ORAL JUDGMENT :- This appeal by accused Nos. 2 and 3 takes exception to the Judgment and Order passed by the Special Judge under MCOCA Act, 1989 dated December 12th and 13th, 2000 in M.C.O.C. Special Case No.2 of 1999. The appellants along with one other accused Salim Mehmood Shaikh (Accused No. 1) were charge-sheeted and tried for offence punishable under section 307 read with section 120-B, Indian Penal Code and also under section 3 read with section 25, section 5 read with section 27 of the Arms Act and further under section 3(1)(ii), 3(2) and section 3(4) of the Maharashtra Control of Organised Crime Act, 1999. The incident in question had occurred on 19th March, 1999. Four Accused were involved in the commission of the offence. Ashphaq Ismail Khalpe (Accused No.4) however, died on 23rd March, 1999 in police encounter. The prosecution case was that all the accused indulged in unlawful activities as members of organised crime syndicate of Chhota Shakeel faction of Dawood Ibrahim Kaskar's organised crime syndicate/gang. It is alleged that in furtherance of criminal conspiracy hatched between the accused with the gang lords Chhota Shakeel as also Abu Salem Abdul Qayum Ansari, Accused No.1 to 3 along with Ashphaq Ismail Khalpe in pursuance of criminal conspiracy hatched between them and in furtherance of their common intention went at K. C. Road, Opp. Reclamation ground near Rang Sharda Hotel, Bandra (West), Mumbai on 19th March, 1999 at about 6 p.rn. and the accused No.1 Salim Mehmood Shaikh along with deceased accused Ashphaq Ismail Khalpe entered the ground with fire arms in their possession and fired shots at Ramesh Jagdish Sharma (P.W.11), also causing hurt to Sudhakar Shantaram Manjrekar (P.W.14). Prosecution case is that these accused Nos. 1 to 3 along with deceased Ashphaq Ismail Khalpe attempted to commit murder of Shri Ramesh Jagdish Sharma (P.W.11) and caused hurt to Sudhakar S. Manjarekar, Art Director (P.W.14). The trial Court on analysing the evidence on record, recorded finding of guilt against all the accused. The trial Court passed following operative order: "ORDER (i) Accused No. 1 Salim Mehmood Shaikh is found guilty for offences punishable under section 120-B read with section 307 further read with section 34, Indian Penal Code and is sentenced to suffer RI. for 10 years and to pay fine in the sum of Rs. 10,000/-. The trial Court passed following operative order: "ORDER (i) Accused No. 1 Salim Mehmood Shaikh is found guilty for offences punishable under section 120-B read with section 307 further read with section 34, Indian Penal Code and is sentenced to suffer RI. for 10 years and to pay fine in the sum of Rs. 10,000/-. In default of payment of fine he shall undergo further R.I. for 1 year. (ii) The accused No. 1 is also found guilty for offence punishable under section 3(1)(ii) of the M.C.O.C. Act, 1999 and is sentenced to suffer R.I. for 10 years and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo further R.I. for 2 years. (iii) The accused No. 1 is further found guilty for the offence punishable under section 3(2) of the M.C.O.C.Act, 1999 read with section 120-B, Indian Penal Code and is sentenced to suffer R.I. for 10 years and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo further R.I. for 2 years. (iv) The accused No. 1 however is not found guilty and is acquitted for offence punishable under section 3(4) of the M.C.O.C. Act, 1999. (v) The accused No.1 is further found guilty under section 324 read with section 34, Indian Penal Code for causing injury to Sudhakar Manjrekar (P.W.14) and is sentenced to suffer R.I. for 1 year and to pay fine in the sum of Rs. 1,000/-. In default of payment of fine he shall further undergo R.I. for 3 months. (vi) The accused No.1 is further found guilty under section 3 read with section 25(1B)(a) of the Arms Act and is sentenced to suffer R.I. for 3 years and to pay fine in the sum of Rs. 3,000/-. In default of payment of fine he shall undergo further R.I. for 6 months. (vii) The accused No.1 is also found guilty for offence punishable under section 5 read with section 27(1) of the Arms Act and is sentenced to suffer R.I. for 3 years and to pay fine in the sum of Rs. 3,000/-. In default of payment of fine he shall undergo further R.I. for 6 months. II. (vii) The accused No.1 is also found guilty for offence punishable under section 5 read with section 27(1) of the Arms Act and is sentenced to suffer R.I. for 3 years and to pay fine in the sum of Rs. 3,000/-. In default of payment of fine he shall undergo further R.I. for 6 months. II. (i) Accused No.2 Mohammed Iqbal Farooq Shaikh is found guilty for offences punishable under section l20-B, Indian Penal Code read with section 3(2) of the M.C.O.C. Act, 1999 and is sentenced to suffer R.I. for 5 years and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo further R.I. for 1 year and 3 months. (ii) Accused No. 2 is however acquitted of offence punishable under section 3(4) of the M.C.O.C. Act, 1999. No other offence is proved against him. III. (i) Accused No.3 Salim Aziz Shah is found guilty for offences punishable under section 120-B, Indian Penal Code read with section 3(2) of the M.C.O.C. Act, 1999 and is sentenced to suffer R.I. for 5 years and to pay fine in the sum of Rs. 5 lakhs. In default of payment of fine he shall undergo further R.I. for 1 year and 3 months. (ii) Accused No.3 is however acquitted of offence punishable under section 3(4) of the M.C.O.C. Act, 1999. No other offence is proved against him. IV. The substantive sentences of imprisonment imposed against accused No. 1 to run concurrently except sentence imposed in default of payment of fine. V. Set off be given to accused No. 1 to 3 for the period of imprisonment already undergone as undertrial prisoner. VI. The case shall remain on dormant file as against absconding and wanted accused (1) Dawood Ibrahim Kaskar, (2) Chhota Shakeel @ Shaikh Shakeel @ Babu Mohiddin Shaikh and (3) Abu Salem Abdul Qayum Ansari. The case against them to revive on application by the Public Prosecutor in case the aforesaid accused is brought to justice. Order regarding disposal of property (1) Article No. 11 pistol and article No. 12 colly. 7 cartridges including 2 empty cartridges as also article No. 8 two empty cartridges as listed in list of articles Ex. P-2 shall be according to law after the Appeal period is over or subject to decision in the appeal if any. (2) Article Nos. Order regarding disposal of property (1) Article No. 11 pistol and article No. 12 colly. 