NIA Did Not Make Effort To Go Out In The Sun To Collect Independent Evidence- Kerala HC While Acquitting Accused In 2006 Kozhikode Bomb Blasts

The Special Court for NIA Cases at Ernakulam had found accused Nos. 1 and 4 guilty of the offences under Sections 16(1) and 18 of the Unlawful Activities Prevention Act, 1967 (UAPA) and were sentenced to imprisonment for life. They were also sentenced to three years imprisonment under Section 124(A) of IPC and a further sentence of two years under S.153(A) of IPC. Accused No. 1 was further sentenced to imprisonment for life under Section 4(b) of the Explosive Substances Act, 1884.

The appeal of the NIA was against the acquittal of accused Nos. 3 and 9 by the Trial Court.

The accused Nos. 2 and 8 are absconding and accused No. 6 died in an encounter in Kashmir. Accused No. 5 was not charge-sheeted.

The Trial Court relied heavily on the testimony of the accused No. 7, who had turned approver and was examined as PW1.

The Judgment of the Kerala High Court is by a Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman A. A.

Advocates Suresh Babu Thomas and S. Rajeev appeared for the accused in their appeal while Senior Counsel Sonia Mathur, appeared for the NIA, and Advocate P.C.Noushad appeared for the accused acquitted by the Trial Court in NIA's appeal.

Primary Arguments of the Convicts

• Accused No. 1 (A1) was not identified by anyone at the scene of occurrence or by the approver.

• The disclosure statements, the confessions allegedly made by A1, are inadmissible in evidence and are not confession under Section 27 of the Evidence Act. No recovery was made based on the statements.
  

• The alleged motive behind the act was retaliation against the denial of bail to the accused in the second Marad incident (a communal riot) in May, 2003, but the gelatin sticks were procured in 2002, long before that.

• The gelatin sticks are perishable and could not have been used long after procurement.

• Explosives Act could not have been applied without obtaining prior consent of the District Magistrate.

NIA's Appeal Against Acquittal

In NIA's appeal against the acquittal of accused Nos. 3 and 9 by the Trial Court, it was argued that it was pursuant to the disclosure made by A3 that the site of the experimental blasts came to the notice of the Investigating Agency. It was argued that PW1 speaks of A9 and his involvement in the placing of the bomb at one of the locations.

Contradiction in Oral Arguments of NIA, Pleadings and Evidence

The Court notes that it was the categorical submission of the Senior Counsel for NIA that the prosecution never had a case that the very same gelatin sticks procured in 2002 or 2004 were used in the explosion.

The Court notes that in the written submissions filed after the closure of arguments, it is asserted that the gelatin sticks purchased were used in the explosion and that the durability or effectiveness of gelatin was never put to the scientific experts' examined by the prosecution.

The Court notes that the oral argument of the NIA was also contrary to the disclosure statement recorded by the NIA and the 'point out memo' prepared by it.

The Court notes that the argument of the Senior Counsel that evidence regarding procurement of gelatin sticks by the accused was merely for establishing that the accused had access to gelatin sticks, is also contrary to the deposition of the investigating officer.

Discrepancy in Evidence Regarding Gelatin Sticks

The Court notes that PW24 to PW26 stated that the purchase of gelatin sticks was in 2002 as opposed to the disclosure statement regarding purchase having been in 2004. The Court also noted the discrepancy in how the sticks were handed over to the accused.

The Court notes that the disclosure is of purchase of 50 sticks while the witnesses speak only of 5 to 6 gelatin sticks. "The I.O., PW58, attempted to cover up in cross-examination, by saying that earlier 50 sticks were purchased and later 5 to 6; which were used in the Kozhikode blast. But two such purchases are not spoken of by the witnesses", the Court holds.

The Court also notes that "there is absolutely no evidence produced on the preparation and what is proffered fails to impress us".

Marking of Disclosure Memos and Point Out Memos

The Bench notes that at every point when objections were raised before the Trial Court regarding the marking of disclosure memos and point out memos on the ground of it not leading to any discovery of facts or material objects, the Trial Court noted it, but its decision was deferred to after marking the documents.

The Court notes that the objections were never considered even in the final judgment.

Confession of Accused Not Admissible

After referring to various precedents on the subject, the Court holds that for a confession to be admissible under Section 27 of the Evidence Act, it "should lead to the discovery of a fact; leading to the production or recovery of a tangible object, not in the knowledge of the police and only so much of the information that distinctly relates to the fact discovered is admissible and shall be proved".

The Court also holds that even under Section 8 of the Evidence Act, the conduct is relevant only if it influences or is influenced by any fact in issue or relevant fact.

Approver's Testimony Was Not Credible or Corroborated

The Court finds that the approver's testimony was not credible for various reasons, including that nothing was shown from his antecedents which would make him a willing partner of the seditious act.

The Court holds that the prosecution can't seek to corroborate the testimony of the approver from his own Section 164 statement.

The Court rejects the argument of the NIA that the Defence did not challenge the version of the approver and holds, "Immediately we have to notice that the approver has been found by us to be unreliable and the statement, even if not challenged has to be examined in the context of the available corroboration. We also found PW1 to be not a close associate of the accused and only a casual acquaintance; throwing suspicion on his very involvement".

The Court holds that all disclosures recorded contain a confession regarding the involvement in the crime, which is inadmissible under Sections 25 and 26, whether for the purposes of Section 27 or Section 8. "When that is eschewed, the disclosures boil down to the fact of the accused having gone to the locations; from where nothing has been discovered nor can it be said to be a conduct having any relation to the cause or effect of the explosion", the Court holds.

Accused Not Properly Identified By Approver

The Court finds that the accused was not properly identified by the approver. The Court rejects the argument of the prosecution that the Defence did not object to acceptance of identification by the Trial Court and holds that it is "incumbent on the prosecution, to ensure that a credible identification is made, which has the duty of establishing the guilt of the accused beyond any reasonable doubt. When such an identification has not been attempted by the prosecution or the Court, there is no reason why the defence should point out the default of the prosecution and thus precipitate an identification which the prosecution failed to carry out."

Invocation of Explosives Act

On the issue of invocation of the Explosives Act, the Bench rejects the argument of the NIA that consent of the Central Government, being a higher authority to the District Magistrate, will suffice. The Court holds "the consent should be by the District Magistrate and the Central Government cannot be said to be the higher authority; especially when that Government does not exercise any control; supervisory or otherwise over the District Magistrate".

On NIA's Investigation

The Court observes, "The Investigators, we cannot but say, did not make a concerted effort to 'go out in the sun' to collect independent evidence of whatever version the accused told them; though we do not venture to speculate whether they employed 'red pepper' to elicit the disclosures. In their anxiety to wrap up the case; we say anxiety since we do not think the Officers of the NIA would be ignorant of the law on the subject, they even recorded the confessions made by the accused, clearly inadmissible under Section 25 & 26 of the Evidence Act".