Case: Sanjay Dutt (A-117) and Ors.  Vs. State of Maharashtra, through CBI (STF), Bombay

with two children aged 1 and 1/2 years and they need their fathers presence in their life. He further submitted that he has been actively involved in an AIDS charity and raises funds for the free treatment of aids patients who cannot afford the same, besides visiting the hospitals/centres. It is further submitted that he is on the Board of Directors of Save the Children Foundation and helping in raising funds for children who are needy, orphaned and destitute as their Brand Ambassador for a long time, even prior to his being charged in this case. 77. In view of the above, learned senior counsel for A-117 draws attention of this Court towards the following decisions, viz., Ved Prakash v. State of Haryana 1981 (1) SCC 447 , this Court observed that the social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. 78. In Jugal Kishore v. State of Bihar (1972) 2 SCC 633 this Court observed that the modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. 79. This Court in Ratanlal v. State of Punjab, (1964) SCR 676 has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on Probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances. 80. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. The same has also been held by this Court in Chhani v. State of U.P. (2006) 5 SCC 396 . 81. Section 360 of the Code of Criminal Procedure does not provide for any role for probation officers in assisting the courts in relation to supervision and other matters while the Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that a person found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act, shall not suffer disqualification, if any, attached to the conviction of an offence under any law. The Code of Criminal Procedure does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anamolous results. The intention to retain the provisions of Section 360 of the Code and the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provisions of the Code. 82. Keeping those information in the form of an additional affidavit, let us consider his claim and eligibility of applying Section 4 of the Probation of Offenders Act. 83. Sub-Section 4 of the Probation of Offenders Act contains the words Notwithstanding anything contained in any other law for the time being in force. The above non obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an overriding effect and shall prevail if the other conditions prescribed therein are fulfilled. Those conditions are: (i) The accused is found guilty of having committed an offence not punishable with death or imprisonment for life; (ii) The Court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation; (iii) The accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behaviour. 84. The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation, which he would lose in case he is incarcerated in prison and associates with hardened criminals. It is submitted that the provisions of the said Act are beneficial provisions and, therefore, they should receive wide interpretation and should not be read in a restricted sence vide Ishar Das v. State of Punjab, 1973 (2) SCC 65 . 85. Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or above the age of 21 years. This section is intended to attempt possible reformation of an offender instead of inflicting upon him the normal punishment of his crime. It is submitted that it is settled law that while extending benefit of the said provision, this Court has to exercise its discretion having regard to the circumstances in which the crime was committed, viz., the age, character and antecedents of the offender. It is also settled law that such exercise of discretion needs a sense of responsibility. The section itself is clear that before applying the same, this Court should carefully take into consideration the attendant circumstances.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. The abovesaid confession highlighted the crime for which the Appellant-Sanjay Dutt has been charged. The following facts emerge from the abovesaid confession:i) He was already having three licensed firearms.ii) He developed acquaintance with Anees Ibrahim -brother of Dawood Ibrahim during a film-shooting in Dubai.iii) He expressed his desire to Samir Hingora (A-53) and Hanif Kandawala (A-40) to have an automatic fire-arm.iv) They came with one Salem with whom Sanjay Dutt was already acquainted with and they assured him of the delivery of weapons the next day in the morning.v) They came in the morning of 16.01.1993 with one other person and delivered 3 AK-56 Rifles and 250 rounds.vi) After 2 days, he returned 2 AK-56 and ammunitions but retained 1 AK-56 and some ammunition.vii) In April, while he was shooting at Mauritius, he heard the news of the arrest of Samir and Hanif, on which, he got frightened and requested his friend Yusuf Nulwalla to destroy the weapons.20. The Appellant (A-117) not only implicates himself in the above said statement but also amongst others the Appellant-Yusuf Nulwalla (A-118). The abovesaid confession has been duly recorded by PW-193 who has