7 cartridges including 2 empty cartridges as also article No. 8 two empty cartridges as listed in list of articles Ex. P-2 shall be according to law after the Appeal period is over or subject to decision in the appeal if any. (2) Article Nos. 1 to 7, 9, 10, 15 and 16 are valueless and if remained unclaimed shall be destroyed after the appeal period is over or subject to the decision in the appeal if any. The accused Nos. 1 to 3 be called for collecting copy of this Judgment after it is transcribed i.e. on 21st December, 2000." 2. In this appeal we are concerned only with accused No.2 and 3 who are held guilty of offence under section 3(2) of MCOC Act read with Section 120B of Indian Penal Code only. Accused No.1 Salim Mehmood Shaikh had filed separate appeal being Appeal No. 108 of 2001, but the same has been dismissed for non-prosecution on 16th August, 2002. Accordingly, I am called upon to consider the case of only accused No. 2 and 3, who are the appellants in the present appeal. Mr. Nitin Sejpal, advocate appearing for the appellants, however, submits that he has been instructed to appear only for appellant No. 2/original accused No. 3 and according to him some other advocate would espouse the cause of appellant No. 1/accused No.2. However, when the matter was called out on 31st August, 2006, none appeared for the appellant No. 1. In the circumstances, with a view to proceed with the hearing of the appeal, which is pending since 2001, I requested Mr. Sejpal to address this Court to espouse the cause of appellant No. 1/accused No.2 as amicus curiae. He accepted that request, as there was no conflict of interest between the stand of appellants/accused No.2 and 3. 3. On hearing the rival submissions and going through the record of the case, it is seen that accused Nos. 1 and 2 have given confessional statement which has been used against him. Confessional statement of accused has been recorded by the authority (P.W.16) in terms of power under section 18 of the MCOC Act, which has been proved in evidence. In both these confessional statements role of concerned accused in the commission of the offence is spelt out. 1 and 2 have given confessional statement which has been used against him. Confessional statement of accused has been recorded by the authority (P.W.16) in terms of power under section 18 of the MCOC Act, which has been proved in evidence. In both these confessional statements role of concerned accused in the commission of the offence is spelt out. This is the principal evidence, which is used against the accused No.2 himself as well as accused No.3. So far as accused No.3 is concerned, prosecution additionally relies on the evidence of P.W.7 to corroborate the version given in the confessional statement of accused No.2. There is no other evidence relied by the prosecution to indicate the complicity of accused No.3 in the commission of the offence. Insofar as accused No.2 is concerned, there is one additional evidence of discovery of vehicle, used in the commission of the offence, at the instance of accused No.2, under section 27 of the Evidence Act. 4. According to the appellants, charge against the appellants for the offence for which they have been held guilty, cannot be sustained either in fact or in law. The appellants would contend that the confessional statement, which is pressed into service by the prosecution is of no avail. That piece of evidence will have to be discarded for the simple reason that it would not stand the mandatory requirement of provisions of law. According to the appellants, there is no legal evidence to indicate that confessional statements recorded by the competent authority P.W.16 has been so recorded after being fully satisfied that accused had given that statement voluntarily and in free and fair circumstances. In the first place it is contended that, there is no certification below the confessional statement, as is required by the provisions of subject Act; for which reason the said confessional statement cannot be looked into and will have to be discarded. It is then contended that, once confessional statement is discarded, then there is no other legal evidence against accused No.2 except the discovery of vehicle at his instance. That not being a substantive evidence to indicate the complicity of the accused No.2 in the commission of the offence, will be of no avail. It is then contended that insofar as accused No.3 is concerned, the only other evidence that can be taken into account is the version given by the P.W.7. That not being a substantive evidence to indicate the complicity of the accused No.2 in the commission of the offence, will be of no avail. It is then contended that insofar as accused No.3 is concerned, the only other evidence that can be taken into account is the version given by the P.W.7. Insofar as version of P.W.7 is concerned, that will have to be discarded being untrustworthy. This is so because the identification parade of the accused persons as held is vitiated. It is argued that P.W.7 had no occasion to see the accused person before the incident took place. Holding of valid identification parade was prerequisite for the prosecution to succeed. Insofar as test identification parade is concerned, it is submitted that the same is vitiated for the following reasons. Firstly, because there is unexplained delay. The prosecution has failed to explain the delay of about 65 days in holding of test identification parade from the date of incident. Incident in question occurred on 19th March, 1999. One of the accused was arrested on the spot. The appellants accused came to be arrested on 23rd March, 1999, whereas the test identification parade was held on 28th May, 1999. It is next contended that there is discrepancy in the date of holding of test identification parade as stated by the Special Executive Officer (P.W.13) and as spoken by the witness P.W.7. It is contended that such discrepancy in relation to the conduct of test identification parade and on considering overall evidence given by these witnesses, there can be no manner of doubt that the test identification parade was vitiated. It was then contended that there is no legal evidence on record to establish the fact that the Special Executive Officer (P.W.13) who conducted test identification parade had reassured himself by asking the concerned witnesses as to whether they had opportunity to see the accused before-hand or to see their photographs. It is then contended that panchas for preparing test identification panchanama of the three suspects were common. That raises doubt about the efficacy and appropriateness of the test identification parade as conducted. It is then contended that the age of dummies who were paraded along with accused persons were not similar to that of the accused person. Accused persons were of the age