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.

:1:

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

:2:

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

:3:

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

:4:

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: