ARUP BHUYAN Vs THE STATE OF ASSAM HOME DEPARTMENT
Bench: MARKANDEY KATJU,GYAN SUDHA MISRA, , ,
Case number: Crl.A. No.-000889-000889 / 2007
Diary number: 14479 / 2007
Advocates: ABHIJAT P. MEDH Vs
SHUVODEEP ROY
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 889 OF 2007
ARUP BHUYAN Appellant (s)
VERSUS
STATE OF ASSAM Respondent(s)
O R D E R
Heard learned counsel for the parties.
This Appeal has been filed against the impugned
judgment of the Designated Court, Assam at Guwahati dated
28.03.2007 passed in TADA Sessions Case No. 13 of 1991.
The facts have already been set out in the impugned
judgment and hence we are not repeating the same here except
wherever necessary.
The appellant is alleged to be a member of ULFA and the
only material produced by the prosecution against the
appellant is his alleged confessional statement made before
the Superintendent of Police in which he is said to have
identified the house of the deceased.
Confession to a police officer is inadmissible vide
Section 25 of the Evidence Act, but it is admissible in TADA
cases vide Section 15 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987.
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Confession is a very weak kind of evidence. As is well
known, the wide spread and rampant practice in the police in
India is to use third degree methods for extracting
confessions from the alleged accused. Hence, the courts
have to be cautious in accepting confessions made to the
police by the alleged accused.
Unfortunately, the police in our country are not
trained in scientific investigation (as is the police in
Western countries) nor are they provided the technical
equipments for scientific investigation, hence to obtain a
conviction they often rely on the easy short cut of
procuring a confession under torture.
Torture is such a terrible thing that when a person is
under torture he will confess to almost any crime. Even Joan
of Arc confessed to be a witch under torture. Hence, where
the prosecution case mainly rests on the confessional
statement made to the police by the alleged accused, in the
absence of corroborative material, the courts must be
hesitant before they accept such extra-judicial confessional
statements.
In the instant case, the prosecution case mainly relies
on the alleged confessional statement of the appellant made
before the Superintendent of Police, which is an
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extra-judicial confession and there is absence of
corroborative material. Therefore, we are of the opinion
that it will not be safe to convict the accused on the basis
of alleged confessional statement.
For the reasons stated above, we are in agreement with
the impugned judgment so far as it has taken the view that
the confessional statement in question cannot be acted upon
as the sole basis for conviction of the appellant.
However, the TADA Court has convicted the appellant
under Section 3(5) of the TADA which makes mere membership
of a banned organisation criminal. Although the appellant
has denied that he was a member of ULFA, which is a banned
organisation. Even assuming he was a member of ULFA it has
not been proved that he was an active member and not a mere
passive member.
In State of Kerala Vs. Raneef, 2011 (1) SCALE 8, we
have respectfully agreed with the U.S. Supreme Court
decision in Elfbrandt Vs. Russell, 384 U.S. 17 (1966)
which has rejected the doctrine of 'guilt by association'.
Mere membership of a banned organisation will not
incriminate a person unless he resorts to violence or
incites people to violence or does an act intended to create
disorder or disturbance of public peace by resort to
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violence (See : also the Constitution Bench judgment of this
Court in Kedar Nath Vs. State of Bihar, AIR 1962 SCC 955
para 26).
In Clarence Brandenburg Vs. State of Ohio, 395 U.S.
444 (1969) the U.S. Supreme Court went further and held that
mere “advocacy or teaching the duty, necessity, or
propriety” of violence as a means of accomplishing political
or industrial reform, or publishing or circulating or
displaying any book or paper containing such advocacy, or
justifying the commission of violent acts with intent to
exemplify, spread or advocate the propriety of the doctrines
of criminal syndicalism, or to voluntarily assemble with a
group formed “to teach or advocate the doctrines of criminal
syndicalism” is not per se illegal. It will become illegal
only if it incites to imminent lawless action. The statute
under challenge was hence held to be unconstitutional being
violative of the First and Fourteenth Amendments to the U.S.
Constitution.
In United States Vs. Eugene Frank Robel, 389 U.S.
258, the U.S. Supreme Court held that a member of a
communist organisation could not be regarded as doing an
unlawful act by merely obtaining employment in a defence
facility.
We respectfully agree with the above decisions, and are
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of the opinion that they apply to India too, as our
fundamental rights are similar to the Bill of Rights in the
U.S. Constitution.
In our opinion, Section 3(5) cannot be read literally
otherwise it will violate Articles 19 and 21 of the
Constitution. It has to be read in the light of our
observations made above. Hence, mere membership of a banned
organisation will not make a person a criminal unless he
resorts to violence or incites people to violence or creates
public disorder by violence or incitement to violence.
Hence, the conviction of the appellant under Section
3(5) of the TADA is also not sustainable.
The impugned judgment of the Designated Court, Assam at
Guwahati dated 28.03.2007 passed in TADA Sessions Case No.
13 of 1991 is set aside and the Appeal stands allowed.
By Order dated 29.10.2007 this Court had directed that
the appellant be released on bail on his furnishing adequate
security to the satisfaction of the trial court. Security
furnished by the appellant in pursuance of Order
dated 29.10.2007 shall stand discharged.
..........................J. (MARKANDEY KATJU)
..........................J. (GYAN SUDHA MISRA)
NEW DELHI; FEBRUARY 03, 2011. :5: