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TMI Blog2017 (4) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... for short "TADA") and sentenced them to life imprisonment. 2. The facts of the case have been elaborately discussed by the learned Special Judge of the Designated Court for adjudication of TADA cases. We need not, therefore, recapitulate the entire factual backdrop in which the Appellants were tried, found guilty and sentenced, excepting where it is absolutely necessary to do so. There are six Accused in this case, namely, Sahul Hameed (A-1), Raja Hussain (A-2), Zubeir (A-3), Zakir Hussain (A-4), Azeez (A-5) and Seeni Nainar Mohammed (A-6). On 10th October, 1994, at about 06:30 a.m., A-1 to A-6 in pursuance of the conspiracy hatched amongst them, went to the house of one Rajagopalan (since deceased), who was President of Hindu Munnani Association, with a motive to kill him. A day before the incident, A-6 Seeni Nainar Mohammed had advised his brother Raja Hussain (A-2) to meet him after completing the task of murdering Rajagopalan. When Rajagopalan, after taking the newspapers from a newspaper sub-agent Saravanam (PW-3), was going through the newspapers facing East at his house, Accused persons came from left hand side of Rajagopalan and while A-1 caught hold of the neck of Rajagop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. Criminal Appeal No. 498 of 2012 has been filed by A-6 while Criminal Appeal No. 867 of 2012 has been filed by A-1 to A-5. 4. We have carefully perused the impugned judgment and the material on record and have also meticulously examined the testimonies of the witnesses and other relevant evidence produced. Since the appellate jurisdiction against any judgment passed by the Designated Court for TADA cases lies with this Court only, we would consider the peculiar circumstances of the present case to appropriately discuss every relevant issue in question before us. 5. The very first issue which falls for our determination as pressed by the learned senior Counsel for the Accused-Appellants herein is whether the approval in the present case can be said to be sufficient compliance of the provisions of Section 20-A of TADA which reads as under: 20-A Cognizance of offence.- (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anctioning Authority. We have further noticed that the TADA Court convicted the Accused under the TADA Act on the basis of confession of A-6 and not on the basis of any other material. The other point which we have noted is that the Sanctioning Authority (PW-28) admitted in his deposition that he did not know Tamil and did not go through the entire records which were in Tamil. Therefore, it is clear that the Sanctioning Authority has not applied his mind to the records in its entirety and granted sanction only after considering certain documents which were in English. Therefore, we have to accept the contention of the Appellants that the Sanctioning Authority without perusing the relevant documents issued the order of sanction and thereby it has to be accepted that the sanction was granted mechanically. 9. The confessions of A-1 and A-6 are not voluntary as has been evidenced by us from the materials since those confessions were not recorded in a free atmosphere thereby it violated the directions given by this Court. Further, the said confessions could not be relied upon as they contradicted with each other. 10. We, without hesitation, are of this considered opinion that the answ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second is that the said gang or organisation should have involved in terrorist acts subsequent to 23.5.1993. Unless both postulates exist together Section 3(5) cannot be used against any person. 36. 'Terrorist act' is defined in Section 2(h) as having the meaning assigned to it in Section 3(1). That Sub-section reads thus: 3(1) Whoever with intent to overawe the Government as by law established or to strike terror in people or any Section of the people or to alienate any Section of the people or to adversely affect the harmony amongst different Sections 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 otherwise) 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...". We may straightaway observe that the sanctioning authority did not have necessary material before him to show that the alleged act of causing death of the deceased was done with intent to create terror in the minds of public at large. Had there been any such terror in the minds of people, then as an aftermath of the death of the deceased there would have been an adverse effect on the harmony amongst different Sections of people in the vicinity of the place of incident. However, no such incident of striking terror in the minds of people or adverse effect on the harmony amongst any Section of society was reported. The alleged act of causing death of an individual was only an attack by the Accused-Appellants with weapons on the deceased who later succumbed to the injuries. 