proved the compliance with the provisions of law while recording the confession. The abovesaid confession is a substantive piece of evidence and it has been held in a series of judgments that the confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA. Further, the confessional statement establishes the unauthorized possession of weapons in the notified area of Bombay.21. The confession of the Appellant (A-117) is substantiated and corroborated with the confession of other co-accused, namely, Samir Hingora (A-53), Baba @ Ibrahim Musa Chauhan (A-41), Mansoor Ahmed (A-89), Hanif Kandawala (A-40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-124) which are as under.22. The abovesaid confessional statements of the co-accused clearly establish the case against the Appellant-Sanjay Dutt and also corroborate with each other in material particulars. The following facts emerge from the abovesaid confessional statements:(i) The Appellant had acquired 3 AK-56 rifles and its ammunitions unauthorisedly.(ii) Samir Hingora (A-53), Hanif Kandawala (A-40) and Salem (A-139) provided the above said arms and ammunitions to the Appellant at his residence.(iii) On being frightened after seeing the weapons, the Appellant contacted Hanif Kandawala (A-41) and requested him to take away the weapons.(iv) Abu Salem came after few days and the Appellant returned 2 AK-56 rifles and also ammunitions, but retained one AK-56 rifle and some of its ammunitions.Confessional Statement of the Appellant - Yusuf Mohsin Nulwalla (A-118)23. Confessional statement of A-118 under 15 of TADA was recorded on 27.04.1993 at (14:20 hrs.) and 29.04.1993 at (16:00 hrs.) by Shri K.L. Bishnoi, the then DCP, Zone-III, Bombay.24. From the abovesaid confession, the following facts emerge:i) Yusuf Mohsin Nulwalla is an old and well known friend of Sanjay Dutt.ii) In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.iii) On reaching there, he discovered AK-56 and a pistol and ammunition.iv) He tried to destroy them.v) He took all these objects to a friend of his, namely, Kersi Bapuji Adajania (A-124)vi) A-124 helped him to destroy the same but he retained the pistol with him.vii) Upon being reminded about destroying the pistol, A-124 assured A-118 that he would take care of it.25. In view of the above, it is seen that the Appellant (A-118), upon instructions, caused destruction of evidence related to an offence, which were unauthorisedly possessed automatic firearms/weapons in a notified area, attracting the provisions of the Arms Act. The confession of A-118 not only involves and implicates him, but also implicates Kersi Adajania (A-124). The confession of A-118 corroborates with the confession of A-117 as well as A-124.Confessional Statement of the Appellant - Kersi Bapuji Adajania (A-124)26. The confessional statement of A-124 under Section 15 of TADA was recorded on 27.04.1993 (15:10 hrs.) and on 30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP, Zone-III, Bombay.27. From the above confession, the following facts emerge:(i) A-118 was a sub-contractor of A-124. A-124 was also acquainted with A-117. All three of them were fond of hunting and, in fact, went together for hunting once.(ii) A-124 had his workshop in his house where he was keeping all his tools including the gas cutter.(iii) In or around April, A-118 contacted A-124 in order to destroy an AK-56 and a pistol belonging to Sanjay Dutt (A-117).(iv) A-124 permitted him to do so.(v) A-124 personally destroyed AK-56. (vi) A-124 kept with himself the pistol.28. The abovesaid confession establishes the charge framed against A-124 that he knowingly destroyed evidence related to an offence. A-124 was thereafter in unauthorized possession of the fire-arm. The abovesaid confession also corroborates in material particulars, the confession of A-118.29. The abovesaid confessions of the Appellants, viz., A-117, A-118 and A-124 have been recorded by PW-193, who has proved that the said confessions were recorded after following the requirements of the provisions of Section 15 of TADA. It is relevant to point out that notwithstanding vigorous cross-examination of the witness (PW-193), he stood firmly without being shaken. A long line of arguments was placed before the Designated Court attacking the voluntariness of the confession on various occasions, which had been considered in detail by the trial Court and we fully agree with the same.37. It is clear that a confessional statement duly recorded by a Police Officer is a substantive piece of evidence and the same can be relied upon in the trial of such person or of the co-accused, abettor or conspirator if the requirements of Section 15 of TADA, and the rules framed thereunder are complied with. The police officer, before recording the confession, has to observe the requirement of Section 15(2) of TADA. A voluntary and truthful confessional statement recorded under Section 15 of TADA requires no corroboration. However, as a matter of prudence, the court may look for some corroboration if confession is to be used against co-accused. It is made clear that whether such confession requires corroboration or not is a matter for