of 23 years and dummies were in the range between 25 to 40 years. That raises doubt about the efficacy and appropriateness of the test identification parade as conducted. It is then contended that the age of dummies who were paraded along with accused persons were not similar to that of the accused person. Accused persons were of the age of 23 years and dummies were in the range between 25 to 40 years. On the above basis it is contended that test identification parade is unreliable. It is argued that if the evidence in respect of test identification parade was to be discarded, in that case it would necessarily follow that there is no legal evidence to indicate the complicity of any of the accused in the commission of the alleged offence. In that case, even the evidence of P.W.7 who has allegedly seen the accused persons on the scene of offence or for that matter any other prosecution witnesses will be of no avail to the prosecution. Moreover, as there is no other substantive evidence to indicate the complicity of accused No.2 and 3 in the commission of the offence, the fact that vehicle allegedly used in the commission of the offence has been discovered at the instance of the appellant/accused No.2 cannot be the basis to proceed either against accused No.3 or for that matter accused No.2. On the above argument it is contended that this appeal ought to succeed and the impugned Judgment and Order passed by the trial Court be set aside. 5. Before dealing with the issues raised by the counsel during the hearing before this Court I shall broadly refer to the prosecution case with specific reference to the role of accused Nos.2 and 3 who are appellants before this Court. It is the prosecution case that (P.W.11) Shri Ramesh Jagdish Sharma, Film Producer was doing business in the name of company styled as Film Production Company, known as Triple R Movies. In February, 1999, he was engaged in preparing a set for his new film "Bagi" at Bandra Reclamation ground, K. C. Road, Bandra (West), Mumbai. While the work was in progress, P.W.11 along with Sudhakar Shantaram Manjrekar (P.W.14) Art Director (First Informant) and (P.W.5) Ms. Asha Menon (Production Controller) were discussing about the set of said film "Bagi" in the open ground near Rang Sharda Hotel known as Bandra Reclamation ground. At that time four persons came on two motor cycles. While the work was in progress, P.W.11 along with Sudhakar Shantaram Manjrekar (P.W.14) Art Director (First Informant) and (P.W.5) Ms. Asha Menon (Production Controller) were discussing about the set of said film "Bagi" in the open ground near Rang Sharda Hotel known as Bandra Reclamation ground. At that time four persons came on two motor cycles. Out of them two who were pillion riders got down from the motor cycles at the entrance of the ground and walked towards P.W.11. The other two persons who were driving motor cycles took turn and stopped near the bus stop. The two persons who were pillion riders entered inside the ground with fire arms and on reaching near Ramesh Jagdish Sharma (P.W.11) started abusing him. They alleged that he was taking cudgels with Dawood Bhai, for which he will have to die the death of a dog. It is stated that after abusing Ramesh Sharma (P.W.11) assailants fired shots causing him injury and also caused hurt to Sudhakar Manjarekar (P.W.14) who was present on the spot. The said two persons are stated to be accused No. I Salim Mehmood Shaikh and one Ashphaq Ismail Khalpe- who subsequently died in police encounter shortly on 23rd March, 1999. In other words, role attributed to the accused Nos. 2 and 3/appellants before this Court in the commission of the offence is that they were driving two motor cycles on which the assailants came and after they got down from the motor cycles they took turn and stopped their vehicle near bus stop waiting for the assailants. It is not necessary to burden this Judgment with the events that unfolded after the assailants fired at Ramesh Jagdish Sharma (P.W.11). Suffice it to observe that as one of the assailant/accused No.1 Salim Mehmood Shaikh who could not manage to reach up to the motor cycle, attempted to run away from the spot by boarding rickshaw. He was followed by traffic Constable Jitendra Mansingh Yadav (P.W.2) followed by Shri Mohite, Hawaldar (P.W.6), Shri Ugade, Constable and Shri Pawar, Constable (P.W.3), Choudhari, PSI. After he was nabbed while escaping from the scene of offence, Pistol with live cartridges were recovered from the accused No. 1. We are not concerned with the case against the accused No.1. As mentioned earlier the prosecution case against the appellants herein/accused Nos. After he was nabbed while escaping from the scene of offence, Pistol with live cartridges were recovered from the accused No. 1. We are not concerned with the case against the accused No.1. As mentioned earlier the prosecution case against the appellants herein/accused Nos. 2 and 3 is that they were riding respective motor cycles used in the commission of the offence. The accused No. 1 was the pillion rider on the motor cycle driven by appellant No. 1 and the said Ashaphaq Ismail Khalpe since deceased was the pillion rider on the motor cycle driven by appellant No.2. It is alleged that appellant No. 1/accused No. 2 is motor cycle and auto rickshaw mechanic working at garage, Kurla (East),Mumbai. He was close acquaintance of accused No. 3/appellant No.2 Salim Aziz Shah who came to him for repairs of auto rickshaw. It is alleged that on 18th March, 1999 accused No.3 Salim Shah had visited garage of Mohammed Iqbal Farooq Shaikh (accused No.2) at about 12.30 noon and offered him work for cash consideration and thereafter, introduced him to deceased assailant Ashphaq Khalpe residing at Vazir building. It is alleged that Ashphaq Khalpe was known as person working for Dawood Bhai and Chhota Shakeel who told appellant No. 1/accused No.2 that he would get good money if he allowed his vehicles to be used for some operation. It is alleged that appellant No. 1/accused No.2 agreed to do so. On 19th March, 1999 at about 11.30 a.m. accused No.3 came to the garage of accused No.2 and asked him to take out his motor cycle bearing No. MH-03-G-3818 which was lying in his garage for repair. The accused No. 2 acted upon the said instructions. Thereafter, both these accused organised to change the number plate of the said vehicle to MH-04-B5258. It is stated that accused No.3 assured to compensate the accused No.2 if the vehicle was damaged in any manner during the operation, to be carried out by them. Thereafter, both the accused Nos. 2 and 3 went to Vazir Building where the accused No.2 was introduced to Ashphaq Khalpe. Accused No.1 was also present in the said meeting. It is not necessary to refer to the details of the meeting except to observe that all the accused persons were waiting for the call from Dawood Bhai or Chhota Shakeel. 