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TMI Blog1994 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Designated Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modification that the reference to imprisonment for life shall be construed as a reference to imprisonment for ten years . xxxx xxxx 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act or any rule made thereunder. (8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 incorporated by reference in section 5 of the TADA Act is as under : SCHEDULE-I Category 1 Arms Ammunition 3 1. I(a) Prohibited arms as defined in section 2(1) (i) and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms. Prohibited ammunition as defined in section 2(l)(h) and such other articles as the Central Government may, by notification 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and trial while providing a more severe maximum, with a minimum punishment of five years' imprisonment for it. It is this difference which is the reason for the controversy raised about the true meaning and scope of the offence prescribed by Section 5 of the TADA Act and the rights of the accused in this context. The ingredients of the offence punishable under Section 5 of the TADA Act are; (i) possession of 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 admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even by the National Human Rights Commission. It is the duty of courts to accept a construction which promotes the object of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does nor effect it constitutionality or constitution. Abuse has to be checked by constant vigilance and monitoring of individual cases and this can be done by screening of the cases by a suitable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable changes in the procedure with a view 'to achieving its objects. It is well settled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly construed.................. ..........Therefore, when law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a view to prevent the availability of unauthorised weapons and substances of this kind in that area. Learned Additional Solicitor General submitted that it is because of this fact of greater proneness of a notified area to the commission of terrorist and disruptive activities that mere unauthorised possession of the specified arms etc, therein is made a statutory offence of strict liability. This is the basis of his contention 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 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prevention of which check on the influx of the specified arms and ammunition etc. in that area, is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as notified area has to be presumed for the purposes of Section 5 for otherwise it would be put to proof in every case. This is not true significance of the third ingredient of the offence under Section 5. The significance of unauthorised 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. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 12 of the TADA Act. Section 12 itself shows that the Parliament envisaged a situation in which a person tried under the TADA Act of any offence may ultimate be found to have committed any other offence punishable under any other law and in that situation, the Designated Court is empowered to punish the accused for the offence under such other kw. The offence under Section 5 of the TADA Act is graver and visited with more servere punishment 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 21 also supports the view that the statutory presumption arising of commission of an offence under section 5, on proof of the requisite facts, is a rebuttable and not an irrebuttable presumption. If the presumption arising of an offence under Section 3 by virtue of section 21 is expressly made rebuttable, there can be no reason why presumption of the offence under Section 5 would be irrebuttable and no rebuttable. After all the offence 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 presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , The material words are: Any person who carries......any firm-arm, not being a firearm which he is duly licenced to carry .......... shall be guilty of an offence........ It was conceded on behalf of the Crown - and rightly, in their Lordship' opinion - that carries here means carries to his knowledge , and that the carrying of a firearm by a person who did not know what he carried would not constitute 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fecting the burden of proof and the comparative ease or difficult which the respective parties would encounter in discharging the burden. In R. v. Hunt, [1987] 1 All ER 1, the rule of construction in such a situation was indicated as under : I would summarise the position thus by saying the Wool-mington v. DPP did not lay down a rule that the burden of proving a statutory defence only lay on the defendant 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 intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution for proving the offence under Section 5 of the TADA Act. The nexus is implicit, unless rebutted, from the fact of unauthorised conscious possession on any such weapon etc. within a notified area and the inherent lethal and hazardous nature and potential of the same. The observations of Sahai, J. alone in Kartar Singh cannot be read to enlarge the burden on the prosecution to prove the implicit nexus by evidence aliunde, or to require the prosecution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orbidden arms and his accomplice carrying its ammunition so that neither is covered by Section 5 when any one of them carrying both would be so liable. We must, therefore, correct the view taken in Paras Ram. This part of section 5 has to be read in the manner indicated herein by us. With respect, the decision in Paras Ram does not lay down the correct law. The Parliament envisages that enactment of the TADA Act is necessary to deal terrorists, disruptionists 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons indicated therein. One of the modifications made in Section 167 of Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period upto one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, on the report of the public prosecutor 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the requirement of the 'notice' con- templated by the decision in Hitendra Vishnu Thakur before granting the extension for completing the investigation is mere production of the accused before the court and not a written notice to the accused giving reasons for seeking the extension requiring the accused to show cause against it. Learned counsel submitted that mere production of the accused at that time when the prayer for extension of time is made 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 Vishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused under the TADA Act for this reason alone in all such cases. This is the occasion for seeking a fresh decision of this question by a larger Bench. We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that he is not guilty of an offence. which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code............. cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. (page 707 of SCC) In reply, the learned Additional Solicitor General submitted that the pronouncement of the Constitution Bench in Kartar Singh is clear and unambiguous and, therefore, 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, dynam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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