TaxTMI 
TaxTMI 
1994 (9) TMI 351
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the case 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 De....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f his father. In 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 acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 any other substances specified in Section 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 mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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 offence. This Section also provides for forfeiture of property of certain other persons accused of any offence under this Act. Part III containing .Section 9 to 19 relates to constitution of 'Designated Courts....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 which shall not be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. (4) Whoever harbours or conceals, or attempts to harbour or conceal, any terrorist shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for Ufe and shall also be liable to fine. (5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist act, shall be punishable with imprisonment for a terms which shall not be less than five years but which may extend to imprisonment for Ufe and shall also....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xxx xxxx "PART-III Designated Courts xxxx xxxx xxxx 12. Power of Designated Court with respect to other offences. (1) When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or any rule made thereunder or any other law, the Designated Court may convict such person of such other offence and pass any sentence authorised by this Act or such rule, as the case may be, such other law, for the punishment thereof. xxxx xxxx xxxx 15. Certain confession made to police officers to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a 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 like cassettes, tapes or sound tracks from out of which sounds o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ody, be released on bail or on his own ( bond unless - (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (9) The limitations on granting of bail specified in sub-section (8) are in addition the limitations under the Code or any other law for the time being in force on granting of bail. 21. Presumption as to offences under Section 3. - (1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved - (a) that the arms or explosive or any other substances specified in Section 3 were recovered from the possession of the accused there is reason to believe that such arms or explosive or other substances of a similar nature, were used in the commission of such offence : or (b) that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tification in the Official Gazette, specify to be prohibited tion. I(b) Semi-automatic fire-arms, other than these included in categories I (c) and III(a); smooth bore guns have barrel of less than 20" in length. Ammunition for arms of category I (b). I(c) Bolt action or semi-automatic rifles of 303 or 7.62 mm. bore or any other bore which can chamber and fire service ammunition of .303 or 7.62 mm. calibre; muskets of .410 bore or any other bore which can fire .410 musket ammunition; pistols, revolvers, or carbines of any bore which can chamber an fire .380 or .455 rimmed cartridges or service 9 mm. or.45 rimless cartridges. Ammunition for fire-arms of category l(c). I(d) Accessories for any fire-arms designed or adapted to diminish the noise of flash caused by the firing thereof. XXX XXX XXX III. Fire-arms other than those in categories I, II and IV, namely :- Ammunition for fire-arms other than those in categories I, II and IV namely :- III(a) Revolvers and pistols Ammunition for fire-arms of category III(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 amm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any of the specified arms and ammunition etc. (ii) unauthorisedly, (iii) in a notified area. If these ingredients of the offence are proved, then the accused shall, notwithstanding anything contained in any other law for the time being in force, be 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. Admittedly, this punishment prescribing a minimum sentence of five years imprisonment for unauthorised possession of any of the specified arms etc. with the maximum extending to life imprisonment, is more severe as compared to the punishment for the corresponding offence under the Arms Act. In addition to it, the other provisions of the TADA Act which include admissibility of some evidence against the accused which is in admissible under the general law coupled with a longer period available for completing the investigation enabling longer custody of the accused and the overall more stringent provisions of the TADA Act 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 copi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble machinery at a high level. It is reported that in some States, after the decision of this Court in Kartar Singh, his powered committees have been constituted for screening all such cases. It is hoped that this action will be taken in all the States throughout the country. Persons aware of instances of abuse, including the National Human Rights Commission, can assist by reporting such instances with particulars to that machinery for prompt and effective cure. However, that is no reason, in law, to doubt its constitutionality or to alter the proper construction when there is a felt need by the Parliament for enacting such a law to scope with, and prevent terrorist and disruptive activities threatening the unity and integrity of the country. The settled rule of construction of penal provisions is, that 'if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction and if there are two reasonable constructions, we must give the more lenient one'; and 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nguage of the statute are not roped in by stretching the language of the law..........." (at pages 85-86) With respect, we fully concur with the above perception for construing the provisions of the TADA Act. It is with this perspective we must proceed to spell out the ingredients of the offence created by section 5 of the TADA Act and the extent of the right of the accused to defend himself of that charge. We have already indicated the ingredients of the offence punishable under Section 5 of the TADA Act. The meaning of the first ingredient of "possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntion that a conviction under Section 5 of the TADA Act must follow on proof by the prosecution of conscious 'possession', 'unauthorisedly', of any of the specified arms and ammunition etc. in a 'notified area'. We think the submission of the learned Additional Solicitor General that the State Government's power to notify an area under Section 2(l)(f) must have relation to curbing terrorist and disruptive activities in the notified area is well founded for otherwise the State Government's power would be unfettered and unguided which would render Section 5 vulnerable. Shri Kapil Sibal, learned counsel for the petitioner submitted that the unauthorised conscious possession of any such specified arms and ammuni- tion etc. in a 'notified area' may not necessarily be related to, or associated with, a terrorist or disruptive activity and it may be possible for the accused to show that the object even of the unauthorised possession was different, for example, self-defence. He submits that the accused must 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act. This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession with this awareness, within a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption. The position which emerges is this. For constituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved 'unauthorised' 'conscious possession' of any of the specified arms ammuni- tion etc. in a 'notified area' by the accused, the conviction would follow on the strength of the presumption unless the accused proved the non- existence of a fact 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shment as compared to the corresponding offence under the general kw. This is because of the greater propensity of misuse of such anms and ammunition etc. for the terrorist of disruptive act within notified area. If the assumed propensity of such use is negatived by the accused, the offence gets reduced to one under the general kw and is punishable only thereunder. In such a situation, the accused is punished in the same manner as any other person found to be in unauthorised possession of any such arms and ammunition etc. outside a notified area. The presumption in law is of the greater and natural danger arising from its unauthorised possession within a notified area more prone to terrorist or disruptive activities. The Statement of Objects and Reasons for enacting the TADA Act clearly states as under : "..................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 any other substances specified in Section 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Section 5 is less serious that than under Section 3 of the Act. This construction is also preferable because the statute is penal in nature. The nature and extent of burden on the accused to rebut the statutory presumption under Section 5 is the same as in case of the presumption arising by virtue of Section 21 of an offence under Section 3 of the Act. It is clear that the statutory presumption so read into Section 5 is in consonance with the scheme of the statute and section 5 read in the context makes the statutory presumption implicit in it. The clear words in Section 21 that the 'Designated Court shall presume, unless the contrary is proved' is an unambiguous expression that the presumption thereunder is a rebuttable presumption. The language in Section 21 of the TADA Act has to be contrasted with the Section 112 of the Indian Evidence Act, 1972 which shows that the presumption under section 112 of the Indian Evidence Act is irrebuttable whereas the presumption under Section 21 of the TADA Act is rebuttable. It may here be noticed that Section 5 is attracted only in case of unauthorised possession in a notified area, of arms and ammunition specified in columns 2 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tute an offence under this provision. But the regulation says nothing of any special intent, and their Lordships are unable to find any ground on which such an intent should, as a matter of implication, be regarded as an claimant of the offence. The Emergency Regulations form a drastic code designated to meet a state of grave disorder and their Lordships see no reason to suppose that reg.4, sub-reg. I, was not intended to strike at the carrying of firearms simpliciter, if engaged in knowingly and without lawful authority." (at pages 469-70) (emphasis supplied) The mental element of knowledge as requirement of the ingredient 'carry or possess' was read into this provision but the requirement of any special intent as a matter of implication as an element of the offence was negatived. That was the construction made of a provision similar to Section 5 of the TADA Act where death penalty was provided for the offence in similar legislation. On principle, there is no requirement of reading anything more than the rebuttable presumption into Section 5 of the TADA Act indicated by us. A decision of the Supreme Court of Canada in Louis Beaver v. Her Majesty The Queen, [1957] S.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant if the statute specifically so provided, that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly and that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely a burden that has to be discharged on the balance of probabilities. The real difficulty in these case lies in determining on whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. xxxx 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cution to prove anything more than what we have indicated. We may deal with one more aspect pertaining to the construction of Section 5 of the TADA Act to which reference was made placing reliance on the decision in Paras Ram v. State of Haryana, [1992] 2 SCC 662, to which one of us (J.S. Verma, J) was a party. Correctness of that decision has been doubted by the learned Additional Solicitor General. That decision holds that the words 'arms ammunition' in Section 5 should be read conjunctively and so read, the conclusion is that a person in possession of only both, a fire-arm and the ammunition therefore, is punishable under Section 5 and not one who has either the firm-arm or the ammuni-tion alone. Section 5 applies where 'any person is in possession of any arms and ammunition specified in column 2 and 3 of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, or ..........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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ists and their associates or even those reasonably suspected of such association. A purposive construction promoting the object of the enactment but not extending its sweep beyond the frontiers within which it was intended to operate must be adopted keeping in view that a construction which exempts a person from its operation must be preferred to the one includes him in it, in view of the penal nature of the statute. The construction we have made of Section 5 of the TADA Act which give an opportunity to the accused to rebut the presumption arising against him of the commission of an offence by mere unauthorised possession of any such arms etc. within a notified area is manifest from the Statement of Objects and Reasons. This is in consonance with the basic principle of criminal jurisprudence and the basic right of an accused generally recognised. We must attribute to the Parliament the legislative 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&....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default complete the investigation within the tune allowed. In Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors, JT (1994) 4 SC 255 = [1994] 4 SCC 602, the conclusion was summarised, as under : - "In conclusion, we may (even at the cost of repetition) say that an accused person seeking bail under section 20(4) has to make an application to the court for grant of bail on grounds of the 'default' of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e by the Public Prosecutor and, considered by the court, to enable such a decision being made in accordance with the requirements of Section 167 Cr. P.C., is the only requirement of notice to be read in the decision of the Division Bench in Hitendra Vishnu Thakur. The Grievance of the learned counsel was, that quite often the accused was not even produced before the court at the time of consideration by the court of the prayer of the public prosecutor for extension of the period. On the other aspect, Shri Kapil Sibal conceded that the indefeasible right for grant of bail on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Section 20(4) (bb) as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. 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 unequivoc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrud to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refore, there is no occasion for a fresh consideration of that matter. The pronouncement of the Constitution Bench as extracted above is clear and does not require any further elucidation by us, beside it being binding on us. CONCLUSIONS As a result of the above discussion, our answers to the three question of law referred for our decision are as under : - (1) In the prosecution for an offense punishable under Section 5 of the TADA Act, the prosecution is required to prove that the accused was in conscious 'possession', 'unauthorisedly', in a 'a notified area' of any arms and ammunition specified in columns 2 and 3 of Category I or Category in (a) of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances. No further nexus with terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The accused 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 sta....