2 and 3 went to Vazir Building where the accused No.2 was introduced to Ashphaq Khalpe. Accused No.1 was also present in the said meeting. It is not necessary to refer to the details of the meeting except to observe that all the accused persons were waiting for the call from Dawood Bhai or Chhota Shakeel. At about 4 p.m. or around that time, Ashphaq received call purportedly from Chhota Shakeel telling him to shoot down Ramesh Jagdish Sharma (P.W.11) who was in Bandra at that time. On receiving this telephone-call, Ashphaq Khalpe took out three pistols, out of which, one was retained by him, another was given to Salim Shaikh and third pistol was given to Salim Shah, Accused No. 3/appellant No.2. Thereafter, all of them proceeded on two motor cycles. The motor cycles were driven by appellants/accused Nos. 2 and 3. As mentioned earlier, deceased Ashphaq Ismail Khalpe was the pillion rider on the motor cycle driven by appellant No. 2/accused No. 3 and Salim Shaikh/accused No. 1 was pillion rider on the motor cycle driven by the appellant No. 1/accused No.2. I have already adverted to the fact that on reaching near the ground the motor cycle stopped whereafter accused No. 1 and deceased Ashphaq Ismail Khalpe proceeded towards Ramesh Sharma (P.W.11), who was standing in the ground. The appellants who were driving the motor cycles took turn and stopped near the bus stop waiting for the return of the assailants after operation was completed. 6. Insofar as presence of appellants on the scene of offence as driving motor cycles has been established by the evidence ofP.W.7. P.W.7 claims that he was production manager in Triple R Movies since more than three years before the date of evidence given in the Court. He has stated that he was working with the company in 1999 also. At the relevant date i.e. 19th March, 1999 he came to work at 11 a.m. He has stated that Ramesh Sharma (P.W.11) also arrived at the set at around 2.30 p.m. He has then stated that at around 5.30 p.m. he along with Ramesh Sharma (P.W.11) and others were sitting and were discussing about the work. At the relevant date i.e. 19th March, 1999 he came to work at 11 a.m. He has stated that Ramesh Sharma (P.W.11) also arrived at the set at around 2.30 p.m. He has then stated that at around 5.30 p.m. he along with Ramesh Sharma (P.W.11) and others were sitting and were discussing about the work. Thereafter, he along with set boy had gone to chew a betel leaf and when they were standing at the footpath near the main gate of the Bandra Reclamation ground, he noticed two motor cycles coming from Bandra side. Those vehicles stopped in front of the gate. He has stated that four persons were seen riding those bikes. He then states that two persons who were pillion riders got down from the bikes and entered inside the ground. Two persons who were riding bike took turn and stopped near the bus stop. Insofar as involvement of present appellants/accused Nos. 2 and 3 are concerned, he has mentioned that they were seen driving those two bikes. He has given description of the clothes, age, height, complexion and built of the appellants. This witness has identified the appellants during the test identification parade. Besides this independent evidence, the prosecution has relied on the confessional statement of the accused Nos. 1 and 2 respectively recorded by P.W.16. In the confessional statement which are elaborate, the role of each of the accused in the commission of the offence is clearly spelt out. The prosecution has additionally relied on another piece of evidence to indicate the complicity of appellant No. 1/accused No.2. The Appellant No. 1/accused No.2 made disclosure regarding the vehicle which was used by him during the commission of the offence. He led the Investigating Officer and the panchas which led to the discovery of the said vehicle at the place specified by him. Essentially on the basis of the above material, the Court below has found the appellants/accused No. 2 and 3 guilty of the offence punishable under section 120B, Indian Penal Code read with section 3(2) of the Maharashtra Control of Organized Crime Act of being engaged in facilitating of commission of organised crime. The appellants/accused Nos.2 and 3 are acquitted of the offence punishable under section 3(4) of MCOCA and further held that no other offence was proved against that accused. In other words, the appellants/accused Nos. The appellants/accused Nos.2 and 3 are acquitted of the offence punishable under section 3(4) of MCOCA and further held that no other offence was proved against that accused. In other words, the appellants/accused Nos. 2 and 3 have been found to have facilitated the commission of organised crime and for which they were sentenced to suffer R.I. for five years and to pay fine of Rs. 5 Lakhs. In default of payment of fine to undergo further R.I. for one year and three months. 7. On considering the evidence on record with the assistance of the Counsel appearing for the parties and having regard to the submissions canvassed across the bar, two main issues will have to be considered by this Court. Firstly, whether the confessional statements of accused No.1 and Accused No.2 are admissible and sufficient to record finding of guilt against the accused as claimed by the prosecution or the same will have to be discarded, as argued by the defence. If the confessional statements were to be accepted, in that case, the same being substantive evidence would prove the guilt of accused No.2 and if it inspires confidence of the Court can also be used against the appellants No. 2/accused No.3. The second crucial question that will have to be addressed is whether the test identification parade held by Special Executive Officer (P.W.13) is vitiated, as contended by the defence. If this issue is answered in favour of the defence, it would necessarily follow that there is no legal evidence to indicate complicity of the appellants/accused Nos. 2 and 3 in the commission of the offence. On the other hand, if the test identification parade was to be accepted, in that case, evidence of P.W.7 will assume relevance who is the eye-witness to the role played by the appellants/accused Nos. 2 and 3 in the commission of the alleged crime. Indeed, there is one more piece of evidence that has been used against the accused No. 2 that of discovery of motor cycle at his instance. However, if the confessional statements of the accused as also the test identification parade of accused were to be discarded, in that case, the accused cannot be proceeded with for their involvement in the commission of the alleged offence merely because of the discovery of the motor cycle at his instance. 