TaxTMI 
TaxTMI 
TaxTMI 
1994 (9) TMI 351
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....se as indicated in the order of reference and then send back these matters to the appropriate Division Bench for decision on merits in accordance with the answers we give to the questions of law. Accordingly, only those facts which are material for appreciating the questions of law which are being decided by us require mention in this order. The questions of law indicated in the said order of reference, to be decided by us, are three, namely- (1) The proper construction of Section 5 of the TADA Act indicating the ingredients of the offence punishable thereunder and the ambit of the defence available to a person accused of that offence ; (2) The proper construction of clause (bb) of sub- section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein; and (3) The proper construction and ambit of sub-section (8) of Section 20 of the TADA Act indicating the scope for bail thereunder. The only material facts for answering the above question are these: The petitioner is one of the several accused persons in case No. 1 of 1993 being trial in the Designate....
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....short, the petitioner's statement is that his possession of one AK-56 rifle with am-munition was in these circumstances for self defence on account of the serious threats to the members of his family, unrelated to any terrorist activity and, therefore, mere unauthorised possession of the weapons and ammunition by him in these circumstances cannot constitute an offence under Section 5 of the TADA Act. and has to be dealt with only under the Arms Act, 1959. The petitioner claims to be released on bail on this basis and places reliance on certain other facts pertaining to his conduct to support his assertion that his action in unconnected with any terrorist or disruptive activity. It is unnecessary here to refer to any other facts which may be material only for the purpose of considering the case of petitioner on the merits for grant of bail. The Designated Court has refused bail to the petitioner. These special leave petitions are against the order of the Designated Court, in substance, for grant of bail to the petitioner. On these facts, the aforesaid questions of law arise for determination by us. These questions arise in a large number of cases of persons accused of offences ....
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....bsp; xxxx xxxx Subsequent to the promulgation of the Ordinance, it was felt that the provisions need further strengthening in order to cope with the menace of terrorism. It is, therefore, proposed that persons who are in possession of certain arms and ammunition specified in the Arms Rules, 1962 of other explosive substances unauthorisedly in an area to be notified by the State Government, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and with fine. It is further proposed to provide that confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device shall be admissible in the trial of such person for an offence under the proposed legislation or any rules made thereunder. It is also proposed to provide that the Designated Court shall presume, unless the contrary is proved, that the accused had committed an offence where arms or explosives or an....
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....nition etc. specified therein, a punishable offence. Part II of the TADA Act relates to 'Punishments for, and measures for coping with, terrorist and disruptive activities' containing Sections 3 to 8, Section 3 gives the meaning assigned to the expression 'terrorist act' and also prescribes the punishment for the same. Similarly, Section 4 gives the meaning assigned to the expression 'disruptive activity' and prescribes the punishment fcr the same. Then comes Section 5 which says that a person in mere unauthorised possession of certain arms and ammunition etc. specified therein, in a 'notified area' is punishable "with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine'. This offence is more grave and the punishment more severe that the offence of mere unauthorised possession of the same arm and ammunition etc. provided in the Arms Act. Section 6 provides from enhanced penalties in certain cases. Section 8 provides for forfeiture of property of persons convicted of any offence punishable under this Act in . addition to the punishment awarded for the offenc....
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....1) Whoever with intent to overawe the Government as by law established or to strike terror in the people of any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different actions of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or other-wise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to who are abstain from doing any act, commits a terrorist act. (2) Whoever commits a terrorist act, shall - (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for Ufe and shall also be liable to fine ; (ii) in any other case, be punishable with imprisonment for a term....
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....contravenes any provision of, or any rule made under, the Arms Act, 1959 (54 of 1959), the Explosives Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908), or the Inflammable Substances Act, 1952 (20 of 1952), he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment for a term which shall not be less than five year but which may extend to imprisonment for life and shall also be liable o fine. (2) For the purpose of this section any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to the contravention of any provisions of any law, rule or order, shall be deemed to have contravened that provision, and the provisions of sub-section (1) shall, in relation to such person, have effect subject to the modification that the reference to "imprisonment for life" shall be construed as a reference to "imprisonment for ten years". xxxx &n....
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....n to believe that it is being made voluntarily. xxxx xxxx xxxx "PART-IV Miscellaneous 20. Modified application of certain provisions of the Code. - xxxx xxxx xxxx (4) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that - (a) the reference in sub-section (1) thereof to "Judicial Magistrate" shall be construed as a reference to "Judicial Magistrate or Executive Magistrate or Special Executive Magistrate."; (b) the references in sub-section (2) thereof to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "sixty days", and "one hundred and eighty days....
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....esume unless the contrary is proved, that the accused had committed such offence. (2) In a prosecution for an offence under sub-section (3) of Section 8, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that sub-section. xxxx xxxx xxxx 25. Overriding effect. - The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. We would now consider the question referred for decision. The true meaning and sweep of the Offence made punishable under Section 5 of the TADA Act is the main controversy for decision by us. The Constitution Bench in ....
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....II(a). xxxx Note : Parts and accessories of any arms or ammunition and charges for fire-arms and accessories for charges belong to the same category as the arms or ammunition." In the Arms Act, 1959, Section 24A inserted by Act No. 25 of 1983 w.e.f. 22.6.1983 contains provision relating to the 'Prohibition as to possession of notified arms in disturbed areas, etc' : and Section 25 prescribes the 'punishment for certain offences' which includes punishment to a person who acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of Section 7, in sub sections (1) and (LA) inserted by Act No. 25 of 1983 w.e.f. 22.6.1983 and Act No. 42 of 1988 w.e.f. 27.5.1988 respectively. Section 7 prohibits acquisition or possession etc. of prohibited arms or prohibited ammunition unless spe- cially authorized by the Central Government in this behalf. Clauses (h) and (i) of sub-section (1) of Section 2 of the Arms Act define 'prohibited ammunition' and prohibited arms' respectively. Section 11 of the Arms Act empowers the Central Government by notification in the Official Gazette to prohibit import or export of arms etc. wh....
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....loads the prosecution more heavily against the accused under the TADA Act. The TADA Act was enacted to make special provisions for the prevention of. and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto in the background of escalation of the terrorist and disruptive activities in the country. There is also material available for a reasonable belief that such activities are encouraged even by hostile foreign agencies which are assisting influx of lethal and hazardous weapons and substances into the country to promote escalation of these activities. The felt need of the tunes is, therefore, proper balancing of the interest of the vis-a-vis the rights of person accused of an offence under this Act. The rights of a person found in unauthorised possession of such a weapon or substance in this context, to prove his innocence of involvement in a terrorist of disruptive, is to be determined. The construction made of any provision of this Act must, therefore, be to promote the object of its enactment to enable machinery to deal effectively with persons involved in, and associated with, terrorist and disruptive activities while ....
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....if 'two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. See London & North Eastern Railway v. Berriman, [1946] 1 All ER 255 (HL). p. 270 ; Tolaram Relumal and Anr. v. The State of Bombay, [1955] 1 SCR 158 and State of Madhya Pradesh v. M/s Azad Bharat Finance Co. and Anr., [1966] Supp. SCR 473. Applying the settled rule of construction of penal statutes in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Ors., [1990] 4 SCC 76, a Division Bench of this Court speaking through one of us (Ahmadi, j.) construing certain provisions of the TAD A Act reiterated the principle thus : "The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional statements made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub-section (1) of Section 21. Provision is also made in regard to the i....
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....ssession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. (See Warner v. Metropolitan Police Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, (1950) AC 458. The next ingredient is that the possession of such an arm etc. should be 'unauthorised. That also presents no difficulty. The unauthorised pos- session in the context means without the authority of law. There is not disputed even in this area. The difficulty arises only hereafter. The unauthorised possession so understood of such an arm etc. 'in a notified area' constitutes the offence. The true import of this last ingredient is the area of real controversy. Section 2(l)(f) defines 'notified area' to mean such area as the State Government may, by notification in the Official Gazette, specify. There is no express indication in the Act of the manner in which the State Government is to exercise this power of issuing the notification. It is rightly urged by the learned ....
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....st have the opportunity in law of raising such a defence and proving its. The construction of Section 5 suggested by Shri Soli J. Sorabjee as amicus curiae, as well as by the National Human Rights Commission in its written submissions is the same. Shri Sibal further submitted that unless such an opportunity to the accused to prove his innocence of the graver offence punishable under Section 5 of the TADA Act is read into it, even though he may be punished for mere unauthorised possession of such arm and ammunition etc. under the Arms Act, the provisions would suffer from the vice of arbitrariness being unrelated to the object of its enactment. Several facets of the arguments of sides aim at supporting the rival contentions. Learned Additional Solicitor General contends that there is not such right available to the accused being tried for an offence punishable under Section 5 of the TADA Act while the others canvass for accepting the other view. The clue for resolution of his controversy lies in the significance and true import of the third ingredient of the offence, namely, a 'notified area'. We have already indicated the manner in, and the purpose for which, a specified ....
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....ct essential to constitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution. There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non-existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and its availability in a 'notified area' was innocuous. Whatever be the extent of burden on the accused to prove the non-existence of the third ingredient, as a matter of law he has such a right which flows from basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving non-existence of the facts necessary to constitute the third ingredient alone after his unauthorised....
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.... 3 were recovered from his possession, or where by the evidence of an expert the finger prints of the accused were found at the site of offence or where a confession has been made by the co-accused that the accused had committed the offence or where the accused had made a confession of the offence to any other person except a police officer............... (emphasis supplied ) The above extract gives a clear indication of the purpose for enacting Section 21 in the TADA Act creating the statutory presumption as to offences under Section 3 of the TADA Act, if it is proved that the arms or explosive or any other substances specified in Section 3 were recovered from the Possession of the accused any where, and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence. On proof of possession alone and not also its use, the statutory presumption which arises is of the lesser offence under Section 5 and that too when the possession is unauthorised within a notified area, which is more prone to terrorist or disruptive activities. The presumption arising of the commission of an offence under Section 3 by virtu....
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.... noticed that Section 5 is attracted only in case of unauthorised possession in a notified area, of arms and ammunition specified in columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962 which are prohibited arms, semi-automatic fire ares, smooth bore guns, bolt action or semi-automatic rifles of certain categories, revolvers and pistols, and their ammunition, or bombs, dynamite or other explosive substances, which are all inherently more dangerous weapons. None of these weapon is meant for, or kept, for ordinary use. The statutory presumption is also, therefore, reasonable. In Sambasivam v. Public Prosecutor, Federation of Malaya, (1950) AC 458, the accused was charged with carrying a fire-arm and being in possession of 10 rounds of ammunition for which he was convicted under reg. 4, sub-reg. 1, of the Emergency Regulations, 1948, which was as under : "4. - (I.) Any person who carries or who has in his possession or under his control - (a) any fire-arm, not being a fire-arm which he is duly licenced to carry or possess under any other written law for the time being in force; or (b) any ammunition or explosives without lawful authority therefor, ....
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....A decision of the Supreme Court of Canada in Louis Beaver v. Her Majesty The Queen, [1957] S.C.R. 531 is also useful in this context. The offence there related to possession of the forbidden narcotic substance. It was held that the element of knowledge formed part of the ingredient of possession when mere possession of the substance amounted to an offence. However, it was clearly stated that it would be within the power of Parliament to enact that mere physical possession without any guilty knowledge constituted the crime but such an intention would not be imputed to the Parliament unless the words of the statute were clear and admitted of no other interpretation. We have construed in Section 5 of the TADA Act, the ingredient of 'possession' to mean 'conscious possession'. This decision also supports the principle that mere conscious possession of a forbidden substance is sufficient to constitute an offence and the offence created by Section 5 in a statute like the TADA Act is not extraordinary or conceptually impermissible. Moreover, that is also the position in the general law, with difference only in the prescribed punishment. The construction we have made of Se....
