GULAM MOHD. @ GULAL SHAIKH versus STATE OF GUJARAT

Citation: [2008] 15 S.C.R. 1039 · Decided: 11-11-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

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[2008] 15 S.C.R. 1039 
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GULAM MOHD. @ GULAL SHAIKH 
A 
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v. 
STATE OF GUJARAT 
(Criminal Appeal No.1770 of 2008) 
NOVEMBER 11, 2008 
B 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
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Code of Criminal Procedure, 1973 - s.439 - Prevention 
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of Terrorism Act, 2002 - s.49 - Bail - Grant of- Confession 
purportedly recorded under s.32 of POTA - Bail applications c 
under the Acts - Rejected by trial Court - High Court affirming 
same -
Correctness of - Held: Correct - When applicant 
was produced for confirmation of the so called confessional 
statement, there was no plea that the same was obtained 
under pressure - It was claimed that there was retraction -
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If in reality there was no confession, the question of any 
retraction did not arise. 
The applicant was facing trial for alleged commission 
of offence under Penal Code, Prevention of Terrorism 
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Act, 2002 (POTA) and Arms Act. A confessional statement 
was purportedly recorded u/s.32 ofPOTA. The applicant 
filed application uls.439 Cr.P.C. and s.49 of POTA, which 
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was dismissed by the Trial Court. High Court affirmed the 
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same. Hence the instant appeal. 
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Dismissing the appeal, the Court 
HELD: Two other factors need to be noted. When the 
appellant was produced for confirmation of the so called 
confessional statement there was no allegation that the 
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same was obtained under pressure. It is claimed that 
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there was retraction on 9.8.2003. If in reality there was no 
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confession, the question of any retraction does not arise. 
[Para 8] [1043-D-E] 
1039 
H 
1040 
SUPREME COURT REPORTS 
[2008] 15 S.C.R. 
A 
State (NCT of Delhi) v. Navjot Sandhu a/is Afsan Guru 
A.. 
B 
(2005) 11 sec 600, referred to. 
·Case Law R~ference: 
(2005) 11 sec· soo 
referred to 
para 9 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 1770 of2008. 
From the final Juagment and Order dated 21.2.2006-0f the 
High:Court of Gujarat at Ahmadabad in Criminal Appeal No. 
C 1704 of 2004. 
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Nima Ramakrishnan and M.A. Chinnasamy for the· 
Appellant. 
Hemantika· Wahi for the Respondent 
The Judgment of the Court was delivered by • · 
DR. ARIJIT PASAYAT, J. 1. Leave granted. 
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, 2. Ch'allenge in 'this appeal fs to the order passed. by a 
Division Bench of the Oufarat High Court dismis$ing the 
Criminal Appeal No.1704 of 2004. Challenge before the High 
Court was to· the order passed by learned· Specia1 Judge, 
POTA, Ahmedabad .in· Criminal· Mis'cellaneous Application 
No.2219 of 2004 irJ connection with I.GR. No.6 of2003 of DCB 
F Crime Police Station, Ahmedabad City (presently numbered as 
POTA Case N0.12. of2,003). 
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3. ·The background facts in a nutshell are as follows; 
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An application in terms of Section 439 of the Code of 
Criminal Procedure, 1973 (in ·Short 'Cr;P.C.') and Section 49 
of the Prevention of Terrorism Act, 2002 (in short 'POT A') was 
filed. The applicant is facing trial for alleged· commission of 
offences punishable under Sections 120-B, 121, 121A, 122; 
H 123 of the Indian Penal Code, 1860 (in short 'IPC') and 
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GULAM MOHD. @ GULAL SHAIKH v. STATE OF 
1041 
GUJARAT [DR. ARIJIT PASAYAT, J.] 
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Sections 3(1)(A)(B), 3(3), 4, 20, 21(2) B, 22(3)(A)(B) of POTA 
A 
and Sections 25 ( 1 )B, C, 27 and 29 of the Arms Act, 1950 (in 
short 'Arms Act'). According to the applicant, on 3.4.2003 five 
boys were picked up from a park of Ahmedabad City and on 
4.4.2003 first information report was lodged wherein 
commission of offences punishable under the POT A were e 
included. Case was registered as CR.No.6 of 2003. According 
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to the applicant he was picked up by the Crime Branch and 
was kept in illegal custody .. Certain news items were published 
in newspapers on 30.6.2003. It is pointed out that another co-
accused under trial in another case was not produced. The c 
counsel appearing for him made a statement before the Court 
that he was in illegal custody of Crime Branch. The name of 
that co-accused is Rafiq and same stand was taken. Notice 
was issued by the learned Additional Sessions Judge fixing the 
date 16.7.2003. The appellant was shown to have been 
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arrested in the present case on 15.7.2003. A confessional 
statement purported to have been recorded under Section 32 
of POTA on 8.8.2003. The appellant does not know Gujarati 
and, therefore, the question of making a confessional statement 
does not arise and he did not sign before the Deputy 
E 
.. Commissioner. Though he was produced 

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