the court to consider such confession on the facts and circumstances of each case. If the confession made by an accused is voluntary and true, it is admissible against co-accused as a substantive piece of evidence and minor and curable irregularities in recording of confession, such as omission in obtaining the certificate of the competent officer with respect to the confession do not affect the admissibility of the said evidence.It is settled law that a voluntary and free confession, even if later retracted, can be relied upon.39. In the case of the Appellant - Sanjay Dutt (A-117), the retraction statement was not made at the first available opportunity. After the recording of his confession, within 10 days, the accused was released on bail by the High Court, and the accused remained free for a considerable period of time. In fact, the judgment delivered by the Constitution Bench on 09.09.1994 also noted down that the said confession of the accused remained un-retracted. The retractions were made many months after the recording of the confession.42. In Manjit Singh v. CBI (2011) 11 SCC 578 ,  this Court, while considering the question whether retracted confessions of the co-accused could be relied upon to convict the accused, held that the retracted statements can be used against the accused as well as the co-accused provided such statements were truthful and voluntary when made. In the said case, two accused persons made confessional statements and, subsequently, they retracted from their statements. This Court observed:87. A confessional statement given under Section 15 of TADA shall not be discarded merely for the reason that the same has been retracted...It is pointed out that the confession in the present case was truthful and voluntary and has been recorded after strictly following the law and the prescribed procedure, the subsequent retraction and denial of such confessional statements in the statement of the accused under Section 313 was only as a result of an afterthought.49. In Ravinder Singh v. State of Maharashtra (2002) 9 SCC 55 ,  this Court held that a confession does not require any corroboration if it relates to the accused himself. It was further held that there was enough evidence to provide general corroboration to the confessional statement. It was also held that minor contradictions in the statements of the accused were of no consequence once the confessions were held to be reliable.55. In Manjit Singh v. CBI (2011) 11 SCC 578 ,  the following observations of this Court regarding the admissibility of confessional statements are pertinent:91. In Ravinder Singh case, the Court relying on State v. Nalini, S.N. Dube v. N.B. Bhoir and Devender Pal Singh v. State (NCT of Delhi), held that: (Ravinder Singh case, SCC p. 59, para 17)17. It is thus well established that a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration.This apposite observation by the Bench of two learned Judges in Ravinder Singh case (supra) should be considered with measured caution and we believe, taking into account the ground realities that it would be prudent to examine the authenticity of a confession on a case-by-case basis.56. The corroboration as required in the abovesaid judgment can also be found in the case at hand, both in the nature of substantive evidence in the form of the confessions of the co-accused, as well as in the oral testimony of witnesses, including the eye witnesses to the incident who have identified the Appellant-Sanjay Dutt (A-117), as well as the co-accused persons, viz., A-41 and A-53.57. Apart from the evidence contemporaneous to the arrest of the abovesaid three accused and the recovery made from A-124 and subsequent recovery at the instance of A-124 from A-120, are also relevant in respect of all the three abovenamed Appellants.58. It is clear that the sequence of events after the arrest of Sanjay Dutt till the recovery of pistol from A-120, forms part of an unbroken chain inseparably connected to each other. No foul play can be assumed in view of the fact that the events happened in quick succession one after the other, lending credibility and truthfulness to the whole episode. The role and the part played by A-118 and A-124 is also clear from the evidence relied upon by the prosecution in respect of A-117, which corroborates with each other in material particulars and is thus a substantive piece of evidence.Deposition of Prosecution Witnesses:59. Apart from the aforesaid evidence, the involvement and the role of the Appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as follows:Deposition of Shri K.L. Bishnoi (PW-193)PW-193, the then DCP, deposed as under with regard to the confession made by A-117:(i) On 26.04.1993, at about 3:15 p.m., A-117 was produced by A.P.I. Shri Sanjay Kadam before him in the room given by Senior P.I. Shri Kumbhar, in the office of DCB, CID, Crime Branch, for recording of his confession and he took the proceedings by asking A-117 certain questions in English and during the same, amongst other replies given by him, he told him that he wanted to make a statement.