1. Appeal against acquittal for conspiracy to commit terrorist acts, possession of explosives under TADA and Explosive Substances Acts, and IPC offences. (Para 1 , 2 , 3 , 4 )
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1996 Supreme(SC) 1808
1997(2) Supreme 379
SUPREME COURT OF INDIA
G.N. Ray and G.T. Nanavati, JJ.
State of Tamil Nadu -Appellant
versus
Sivarasan @ Raghu @ Sivarasa & Ors. -Respondents
Criminal Appeal No. 819 of 1994
Decided on 31-10-1996
Counsel for the Parties :
For the Appellant : V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V. Viswanathan and V.G. Pragasan, Advocates.
For the Respondents : U.R. Lalit, Sr. Adv., M.T. George, (P.D. Sharma) Adv. (NP), Ashok Aggarwal, R.G. James and C.S. Ashri, Advocates.
Important Points
IMPORTANT POINTS
1. Typewriting can legitimately be said to be included within the meaning of the word writing for the purposes of Section 15 TADA Act.
2. Provisions of TADA Act have to be construed strictly and the expression explosive substances as contemplated u/s 5 should not be given the same meaning as is given under the Explosive Substances Act.
1. Typewriting can legitimately be said to be included within the meaning of the word writing for the purposes of Section 15 TADA Act.
2. Provisions of TADA Act have to be construed strictly and the expression explosive substances as contemplated u/s 5 should not be given the same meaning as is given under the Explosive Substances Act.
Subject
Criminal Law - TERRORISM
Act Referred
CRIMINAL PROCEDURE CODE: S.222, S.164
EXPLOSIVE SUBSTANCES ACT: S.5, S.4, S.7
INDIAN PENAL CODE: S.309, S.120(b)
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT: S.15(3)(b), S.3(3), S.5
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION RULES: R.15
EXPLOSIVE SUBSTANCES ACT: S.5, S.4, S.7
INDIAN PENAL CODE: S.309, S.120(b)
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT: S.15(3)(b), S.3(3), S.5
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION RULES: R.15
Headnote
(i) Terrorist and Disruptive Activities (Prevention) Act-Section 15-TADA Rules-Rule 15-Confessions to Police Officers-Words recorded in writing -Interpretation of-Expression has a wider meaning-When Superintendent of Police got the confessions written on a typewriter-Admissibility-Whether confessions can be said to have been recorded in accordance with Section 15 ?-(Yes)-Typewriting can legitimately be said to be included within meaning of the word hand writing -Expression under his own hand as used in sub-rule (3)(b) of Rule 15-It does not mean in his own handwriting-Confession should be recorded by police officer in his presence and hearing.
Held, that the confession should be recorded by the police officer in his presence and hearing. The emphasis is on the presence and hearing of the police officer and not on the police officer himself writing down the confession, the certificate and the memorandum. Thus, what is required by sub-rule (3) is that the written confession should not only be countersigned by him but it should also contain the required certificate signed by him. The intention of the Rule clearly appears to be that all the formalities should be performed by him and he should himself certify that he had discharged all the obligations before recording the confession. The learned Sessions Judge was, therefore, wrong in holding that the two confessions were inadmissible in evidence as they did not comply with the requirement of Rule 15(3)(b). (Para 18)
(ii) TADA-Section 3(3)-Indian Penal Code, 1860-Section 120-B-Prosecution for offence under-Charge framed against accused that they had conspired to commit terrorist acts and also to manufacture explosives like grenades and bombs in notified area-Conspiracy as alleged not proved on basis of evidence of witnesses who deposed that they had seen accused meeting each other and on basis of two confessions-Circumstance that certain articles were found from them-Cannot be regarded as sufficient to prove that charge-Acquittal sustainable-Prosecution failed to establish that any of accused had intention to endanger life or cause serious injury to property in India-Section 4 of Explosive Substances Act not applicable. (Paras 21 & 22)
(iii) TADA Act-Section 5-Prosecution for offences under-Unauthorised possession of explosive substance in a notified area-Evidence shows that no terrorist or disruptive activity was ever intended by him to be committed within India-The articles were to be sent to Cylone and used there-Presumption rebutted-Acquittal of A-9 confirmed. (Paras 24 & 25)
(iv) INTERPRETATION OF STATUTES-TADA Act-Its provisions have to be construed strictly-Expression explosive substances -Not to be given same meaning as is given under Explosive Substances Act-Explosive substance contemplated u/s 5 must be of the type of bombs and dynamites-It must be a complete article or device capable of exploding-Empty cells or parts for making a bomb so long as they are not assembled and filled with gun powder or other explosive substance-Cannot be explosive substance as contemplated by Section 5 of TADA. (Para 25)
(v) Explosive Substances Act-Section 5-A-1 and A 5 to A 9 found in possession of articles held to be explosive substances-There being no specific charge u/s 5-Accused can be convicted and punished under that Section, if ingredients constituting that offence held established-A1 and A5 to A9 held guilty for offence u/s. 5. (Para 26)
(vi) Explosive Substances Act-Section 7-Sanction to prosecute-Object of using word consent instead of sanction -There is to be a purely subjective appreciation of matter before giving necessary consent. (Para 27)
(vii) Indian Penal Code, 1860-Section 307/34-Prosecution for offence under-A1 was found driving scooter in a rash and negligent manner-PW 1 traffic police inspector signalling him to stop the vehicle-A1 trying to dash scooter with him-No attention to murder PW 1 -Acquittal of A1 and A2 u/s 307 maintained-Conviction u/s 353 IPC. (Paras 28 & 29)
(viii) Indian Penal Code, 1860-Section 309-A1 tried to bite a cyanide capsule when caught by police--Acquittal in view of decision in P. Rathinam s case-Not sustainable-Section 309 is constitutionally valid-Acquittal of A1 set aside-Gian Kaur s case : Relied on. (Para 30)
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. State challenged the trial court's findings on conspiracy, the exclusion of confessional statements, and the validity of the District Collector's sanction. (Para 7 )
3. The court found conspiracy unproven, validated typewritten confessions, and distinguished explosive substances under TADA from those under the Explosive Substances Act. (Para 10 , 11 , 12 , 13 , 14 , 17 , 18 , 19 , 20 , 22 , 24 , 25 , 27 , 28 , 30 )
4. Recorded in writing and under his own hand under TADA include typewriting; TADA Section 5 requires complete explosive devices capable of exploding. (Para 17 , 18 , 25 )
5. Appeal partly allowed; convictions ordered under Section 5 Explosive Substances Act, Section 353 IPC, and Section 309 IPC; other acquittals confirmed. (Para 31 )
6. Does the requirement that a confession be recorded in writing under Section 15 of the TADA Act necessitate the police officer's own handwriting?