8. However, if the confessional statements of the accused as also the test identification parade of accused were to be discarded, in that case, the accused cannot be proceeded with for their involvement in the commission of the alleged offence merely because of the discovery of the motor cycle at his instance. 8. I shall first advert to the argument regarding the efficacy of the confessional statement of Accused No. 1 and 2 recorded by the Deputy Commissioner of Police (P.W.16). Diverse points were raised on behalf of the appellants with regard to this issue. However, the main argument which has impressed me and on which basis I am disposed to answer the issue in favour of the appellants is that, there is no certification by the DCP (P.W.16) below the confession about his personal satisfaction of the voluntary character of such confession. Looking at the subject confession statements, all that has been mentioned at the end of the voluntary confession is that, the noted confession was read out and the accused agreed with the version and as correct reproduction of his version given by him voluntarily. There is no certificate and memorandum recorded by P.W.16 certifying in writing "below the confessional statement" about "his personal satisfaction" of the voluntary character of the said confession. Even if liberal view of the document in question was to be taken all that can be seen is that the P.W.16 has put his signature at the end of the confession and his designation as well as· the date and time. That is not sufficient compliance of requirement of law. Counsel for the appellants has rightly relied on the decision of the Supreme Court in the case of Bharatbhai Alias Jimi Premchandbhai vs. State of Gujarat, reported in 2003 SCC (Cri) 93 to buttress the submission that in such a case the confessional statement will have to be discarded as invalid. The learned Public Prosecutor made unsuccessful attempt to distinguish this Judgment on the argument that the requirement specified under this Judgment was with reference to the provisions not only in the section 15 of the TADA Act but with specific reference in the form provided in Rule 15 of the TADA Rules. According to the learned Public Prosecutor, insofar as MCOC Act is concerned that came into force on 24th February, 1999. According to the learned Public Prosecutor, insofar as MCOC Act is concerned that came into force on 24th February, 1999. At the relevant time, when the confessional statement came to be recorded by the DCP (P.W.16), on 14th May, 1999 and 28th May, 1999 respectively, no rules were framed under the MCOC Act. Rules under the subject enactment however, have come into force with effect from 6th July, 1999. On this basis it was argued that the form given in the rules cannot be the basis to discard the confessional statement as invalid. Indeed, the Public Prosecutor may be right that the Rules under MCOC Act came into force posterior to recording of the confessional statements. However, what is overlooked by the Public Prosecutor is the mandate of section 18 of the MCOC Act. The stipulations in the MCOC Act are analogous to the provisions of T ADA Act, which have been considered by the Apex Court. Section 18 of the MCOC Act reads thus : 18. Certain confessions made to police officer to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (I of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator: Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him. (3) The police officer shall, before recording any confession under subsection (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same. (4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence. (5) The person from whom a confession has been recorded under subsection (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon." (emphasis supplied) On conjoint reading of sub-sections (1), (2) and (3) of this provision, it is amply clear that the competent authority is obliged to follow certain precautions before, while and after recording the confessional statement. The first and foremost requirement as per sub-section (1) is that the confession has to be made before the police officer not below the rank of Superintendent of Police, which confession has to be recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced. The proviso to sub-section (1) mandates that such confession of the co-accused who is tried together in the same case with the accused shall necessarily be of co-accused, abettor or conspirator charged and tried in the same case together with the accused. What is relevant for our purpose is the requirement of sub-section (2) and sub-section (3) of the section 18. On conjoint reading of these provisions, it is noticed that the precautions to be observed by the competent authority are at three different stages. The first is, before proceeding to record any confession. What is relevant for our purpose is the requirement of sub-section (2) and sub-section (3) of the section 18. On conjoint reading of these provisions, it is noticed that the precautions to be observed by the competent authority are at three different stages. The first is, before proceeding to record any confession. The second while confession is being recorded and the third is after recording voluntary confession. Insofar as the requirement to be observed preceding the recording of any confession-that is spelt out in the first part of the sub-section (3). The same provides that before recording any confession under sub-section (1), the Police Officer is obliged to explain to the person making it clear that he is not bound to make a confession and that, if he does so, the confession may be used as evidence against him. Even after putting the accused to such notice if he still volunteers to make statement, even in that case, the police officer is obliged to reassure himself and satisfy that the person was willing to confess voluntarily. It is only on reaching such satisfaction the police officer may proceed to record the confession. In the present case, it is not necessary to dwell upon this aspect. The second stage is, while recording of confession statement is in progress; as per sub-section (2), the competent authority has to reassure himself and be satisfied that the confession was being recorded in a free atmosphere. Besides, he has to record the same in the same language in which the person is examined and as narrated by him. In the present case, the Court below has answered this aspect