'NIA Recorded Inadmissible Confessions In Anxiety To Wrap Up The Case': Kerala High Court While Acquitting Accused In Twin Blast Case

The Kerala High Court while acquitting the prime accused Thadiyantevida Nazeer and Shafas in the infamous Kozhikode 2006 twin bomb blast case observed that the National Investigating Agency (NIA) had failed to produce credible evidence.

A Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman also found that had it not been for the agency's hurry to wind up the investigation, there may have been more compelling evidence to find the accused guilty.

"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."

By the said judgment, the Judges had also declined the appeal filed by the National Investigation Agency (NIA) challenging the trial court's order acquitting two other accused in the case.

The Court also observed that the prosecution had failed to produce any concrete evidence to show that the accused individuals were involved in the preparation even the commission of the offences alleged against them: 

"There is no reliable evidence on the preparation or commission of the crime that would incriminate the accused beyond reasonable doubt. The approvers evidence fails miserably in the twin tests; that of inherent reliability and credibility as also on the aspect of corroboration; the latter of which we find to be absent even in a single material particular." 

The Court opened its judgment quoting Stephen's History of Criminal Law on the importance of collecting evidence the right way: 

"If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than go about in the sun hunting up evidence".

The primary evidence collected by the prosecution was the approver's testimony which the prosecution claimed to be corroborated on material aspects by the disclosures, the discoveries, the resultant identification and the call details.

However, upon examining the law on approver's evidence, the Court observed that though not absolutely necessary, it is always prudent to look for corroboration of the approver's testimony, before entering a conviction; if not on all material aspects of the case, at least enough to inspire the Court's confidence to accept that evidence.

Why the prosecution evidence was found lacking: 

• The threat calls allegedly made by the accused to the media have just been established to be from two numbers in two booths. Neither the identity of the caller nor even the location of the booths was proved. 
• The confessions, purportedly under Section 27 were recorded, with portions relating to the crime as such, offending Section 25 and 26 of the Evidence Act.
• The approver's evidence relied on heavily by the prosecution was found to be unreliable and uncorroborated.
• The disclosure was that gelatin was purchased from PW24's house. However, even after a thorough search, nothing could be obtained to substantiate this.
• Nazeer was not identified by PW25 & 26 who alleged to have seen him purchase the gelatin.
• The disclosure of one of the accused was that in a room of KL Arcade is where Nazeer kept the bombs in the said room before they were brought to Kozhikkode, but a search of the premises did not yield any incriminating material.
• The houses of all the accused were also searched, but nothing was discovered.
• The conspiracy as alleged by the prosecution has not been established.
• There is no recovery of any object leading to the discovery of a fact from any place to incriminate Nazeer. 

Therefore, the Division Bench came down on the investigators for their lackadaisical approach in gathering independent evidence:

"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 and 26 of the Evidence Act."

However, the Court also stated that the NIA's efforts in apprehending the accused were not to be belittled: 

"We do understand the inherent difficulty of an investigation, in a case taken over by the NIA, almost four years after the incident. The Investigating Officers were groping in the dark for almost four years, till the arrest of A3 in another blast case."

The Court also commented on the communal violence in the State: 

"Inexplicable violence as a retaliatory measure against establishments of State, based on religion and community, often questions the secular credentials of a society; particularly of this State which proudly proclaims itself to be the most literate in all of the country."

What is the Twin Blast case?

The blast which took place on March 3, 2006 at the Kozhikode Mofussil bus stand and the KSRTC stand, was a rare case where the accused informed the city collectorate and the media about the location of the bombs after planting them. Although it was initially investigated by the local police, the case was taken over by the NIA in 2009.

Since Nazeer was set to argue his own appeal before the court, he was transported from Bangalore Central Prison at Parappana Agrahara and produced before the court during the first hearing.

However, since a lawyer also appeared on behalf of Nazeer, a vakalath was signed immediately and he was sent back to prison. The Court also granted him the liberty to watch the proceedings online if he wished so.

Nazeer and Shafas, the first and fourth accused in the case, had filed an appeal seeking to quash the life sentence imposed on them by the trial court. They refuted the trial court's finding that they had committed offences under the Unlawful Activities (Prevention) Act (UAPA).

While the accused had moved the Court alleging that they were innocent, the NIA had also preferred an appeal aggrieved by the trial court's decision acquitting the third and ninth accused in the case, Abdul Halim and Abubaker Yusuf.

The NIA had filed a charge sheet in 2010 under sections of the UAPA, IPC and Explosive Substances Act. after taking over the investigation. According to the charge sheet, on the date of the incident, the local police received phone information from the media that two bombs had been planted at the said sites in the city.

The police were able to reach on time and evacuate people, minimising damage to life and property. Among the two injured in the blast at the Mofussil bus stand, one was a policeman who was going to check the suspicious bag containing the bomb when it exploded.

The blast was reportedly planned in protest against the denial of bail to some Muslim accused in the 2003 Marad Communal Riots case.

Case Title: Thadiyantevida Nazeer v. State of Kerala & connected matters

Citation: 2022 LiveLaw (Ker) 42

Click Here To Read/Download The Judgment