(ii) During the said proceedings, amongst other, he had explained to A-117, that he was not bound to make a confession and the same can be used against him in evidence and when A-117 still intended to give the confession, PW-193 gave him 48 hours time to reconsider his decision.(iii) Exhibit 868 being the true and correct record of the said proceedings made by him with the help of a typist in his presence which was read over to A-117 and confirmed by him as of being correctly recorded, and bearing the signatures of A-117 as well as of PW-193.(iv) On 28.04.1993, at about 16:00 hours, A-117 was again produced before P.W. 193 in the chamber of Senior P.I. DCB, CID, in the office of Crime Branch, C.P. office by A.P.I. Shri S.A. Khere for further proceedings, and he followed all the procedures mentioned above and recorded the same which is Exh. 868-A.(v) PW-193 deposed that A-117 confessed that he already had three licensed firearms.(vi) He developed acquaintance with Anees Ibrahim-brother of Dawood Ibrahim during a film-shooting(vii) He expressed his desire to have an automatic fire-arm to Samir Hingora (A-53) and Hanif Kandawala (A-40).(viii) Sanjay Dutt was already acquainted with Salem and he had assured him of delivery of the weapons.(ix) With the help of above named persons, 3 AK-56 Rifles and 250 rounds were delivered to A-117.(x) After 2 days, he returned 2 AK-56 rifles and ammunitions, and retained 1 AK-56 and some ammunition.(xi) A-117 kept the same in a handbag and placed it in the private hall on the 2nd floor of his bungalow.(xii) On hearing the news of the arrest of co-accused persons, viz., Samir Hingora (A-53) and Hanif Kandawala (A-40), A-117 contacted Yusuf Nulwalla over telephone and asked him that something is lying in a black coloured bag kept in the hall on the second floor of his house, and it should be taken away immediately and to destroy the objects completely.(v) He was picked up by the police as soon as he landed at Bombay.Deposition of PW-193 with regard to the confession made by A-118:(i) A-118 is an old and well known friend of Sanjay Dutt (A-117).In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.(iii) On reaching there, he discovered one AK-56 rifle, two empty magazines, approximately 250 rounds of AK-56, one pistol and one loaded magazine.(iv) A-118 cutted the rifle into pieces with the help of a hexa-cutting machine.(v) A-118 took all those things to Kersi Adajania (A-124), who was having a gas-cutter, in order to melt the same.(vi) A-118 caused disappearance of evidence of an offence which were also unauthorisedly possessed automatic firearms/weapons.(vii) Next day, he informed A-117 about the completion of the work assigned to him.Deposition of PW-193 with regard to the confession made by A-124:(i) A-124 was very well acquainted with A-117 and A-118. (ii) A-124 had his workshop in his house where he kept all his tools including the gas cutter.(iii) A-118 contacted A-124 and said that he wanted to destroy AK-56 and a pistol belonging to Sanjay Dutt (A-117).(iv) A-124 permitted him to do so.(v) A-124 personally destroyed AK-56.(vi) A-124 kept with himself the pistol.Deposition of Pandharinath H. Shinde (PW-218)The deposition reveals as under:(i) On 11.01.1993, he was posted on guard duty at the bungalow of Sunil Dutt at Pali Hill, Khar, Bombay.(ii) He had worked as a Protection Guard at the said bungalow from 11.01.1993 to 19.01.1993. He was on duty during that period for 24 hours.(iii) On the said day, at about 7:30 a.m., one white Maruti van came to gate No. 2 of the said bungalow and three persons were sitting in the said van.(iv) He identified Ibrahim Musa Chauhan (A-41) and Samir Hingora (A-53) as the persons who were sitting at the back of the said van.Deposition of Manohar Vasudev Shirodkar (PW-219)At the relevant time, PW-219 was Senior Inspector of Police at Khar Police Station, Bombay. His deposition establishes that PW-218 was posted on Protection Duty at the bungalow of Sunil Dutt.Deposition of Suresh S. Walishetty (PW-680)PW-680, the Investigating officer revealed as under:(i) He deposed that Sanjay Dutt (A-117) expressed his desire to make a voluntary statement. Thereafter, he instructed his staff to make arrangement of two persons to act as panch witnesses. The said persons were Shri Tavade and Shri Sawant (PW 211).(ii) PW-680 instructed Shri Rajaram Ramchandra Joshi (PW-475), Assistant Inspector of Police to record the panchnama.(iii) Sanjay Dutt made a voluntary statement in Hindi Language, which was recorded in the memorandum Panchnama Exhibit 1068 by PW-475.(iv) As per the said disclosure, Sanjay Dutt led the Police party to the House of Yusuf Nulwala (A-118).(v) Yusuf Nulwala was produced by the officers of Dongri police station after about half an hour after their return to the office of DCB-CID.(vi) Yusuf Nulwala made a disclosure statement and led the police party to the house of Kersi Adajania (A-124).(vii) Kersi Adajania made a disclosure statement and produced a spring and a rod which was seized by the police and also led the Police party to A-125.(viii) A-125 made a disclosure statement and led the police party to the House of A-120 wherefrom a pistol and its rounds were recovered.