in favour of the prosecution on the basis of the confessional statement which has been proved in evidence as also on detailed analysis of evidence of P.W.16, who was the competent authority to record such confession. The third stage with which we are concerned, as envisaged by the later part of sub-section (3), mandates that the competent authority "after recording" such voluntary confession is obliged to certify in writing "below the confession" about "his personal satisfaction" of the voluntary character of such confession, putting the date and time of the same. In my opinion, the form of the confessional statement provided in the MCOC Rules is mere re-statement of the requirements of section 18 as aforesaid. In my opinion, the form of the confessional statement provided in the MCOC Rules is mere re-statement of the requirements of section 18 as aforesaid. Even if it is accepted that MCOC rules were not in force at the relevant time, from the mandate of section 18 itself, it is more than certain that the competent authority P.W.16, after recording the voluntary confession of accused was obliged to certify in writing "below the confession" about "his personal satisfaction" of the voluntary character of such confession, putting the date and time of the same. P.W.16 in his cross-examination in paragraph-14 has admitted that the endorsement occurring in the confessional statement made by him is to show that the contents were read over and explained to the accused and that the contents were correct. In paragraph-I5 he has further admitted that the last note as appearing at the end of statement cannot be called as certificate. The satisfaction of the voluntary character of the confession recorded before commencement of recording of confession is compliance of the requirement of the first stage which is referred to in the first part of sub-section (3). Recording of the fact that the person was questioned about his willingness to make confession voluntarily before commencement of confession, does not do away with the requirement of certification in writing "below the confession" about "the personal satisfaction" of the competent authority of the voluntary character of confession, putting the date and time of the same. That is an independent requirement, which, indeed, is mandatory. In the present case, it is common ground- as is fairly accepted by the Public Prosecutor-that no certificate in writing below the confession has been noted by the competent authority after recording of the confession as was required by the later part of the sub-section (3). If it is so, case on hand will be covered by the principle expounded by the Apex Court in the case of Bharatbhai (supra). In that case, the Supreme Court has adverted to the decision of the Apex Court in Kartar Singh's case which considered constitutional validity of the provisions of TADA Act. If it is so, case on hand will be covered by the principle expounded by the Apex Court in the case of Bharatbhai (supra). In that case, the Supreme Court has adverted to the decision of the Apex Court in Kartar Singh's case which considered constitutional validity of the provisions of TADA Act. Reference is then made to the decision of Privy Council in Nazir Ahmed vs. King Emperor reported in AIR 1936 PC 253, which has taken the view that when power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. This exposition applies with full force to the case on hand. Reference is then made to the decision in the case of S. N. Dube vs. N. B. Bhoir reported in (2000) 2 SCC 254 , particularly paragraph-31 thereof, which has dealt with the necessity of compliance with the requirement of the Act and rules regarding recording of confession by the competent authority as per the provisions of TADA Act. Indeed, in that Judgment the Apex Court has noted that written certificate and making the memorandum are made mandatory and left to be proved by oral evidence alone. It is further observed that the requirement of the rule is preparation of contemporaneous record regarding the nature of recording confession in the presence of maker at same time. The Apex Court in Dube' s case proceeded to hold that departure from the form or the words can adversely affect the object of the provision or the person making the confession so long as the Court is able to conclude that the requirements have been substantially complied with. In that case it was held that the trial Court committed error of law in taking the view that because the certificates and memorandums are not in the same form and words they must be regarded as inadmissible. However, in the case of Bharatbhai (supra), the Apex Court observed that the prosecution witness (P.W.I8) had admitted that no certificate and memorandum was made and appended at the end of confession. In this backdrop in paragraph-38 the Court went on to observe that the necessity of certificate and memorandum being contemporaneous record, would be required to support deposition in the Court. In this backdrop in paragraph-38 the Court went on to observe that the necessity of certificate and memorandum being contemporaneous record, would be required to support deposition in the Court. If the recording officer without contemporaneous record is allowed to depose later after a lapse of several years in Court, it would be too hazardous to rely on such testimony, as, ordinarily, an officer is likely to depose in Court what is left out to be recorded in documents as per mandatory provisions of the Act and the Rules, once he knows that he has made a vital omission. It is then observed that if the contemporaneous record shows that in substance though not in form, the requirements of the Rule were fulfilled, the defect of form can be cured by oral deposition made, may be after many years, on the basis of the contemporaneous record. In paragraph-39 in the case of Bharatbhai (supra), the Supreme Court observed ·that the making of certificate and memorandum is not an empty formality of the Rule. It is required to be made at the end of the confession. The officer certifies the manner in which the statement was given by the accused and was recorded. The satisfaction is to be noted as per Rule 15 (3) (b) of the concerned Rules. The satisfaction to be recorded by the officer has substantial relevance on the aspect of voluntary nature of confession, which is the heart of confession for it being made the basis of conviction. In paragraph-40 of this Judgment, the Apex Court has referred to another decision in the case of Chandran vs. State of T. N. reported in (1978) 4 SCC 90 , in which the Magistrate had omitted to certify at the foot of the record that he believed that