14. We have noticed that sanction Under Section 20-A(2) of TADA in respect of A-6 was granted by PW-29 on 16.09.1998, which was delayed due to time consumed in the investigation against him. In our considered opinion, the same is also unlawful for the reasons mentioned above. Furthermore, cross examination of PW-30 is also reflecting the non-application of mind when after specifically stating about relationsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving been done whereas in Section 5 it is founded only on possession. Even under Sub-section (3) of Section 3 a person is liable to be prosecuted for abetting the offence if he assists or communicates with a terrorist. Sub-sections (5) and (6) inserted by Act 43 of 1993 to Section 3 also require that a person can be prosecuted only if he is found to be a member of a terrorist gang or terrorist organisation etc. The Act, therefore, visualises prosecution of the terrorist or disruptionist for offences Under Sections 3 and 4 and of others only if they are associated or related with it. That is in keeping with the objective of the Act. The legislation has been upheld as the legislature is competent to enact in respect of a crime which is not otherwise covered by any Entry in List II of the Seventh Schedule. The definition of the crime, as has been discussed earlier, is contained in Sections 3 and 4 of the Act and it is true that while defining the crime it is open to the legislature to make provision which may serve the objective of the legislation and from a wider point of view one may say that possession of such arms, the use of which may lead to terrorist activity, should be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehind enactment of any statute shall prevail. This Court had opined in the words of Justice Dr. A.S. Anand in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602, that 7. 'Terrorism' is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. 'Terrorism' has not been defined under TADA nor is it possible to give a precise definition of 'terrorism' or lay down what constitutes 'terrorism'. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intention to cause terror in the minds of people or strike on them with terror. Therefore, in our considered opinion, the approvals granted by the Superintendent of Police (PW-26) and the IG, CBI (PW-28), in the facts and circumstances of the present case, were completely invalid lacking compliance of the requirements prescribed Under Section 20-A of TADA. Albeit, it can rightly be opined that prior approvals were bad in law in the present case, nevertheless, it cannot be said that the entire proceedings against the Accused-Appellants under TADA, were vitiated in the light of the judgment in the case of Ashrafkhan alias Babu Munnekhan Pathan and Anr. v. State of Gujarat (2012) 11 SCC 606, wherein this Court observed: 33. Now we proceed to consider the submission advanced by the State that non-compliance with Section 20-A(1) i.e. absence of approval of the District Superintendent of Police, is a curable defect Under Section 465 of the Code. We do not have the slightest hesitation in holding that Section 465 of the Code shall be attracted in the trial of an offence by the Designated Court under TADA. This would be evident from Section 14 (3) of TADA which reads as follows: 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Designated Court in its entirety, as it arises from several notable facts, it is not and cannot be disputed that the deceased was killed at the entrance of his house. The post-mortem report being Ext. P-14, which was duly proved by PW15 - Dr. Thiagarajan, also mentioned the cause of death being shock and haemorrhage due to multiple cut and stab injures sustained by the deceased somewhere near 5 O'clock in the morning on 10.10.1994. We have noticed that PW-1 was never called for identification of the Accused-Appellants. 23. Apropos question of reliability of the test identification parade in the present case, when admittedly Accused were already seen through newspaper, we emphasise on few judgments of this Court before coming to the answer to this question. This Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80, has held: 78....From this point of view it is a matter of great importance both for the investigating agency and for the Accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the Accused and that all the necessary precautions and safe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession, be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the Accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the Accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a confession made to the police officer. In a subsequent para of this relied judgment this Court further observed: 32. As to what should be the legal approach of the Court called upon to convict a person primarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case (supra): 41. We have held the conviction of the Accused to have been vitiated on account of non-compliance with Section 20-A(1) of TADA and thus, it may be permissible in law to maintain the conviction under the Arms Act and the Explosive Substances Act but that shall only be possible when there are legally admissible evidence to establish those charges. The Designated Court has only relied on the confessions recorded under TADA to convict the Accused for offences under the Arms Act and the Explosive Substances Act. In view of our finding that their conviction is vitiated on account of non-compliance of the mandatory requirement of prior approval Under Section 20-A(1) of TADA, the confessions recorded cannot be looked into to establish the guilt under the aforesaid Acts. Hence, the conviction of the Accused Under Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand. 27. We would also like to recapitulate observation of this Court in Ashrafkhan's case (supra) which reads as follows: 44. The facts of the case might induce mournful reflection how an attempt by the investigating agency charged with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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