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TMI Blog2005 (11) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... alji was granted bail in case No.10 of 2003, under Section 3/4 of POTA, Police Station Kunda, District Pratapgarh, U.P. on his furnishing a personal bond for ₹ 1,00,000/- with two sureties each in the like amount to the satisfaction of the Special Judge, designated court, Kanpur. T.P (Crl) Nos. 82-84/2004 have been filed by the petitioners apprehending that there is likelihood of miscarriage of justice in the State of U.P. seeking transfer of cases pending against the accused persons from the Special Judge, Kanpur Nagar U.P. to the Designated Court in Delhi In order to appreciate the controversy involved in the matter, it will be proper to take the first case i.e. SLP(Crl) 5609 of 2004 whereby the Review Committee reviewed the cases of all the three respondents i.e. Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji under Section 3/4 of the POTA Act and directed the State Government to release all these accused persons and the proceedings against them shall deem to have been withdrawn from the date of this direction and they may be released from the custody forthwith under Section 3/ 4 of the POTA Act by order dated 30.4.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed three polythene green bags and they also found (i) one DBBL gun (ii) another DBBL gun .12 bore (iii) another DBBL gun No.4136 C/1 (iv) another DBBL gun number destroyed (v) one rifle (vi) one SSBBL gun No.3077-1994 (vii) one SBBL gun number 12194-B.2 (viii) five pieces of SSBBL guns (ix) two pieces of Mauzre guns (x) two pieces of Muzzle loading guns (xi) thirteen pieces of swords (xii) two pieces of Hachet (xiii) two pieces of iron spears (xiv) one cane with concealed sword (xv) one iron axe with cap and (xvi) one big knife with handle. On 26th January, 2003 they recovered one 30 spring field self loading rifle, one 30 carbine, 11 cartridges of 30 spring field rifle and 30 cartridges of 30 carbine. These huge catchy of arms were recovered on the raid by the police on 25/26th January 2003 and, therefore, an order under POTA was passed against all the three accused namely, Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji by the State Government. All this recovery of arms, ammunition and other weapons were detailed in the order. It was also disclosed that a conspiracy was hatched by Uday Pratap Singh to cause a massacre and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under Section 60 of POTA before the Reviewing Committee appointed under the POTA Act. They also filed petition before the Central Government. The Reviewing Committee headed by Justice Naseem Uddin and Rajendra Kumar Dubey, ex Commissioner in U.P. reviewed the matter and held that since there is no case against the applicants under the POTA and no prima facie case is found under Sections 3 and 4 of the POTA Act, therefore, there is no basis for proceeding against accused under POTA and the State of U.P. was directed to release all the three applicants. This is the subject matter of the Special Leave Petition (Crl) 5069 of 2004. All the arguments were directed on whether the order passed by the Review Committee is sustainable in law or not. In fact, before this order of the Review Committee the State Government has already passed the order for withdrawing the cases against all the accused under the POTA Act by order dated 29.8.2003 but since the order was passed by the Review Committee therefore we shall now deal with this petition first that whether this order of the Review Committee can be sustained or not. Before we address ourselves and examine the validity of this o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine: (b) 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 life 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 life and shall also be liable to fine. (4) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the husband or wife of the offender. (5) Any person who is a member of a terrorist gang or a terrorist organ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: Provided that in the case of a Union territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court. 4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003 (4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly. (5) Any direction issued under sub-section (4): (i) by the Review Committee constituted by the Central Government, shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government, shall be binding on the State Government an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their agencies, or detains any persons and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act. That shows that if any person with the help of any bombs, dynamite or explosive substance or by fire arm or lethal weapons terrorize people or any section of people then such action will amount to a terrorist activity and the preparation thereof will also be punishable. Therefore, the question before us is whether the possession of the weapons by the accused persons in their houses were lethal weapons and the possession of the explosive substances were preparation of the terrorist act or not. Secondly, whether unauthorized possession under Section 4(a) of the Arms Act and ammunition specified in column 2 and 3 and category (1) or category 3(a) of Schedule 1 to the Arms Act, 1959 in notified area would attract the wrath of this provision. Likewise, whether possession of hazardous explosive or lethal weapons capable of mass destruction by these accused persons can be prosecuted or not under Section 4(b) of the Act. Learned counsel for the appellant has seriously challenged the order passed by Review Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or flash caused by the firing thereof. Nil. II Machinery for manufacture or prooftesting of a fire-arm. Machinery for manufacturing ammunition. 