the confession was voluntarily made. That omission was held to be fatal. Reference is also made to other decision in the later part of this Judgment. Suffice it to advert to the conclusion noted by the Apex Court in paragraph-46 of the Judgment, which reads thus: "46.In view of the aforesaid discussion, our conclusions are as follows: A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory. B. The language of the certificate and the memorandum is not mandatory . Suffice it to advert to the conclusion noted by the Apex Court in paragraph-46 of the Judgment, which reads thus: "46.In view of the aforesaid discussion, our conclusions are as follows: A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory. B. The language of the certificate and the memorandum is not mandatory . C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance with what is required to be contained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such contemporaneous record. D. In the absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer." 9. In the present case, admittedly there is no certificate and memorandum prepared or noted at the end of the confession by the competent authority P.W.16, which is one of the mandatory requirement of section 18 of MCOC Act Neither the prosecution has relied on any contemporaneous record to substantiate that substantial compliance was done by P.W.16 of the mandatory requirements after recording of confession was completed. Applying the principle expounded by the Apex Court in the above said decisions, I have no hesitation in accepting the argument of the appellants that confession statements as recorded by P.W. 16 will be of no avail. The same will have to be discarded. Once the confessional statements are discarded, the only other evidence that remains against the accused No. 2 is discovery of motor cycle which was allegedly used in the commission of the alleged crime. That evidence alone cannot be the basis to proceed against the accused No.2. That is not a substantive piece of evidence to indicate the complicity of the accused No.2 in the commission of the crime. For, it is only discovery of vehicle allegedly used in the commission of crime in terms of section 27 of the Evidence Act. No other fact can be inferred to proceed against the accused No.2. 10. Insofar as case against the accused No. 3 is concerned, that is founded on the confession statement of the accused which I have already held cannot be looked into. The only other substantive evidence against the accused No.3 is the evidence of P.W.7. He has spoken about the involvement of the accused in the commission of the alleged crime. 10. Insofar as case against the accused No. 3 is concerned, that is founded on the confession statement of the accused which I have already held cannot be looked into. The only other substantive evidence against the accused No.3 is the evidence of P.W.7. He has spoken about the involvement of the accused in the commission of the alleged crime. The trial Court has accepted the version of P.W.7 against the appellants as truthful. Ordinarily, this Court would confirm the view taken by the trial Court on the analysis of evidence of P.W.7. However, the prosecution should fail in spite of this evidence, as I find merits in the submission canvassed on behalf of the appellants/accused No. 2 and 3 that the test identification parade in which P.W.7 has identified the appellants/accused No.2 and 3 will have to be discarded. The argument for discarding the test identification parade was for different reasons. However, I am impressed with the grievance made by the appellants that the test identification parade will have to be ignored atleast for two strong circumstances demonstrated from the record. Firstly, there is inordinate and unexplained delay in holding of the test identification parade, which is fatal to the prosecution case. Secondly, it has been established from the record that the Special Executive Officer (P.W.13), who had conducted test identification parade failed to ask the witnesses before whom the suspects were paraded as to whether they had opportunity to see the accused in the earlier point of time or they had opportunity to see photograph of the concerned accused before hand. It is submitted that in terms of clause (g) of sub-rule (2) of Rule 16 in the High Court Criminal Manual, it was obligatory on the part of Special Executive Officer (P.W.13) to reassure himself that the witnesses were prevented from seeing the suspect before being paraded with other persons; and witnesses who have previously seen photograph or description of the suspect should not be led in identifying the suspect by reason of their recollection of the photograph or description, as for instance by being shown the photograph or description, before the parade. As mentioned earlier, I am not burdening the Judgment with the other issues raised on behalf of the appellants regarding the appropriateness of the test identification parade as held. 11. First aspect is one of inordinate and unexplained delay in holding test identification parade. As mentioned earlier, I am not burdening the Judgment with the other issues raised on behalf of the appellants regarding the appropriateness of the test identification parade as held. 11. First aspect is one of inordinate and unexplained delay in holding test identification parade. It is not in dispute that the incident in question occurred on 19th March, 1999. Insofar as Appellant No. l/accused No.2 is concerned, he came to be arrested on 23rd March, 1999, whereas the appellant No. 2/accused No.3 came to be arrested on 22nd March, 1999. The test identification parade however, is held on 14th May, 1999 and 28th May, 1999. According to the prosecution, witness P.W.7 identified the appellants/accused No.2 and 3 in the test identification parade. The said witness however, gave different date on which test identification parade was attended by him in jail. That version given by the P.W.7 will have to be ignored. This is so because the prosecution case is very specific that the test identification parade was held on 14th May, 1999 and 28th May, 1999. This is spoken by Special Executive Officer (P.W.13) as well as Investigating Officer (P. W .17), which version is supported by the documentary evidence. The fact remains that the test identification parade came to be held almost around two months from the date of incident and during which period appellants were in custody. For considering grievance regarding inordinate and unexplained delay, evidence of P.W.17 will have to be considered. 