No. The expression recorded in writing has a wide meaning that includes typewriting. The legislature intended that the officer supervise the process and ensure voluntariness, not necessarily perform the physical act of writing. (Para 17 )
7. Does the requirement for a police officer to certify a confession under his own hand under Rule 15(3)(b) of the TADA Rules imply handwriting?
No. The expression under his own hand does not mean in the officer's own handwriting. The essential requirement is that the officer certifies the confession was taken in his presence and recorded by him. (Para 18 )
8. Does the term explosive substances under Section 5 of the TADA Act include incomplete parts of bombs or grenades?
No. Unlike the Explosive Substances Act, TADA does not define the term. Given the context of bombs and dynamites, the substance must be a complete article or device capable of exploding. (Para 25 )
9. Is the consent of a District Collector for prosecution under Section 7 of the Explosive Substances Act invalid if witness statements were not provided?
No. Consent is a subjective appreciation. If the Collector considers the FIR, forensic reports, and Mahazars, the consent is legal and valid even without the submission of witness statements. (Para 27 )
JUDGMENT
Nanavati, J.-This appeal arises out of the judgment and order of the Principal Sessions Judge and Designated Court, Coimbatore, in C.C. No. 61 of 1992. As the learned Judge acquitted the accused, the State has filed this appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act ).
2. The prosecution case is that Shivarajan alias Raghu (Respondent/Accused No. 1) and Vigneswaran alias Vicky (Respondent/ Accused No. 2) who were Sri Lankan nationals and members of LTTE came to India sometime in 1989 without any travelling documents. So also, Guna and Dixon who were Sri Lankan nationals and members of LTTE had come to India in the like manner. Since then they were engaged in obtaining explosive substances, manufacturing bombs and sending them to LTTE in Sri Lanka. In the said clandestine activity they were helped and assisted by Respondent Nos. 3 to 9 (Accused Nos. 3 to 9) who were Indian nationals. Till the assassination of Rajiv Gandhi on 21..5.91, they could carry on the said activity without any hindrance. Thereafter it became difficult for them to do so as the whole of Tamil Nadu was declared as a Notified Area with effect from 23.6.91, under Section 2(1)(f) of TADA Act and also because the Government of India and the Government of Tamil Nadu tightened security measures within the State of Tamil Nadu. The police was also on look out for Sri Lankans who did not possess passport and visa for staying in India and had also required the house owners to report to it if such Sri Lankans were found to be occupying their houses. Due to such strict measures A-1, A-2, Guna and Dixon found it difficult to obtain accommodation for their residence and for manufacturing bombs and storing them and, therefore, they went on changing houses after taking them on rent by making misrepresentations. Since February 1991 A-1 and Guna had taken on rent one house bearing Door No. 11/12A situated in Shivaji Colony in Coimbatore. Dixon and others were occupying a different house in Coimbatore. Dixon and others were occupying a different house in Coimbatore. As the LTTE was in desperate need of hand grenades and bombs and wanted them to be supplied latest by the end of first week of August 1991, A-1 to A-5 and A-7 to A-9 and Guna met at the house of A-1 in Shivaji Colony and decided to manufacture and send them to Sri Lanka and also to strike terror in the people by using bombs or other explosives and thereby causing damage to Indian property or death or injuries to Indian leaders and other persons if they came in their way. All the nine accused along with Guna and Dixon continued to manufacture different parts of hand grenades and plastic bombs and store them at different places. A-1 and A-2 were required to change their residence from Shivaji Colony to a house in Dr. Muthuswamy Colony as the owner of the house objected to their suspicious activities. On 28.7.91, A-1 and A-2 after making necessary arrangements for transporting the hand grenades and plastic bombs manufactured by them with the help of other accused and which were to be filled with explosives at Trichy returned to the house in Dr. Muthuswamy Colony. They found police standing near their house. So they went to another house where some more articles were kept. There they came to know that Guna and Dixon and committed suicide as the police had surrounded their house.
3. In the evening A-1 and A-2 were going on a Kinetic Honda scooter. P.W. 1 Pandurangan, a traffic police constable signalled them to stop as he noticed that the scooter was being driven very fast. Instead of stopping the scooter, A-1 who was driving it, attempt to dash it against him. P.W. 1 jumped aside and saved himself. After covering some distance A-1 and A-2 fell down on the road along with the scooter. P.W. 1 then went to that place and asked A-1 to show his licence. A-1 challenged him by saying as who he was to ask for a licence. A-1 then sa
