1998 (4) TMI 579 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of TADA to the incident.
2. Validity of the investigation under TADA.
3. Validity of the sanction under Section 20A(2) of TADA.
4. Reliability of prosecution witnesses.

Detailed Analysis:

1. Applicability of TADA to the Incident:
The court examined whether the activities could be classified as "terrorist activities" under TADA. The expression "terrorist act" is defined in Section 3(1) of TADA, and the court referenced the case of *Hitendra Vishnu Thakur v. State of Maharashtra* to outline that terrorism involves violence that produces prolonged psychological effects on society. The court concluded that the ghastly act of setting fire to a Chawl occupied by Hindus during communal riots, resulting in multiple deaths, had far-reaching consequences and disturbed the societal harmony, thereby falling within the ambit of TADA.

2. Validity of the Investigation under TADA:
The defense argued that the investigation was invalid as the approval for applying TADA was not given by the District Superintendent of Police, as required under Section 20A(1). The court noted that Section 20A(1) was introduced after the incident date, making it inapplicable. Additionally, the Commissioner of Police, Greater Bombay, had accorded approval on January 27, 1993, based on a report dated January 13, 1993. The court found no infirmity in the investigation process and rejected the defense's contention.

3. Validity of the Sanction under Section 20A(2) of TADA:
The defense challenged the validity of the sanction, arguing it was granted without proper application of mind. The court examined the sanction order and the evidence of the Commissioner of Police, who testified that he reviewed the investigation records and was satisfied before granting the sanction. The court held that the sanction was valid, as the Commissioner had applied his mind to the relevant materials. Therefore, the court found no illegality in taking cognizance and trying the accused under TADA.

4. Reliability of Prosecution Witnesses:
The court scrutinized the testimonies of the six key eyewitnesses (PWs 1, 2, 3, 4, 9, and 10) and found significant inconsistencies, contradictions, and improbabilities in their statements. The court noted the delay in examining the witnesses and the fact that some witnesses had seen the accused in police custody before identifying them in court. The court emphasized that the credibility of witnesses must be measured with the same yardstick, whether under TADA or normal criminal law, and found the witnesses to be wholly unreliable. The court concluded that the prosecution failed to establish the guilt of the accused beyond a reasonable doubt based on such unreliable evidence.

Conclusion:
The court set aside the conviction and sentence passed by the Designated Court under TADA and various sections of the IPC. The appellants were ordered to be released forthwith unless required in any other case.