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 : (a) Revolvers and pistols. Ammunition for fire-arms of cateh gory III (a). (b) Breech- loading rifles other than .22 bore rifles mentioned in category III (c) below. Ammunition for fire-arms of category III (b). (c) 22 bore (low velocity) rifles using rimfire cartridges, breech-loading smooth-bore guns and air-rifles. Ammunition for fire-arms of category III (c). (d) Air-guns and muzzle-loading guns. Ammunition for fire-arms of category III(d). IV Curios and historical weapons, other than those excluded under Section 45 (c). Curios and historical ammunition. V Arms other than fire-arms : Sharpedged and deadly weapons, namelyswords( including sword-stick), daggers, bayonets, spears (including lances and javelins; battle-axes, knives (including kirrpans and khukries) and other such weapons with blades longer than 9 or wider than 2 other than those designe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view. The question before us is that on the relevant date whether the whole area of Uttar Pradesh was notified area or not under Section 4(a) of the Act. Much argument was addressed in this case and the original records of the Secretariat and of the Government Press was placed before us for our perusal. It may also be relevant to mention here that a committee was appointed on the complaint made by some of the legislators that the raid at the house of Udai Pratap Singh was made prior to issue of the notification of the notified area. The committee after considering full enquiry found that notification of notified area was promulgated on 29.1.2003 and it was communicated to the district on 31.3.2003 and it reached them thereafter. Since this finding was seriously debated before us also, therefore we perused the report of the committee as well, we called the original record to satisfy ourselves when exactly was notification issued. After going through the note sheet of the Secretarial file as well as the record of the Government printing press, Lucknow, we are satisfied that in fact the notification declaring whole of State of Uttar Pradesh as a notified area was not published on 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self has been found to be punishable under this Section. Learned counsel submitted that this aspect seems to have been completely missed by the Review Committee. The Review Committee only concentrated with regard to the question of Section 4(a), but did not examine the matter with reference to sub-section (b) of Section 4 of the Act. The two expressions which appear in Section 4(b) are relevant for our purposes i.e. the possession of hazardous explosive substance or lethal weapons capable of mass destruction . Learned counsel for the petitioner has submitted that the hazardous explosive substances were recovered from the house of Udai Pratap Singh cannot be dismissed as an explosive of low intensity and in that connection learned counsel has invited our attention to the expression hazardous and also invited our attention to the findings given by the forensic experts. The explosive substances recovered were sent for Forensic Science Laboratory, U.P. Agra and Forensic Science Laboratory in their report has observed as under: On the analysis explosive substances Nitrate, Sulpher, Potassium and Charcoal were found in the Exhibit. Organic chemical and DLC method has been used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces; also any part of any such apparatus, machine or implement. Therefore considering the hazardous substance under Section 4(b) mean that possession of it by any person be it notified area or otherwise is also punishable under the Act. Learned Counsel Shri Shanti Bhushan and Shri Rao tried to play it down that as per the finding of the bomb demolishing squad it is of low intensity and cannot fall in category of hazardous substance. We regret, we cannot accept their submission. This explosive is capable of creating a havoc if it is used for preparing a bomb, it is capable of mass destruction. Any person in this background possessing this hazardous explosive substance cannot be credited to have it for bonafide purpose. Therefore, the fact that hazardous substance was found at the house of Udai Pratap Singh clearly shows that the case is covered by Section 4(b) and it cannot be played down simply because it has been reported by the bomb demolishing squad that it is of low intensity. This explosive substance is certainly hazardous and is capable of being used for preparation of bomb or other explosive material for scaring the people or for causing