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.... xxxx xxxx .........However, their Lordships were in agreement that if the linguistic construction of the State did not clearly indicate on whom the burden should lie the court should look to other considerations to determine the intention of Parliament, such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance, for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute. When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged........" (at pages 10 and 11) The decision of the U.S. Supreme Court in W.D.Manty v. State of Georgia, 73 L.Ed. 575 also supports the view that ordinarily in such a statute, the statutory presumption is to be treated as rebuttable. It is a settled ....
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.............unauthorisedly in a notified area'. After specifying the forbidden arms and ammunition, Sec- tion 5 proceeds to include in that category other substances by using the expression' or bombs, dynamite or the explosive substances'. It is clear that unauthorised possession in a notified area is forbidden of 'any arms and ammunition' which is specified 'or bombs or dynamite or other explosive substance'. The other forbidden substances being r.ead disjunctively, the only questions being read disjunctively, the only question is : Whether in this context the words 'arms and ammunition' in Section 5 should be read conjunctively? We do not think so. Schedule I to the Arms Rules specifies the categories of both arms and ammunition mentioned therein. This is what has led to use of the words 'arms and ammunition' in section 5 while referring to them as those specified in columns 2 and 3 of Category I or Category III(a) of Schedule I. The word 'and' has been used because Schedule I specified both arms and ammunition in columns 2 and 3 thereof. The words 'any arms and ammunition' in Section 5 mean any of the arms and ammunition ....
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....ve intent of not excluding the right of an accused to prove that he is not guilty of the graver offence under section 5 of the TADA Act and, therefore, he is entitled to be dealt with under the general law which provides a lesser punishment. The provision of a minimum sentence of five years' imprisonment for unauthorised possession of any of the specified arms etc. with the maximum punishment of life imprisonment under Section 5 of the TADA Act is by itself sufficient to infer such a legislative intent, more so, when such intent is also more reasonable. The practical considerations in prosecution for an offence punishable under Section 5 of the TADA Act affecting the burden of proof indicate that the intended use by the accused of such a weapon etc. of which he is in unauthorised possession within a notified area is known only to him and the prosecution would be unable most often to prove the same while the accused can easily prove his intention in this behalf. The practical considerations also support the view we have taken. In the view we have taken, it is unnecessary to consider the several arguments advanced at the hearing relating to the requirement of metis rea as an ing....
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.... control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent field. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb).In this view of the matter, it is immaterial whether the application for bail on ground of 'default' under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not grant an extension on the report of the public prosecutor made under clause (bb), the court shall release the accused on bail as it would be an indefeasible right of the accused to be so released. Even where the court grants an extension under clause (bb) but the charge sheet is not filed within the extended period, the court shall have no option but to relea....
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.... Shri Sibal submitted that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to confer on the accused an indefeasible right to be released on bail under this provision once the challan has been filed if the accused continues in custody. He stated unequivocally that on filing of the challan, such a right which accrued prior to filing of the challan has no significance and the question of grant of bail to an accused in custody on filing of the challan has to be considered and decided only with reference to the provisions relating to grant of bail applicable after filing of the challan, since Section 167 Cr. P.C. has relevance only to the period of investigation. Learned Additional Solicitor general, in reply, agreed entirety with the above submission of Shri Sibal and submitted that principle enunciated by then Division Bench in Hitendra Vishnu Thakur must be so read. However, the grievance of the learned Additional Solicitor General is that the direction for grant of bail by the Division Bench in Hitendra Vishnu Thakur,on the facts of that case, is not in consonance with such reading of that decision and indicates that the indefeasible right of the accused....
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....sion of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. The State of Punjab, [1952] SCR 395; Ram Narayan Singh v. The State of Delhi and Others, [1953] SCR 652 and A.K. Gopalan v. The Government of India, [1966] 2....
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.... in his defence is entitled to prove the non existence of a fact constituting any of these ingredients. As apart of his defence, he can prove by adducing evidence, the non-existence of facts constituting the third ingredient as indicated earlier to rebut the statutory presumption. The accused is entitled to prove by adducing evidence, that the purpose of his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishable only under the general law by virtue of Section 12 of the TADA Act and not under Section 5 of the TADA Act. (2)(a) Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section (4) of Section 20 of the TADA Act has to be understood in the Judgment of the Divi....