based more on equity than on law.

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