mass destruction be it in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rifle that could be used by Soviet tank crews. In 1946, while working at the Kovrov weapons plant, Kalashnikov began work on the AK-47. The AK-47 was accepted as the standard rifle for the Soviet Army in 1949 and retained that status until it was succeeded by the AKM. To this day between 30 and 50 million copies and variations of the AK-47 have been produced world wide, making it the most widely used rifle in the world. The AK-47 is chambered in 7.62X39 and features hardwood furniture with a fixed stock. The AK-47 has a 16 inch barrel with a muzzle nut to protect the threads. The AK-47 features a stamped receiver with a non ribbed cover plate and magazine. The rifle can be fired in two different firing modes; semi and full auto. The AK-47 has a 800 meter leaf sight that is only adjustable for range. All windage adjustments must be made by using the front sight. The AK-47 weighs 4,300 g and has a rat e of fire of 600rpm. The rifle will accept most synthetic and metal magazines, generally 30 rounds in capacity. The rifles effective killing range is 1,500 meters, and is generally not used for more than 300 meters. The original AK-47 was not outfitted for the use of a bayonet, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the possession of such unauthorized weapon is dangerous and is capable of mass destruction. It is a lethal weapon capable of mass destruction and unauthorized possession thereof is itself punishable. This aspect was also not been adverted by the Review Committee. The Review Committee only directed that an unauthorized possession of the weapons which have been specified in column 2 and 3 of category 1 or category 3(a) of Schedule 1 to the Arms Rules possession of it in the notified area is punishable. But if at the same time one of the weapons falls in the category of Section 4(b), then it does not mean that since it falls in category 4(a), it stands excluded from category of Section 4(b). If the weapon falls in the category of Section 4(b) also under the head lethal weapon , then irrespective of the fact that it falls in the category (a) will not be excluded from category of Section 4(b). We cannot read both the provisions of clause (a) and (b) to be of exclusive of each other. Both the provisions have to be read harmoniously. If the weapon which is specified in clause (a) is equally covered under clause (b) under the heading of lethal weapon , then it would not mean that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . So far as this case is concerned, we are of the opinion that there is prima facie case for prosecuting the accused persons. These accused persons were charged under Section 3(3) read with Section 4 (a)(b) of the Act. But so far as Section 4(a) is concerned, for reasons mentioned above, it cannot proceed now. But it can proceed so far as under Section 3(3) Section 4(b) of the Act is concerned along with Arms Act Explosives Act. Therefore, we allow this appeal in part. We set aside the order of the Review Committee and hold that the respondents can be prosecuted under Section 3(3) and Section 4(b) of the Act and other provisions of the Explosive and Arms Act. The accused, Mr. Udai Pratap Singh and Raghuraj Pratap Singh alias Raja Bhaiya may surrender before the Judge, Designated Court, under POTA Act/Sessions Judge, Kanpur Nagar within a week and apply for bail. In case they fail to appear before the Judge, the Judge, Designated Court under POTA Act, Kanpur Nagar get them arrested. So far as Akshay Pratap Singh is concerned, as he is already on bail, he need not to surrender. However, any observation made in this order will not prejudice their trial. SLP(Crl) 1521 of 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor received such instructions, he cannot be said to act extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the government for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government has already withdrawn the POTA cases against the accused persons and directed the public prosecutor to withdraw these cases. In this background, there is no likelihood of fair trial in the State of U.P. The respondents failed to file counter affidavit, but an affidavit has been filed by one Dinesh Priyadarshi on behalf of respondents No. 2 to 4. But no affidavit was filed by the respondents though they were made a party to the petition. We failed to understand why the affidavit has not been filed by respondents themselves. It is alleged that accused Raghuraj Pratap Singh alias Raja is an independent MLA who is supporting the present government and is a Minister in the government. After going through the transfer petition and counter affidavit on behalf of the respondents, we are of the opinion that there is likelihood of miscarriage of justice in the background mentioned above. It is alleged that murder of Shri Rajender Yadav has taken place and his younger brother is connected with this case. Therefore in the interest of justice both these cases be transferred to any other court where, in a proper atmosphere, the matter can be dealt with fairly. In the interest of jus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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