Rebuttable presumption in TADA possession cases and default bail limited until challan filing

Unauthorised conscious possession of specified arms or ammunition in a notified area under TADA was construed to raise a rebuttable presumption of terrorist or disruptive nexus, but the accused could rebut it by proving the possession was wholly unrelated to such activity; failing that, liability would fall only under the general law. The default-bail right under Section 20(4)(bb) was held to exist only until filing of the challan, after which ordinary bail provisions govern. The notice requirement for extension of investigation time was satisfied by producing the accused before the court and informing him that extension was being considered. No further clarification was issued on the settled bail conditions under Section 20(8).

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Issues: (i) Whether Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 requires the prosecution to prove conscious unauthorised possession in a notified area, and whether the accused may rebut the presumption by showing that the possession was unrelated to any terrorist or disruptive activity; (ii) whether the right to default bail under Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 survives after filing of the challan and what constitutes the notice required before extension of time for investigation; (iii) whether the conditions for bail under Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 require any further clarification.

Issue (i): Whether Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 requires the prosecution to prove conscious unauthorised possession in a notified area, and whether the accused may rebut the presumption by showing that the possession was unrelated to any terrorist or disruptive activity.

Analysis: Section 5 was construed as creating an offence consisting of conscious possession, unauthorised possession, and possession in a notified area. The notified-area requirement was treated as the basis for a statutory presumption that such possession was connected with terrorist or disruptive activity. The provision was read as penal in nature and therefore strictly, but also purposively so that persons not meant to be covered by the special enactment are not brought within its sweep. The accused was held entitled to rebut the presumption and prove that the possession was for a purpose wholly unrelated to terrorist or disruptive activity. If that defence succeeds, the act remains punishable only under the general law and not under Section 5.

Conclusion: The prosecution must prove conscious unauthorised possession in a notified area, and the accused may rebut the presumption by proving absence of any terrorist or disruptive nexus. The issue is decided in favour of the accused on the availability of such a defence.

Issue (ii): Whether the right to default bail under Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 survives after filing of the challan and what constitutes the notice required before extension of time for investigation.

Analysis: The proviso was held to confer an enforceable right only during the period of default and before filing of the challan. Once the challan is filed, custody is governed by the ordinary bail provisions and the default right stands extinguished if not earlier availed of. The notice requirement before extension was understood as production of the accused before the court and informing him that the question of extension is being considered; a separate written notice with reasons was not required.

Conclusion: The default-bail right under Section 20(4)(bb) exists only up to filing of the challan, and the notice requirement is satisfied by production of the accused before the court. The issue is answered partly in favour of the accused on the default-bail right and partly against him on any broader notice requirement.

Issue (iii): Whether the conditions for bail under Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 require any further clarification.

Analysis: The conditions for bail under Section 20(8) were treated as already settled by the Constitution Bench decision on the point. No fresh elaboration was found necessary.

Conclusion: No further clarification was issued on Section 20(8).

Final Conclusion: The decision settles the construction of Section 5 and clarifies the operation of default bail under Section 20(4)(bb), while leaving the bail conditions under Section 20(8) undisturbed.

Ratio Decidendi: Under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, unauthorised conscious possession of specified arms or ammunition in a notified area raises a rebuttable presumption of terrorist or disruptive nexus, and the accused may avoid conviction by disproving that nexus; the default-bail right under Section 20(4)(bb) survives only until filing of the challan.

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