12. In the cross-examination, in paragraph-8 P.W.17 has stated that on 3rd May, 1999 permission was taken from 9th Metropolitan Magistrate, Bandra to hold identification parade in Arthur Road Jail and permission was granted on that date. Thereafter, the jail authorities were directed to arrange test identification parade. He has then stated that because main witnesses Ramesh Jagdish Sharma and Asha Menon, Rodrigues and Manjrekar were not available earlier for test identification parade, delay had occurred to hold test identification parade. He has then stated that he requested API Javkar to address letter to Mr. Inamulla Shaikh, SEO (P.W.13) to hold test identification parade. On the basis of this request, test identification parade was held on 14th May, 1999 and 28th May, 1999. In other words, it is stated that prior to 3rd May, 1999, witnesses were not available for test identification parade. Inamulla Shaikh, SEO (P.W.13) to hold test identification parade. On the basis of this request, test identification parade was held on 14th May, 1999 and 28th May, 1999. In other words, it is stated that prior to 3rd May, 1999, witnesses were not available for test identification parade. In the cross-examination in paragraph-20, suggestion is put to this witness that test identification parade was delayed purposefully to give opportunity to witnesses to see the accused, which suggestion has however been denied. What is relevant to note is that this witness P.W.17 has admitted that except his words, he has no evidence (documentary) to show that witnesses were not available until 3rd May, 1999. Suffice it to observe that the fact that delay in holding test identification parade was the result of non-availability of witnesses is not supported by any record maintained by the Investigating Officer. I am in agreement with the grievance made on behalf of the appellants that the trial Court has not addressed itself to this crucial aspect of the matter. The material on record thus creates doubt about the efficacy of the test identification parade conducted in the present case. The incident in question took place on 19th March, 1999. The Appellants were arrested soon thereafter in March, 1999, but the test identification parade is held almost around two months thereafter on 14th May, 1999 and 28th May, 1999. The concerned accused were in custody during this period. Only recently in the cases decided by me on August 22,2006 being Criminal Appeal No.3 of 2002 and Criminal Appeal No. 4 of 2002 in the case of Vijay Dadasaheb Bhosle and anr. vs. State of Maharashtra and Raosaheb Manikrao Thakare and ors. vs. State of Maharashtra respectively, I have dealt with this aspect of the matter to answer the issue against the prosecution. That view is supported by the exposition of the Apex Court in the case of Subhash and Shiv Shankar vs. State of U.P. reported in AIR 1987 SC 1222 . In other words, the appellants would succeed on the argument that the test identification parade conducted in the present case be discarded as there was inordinate and unexplained delay, which was fatal to the prosecution case. 13. In other words, the appellants would succeed on the argument that the test identification parade conducted in the present case be discarded as there was inordinate and unexplained delay, which was fatal to the prosecution case. 13. Insofar as second aspect with regard to the efficacy of the test identification parade that the Special Executive Officer (P.W.13) did not question the witness who participated in the parade as to whether they had opportunity to see accused or their photographs before hand. The procedure for holding identification parade is provided for in the criminal manual. Rule 16(2)(g) reads thus: "16(2)(g). The witnesses should be prevented from seeing the suspect before he is paraded with other persons, and witnesses who have previously seen a photograph or description of the suspect should not be led in identifying the suspect by reason of their recollection of the photograph or description, as for instance by being shown the photograph or description, before the parade." 14. To consider this aspect, we will have to turn to evidence of Special Executive Officer (P.W.B). In the cross-examination in paragraph-20, this witness states that he has read the booklet issued by the Government of Maharashtra to Special Executive Officer for guidance to hold test identification parade. He however, admits that he does not know about the High Court Criminal Manual. Relying on this admission it was argued that this witness was not even familiar with the requirements stated in the High Court Criminal Manual. This argument however, overlooks that the booklet issued by the Government of Maharashtra is a comprehensive document providing sufficient guidance to the Special Executive Officer to hold test identification parade. I am not dwelling upon other matters which were argued with reference to the version given by the P.W.B. What is relevant for our purpose is the statement made by the P.W.B in the Cross-examination in paragraph 21. He has stated thus: "According to me the fact that I had asked witness as to whether police had shown suspect to witness or whether police had shown photograph of the suspects to the witness has remained to be mentioned in T. I. Parade memorandum." In other words, this witness has admitted that the essential enquiry to ensure that the test identification parade was free and fair in all respects was not adhered to in the present case. If it is so, such test identification parade will be of no avail and the accused though identified in such parade will have to be given benefit of doubt. On this finding, the appellants would succeed on the argument that the test identification parade as conducted in the present case will have to be discarded. If so, the version given by P.W.7 will be of no consequence as the complicity of the appellants/accused Nos.2 and 3 in the commission of the offence has not been established by the prosecution beyond reasonable doubt. 15. Accordingly, the appellants ought to succeed as they will be entitled to benefit of doubt. In other words, the prosecution has not proved beyond reasonable doubt the involvement of the appellants in the commission of the alleged crime. 16. Hence, this appeal is allowed. The impugned Judgment and order is set aside. The appellants are acquitted of the charge, for which they were found guilty by the trial Court. The appellants be set at liberty, unless required to undergo sentence in any other offence. Ordered accordingly. 17. The Court records word of appreciation for the able assistance given by Mr. Sejpal, counsel for the appellants, who appeared as amicus curiae to espouse cause of the appellant No. 1. Ordered accordingly.