2005 Supreme(SC) 1464

2005(7) Supreme 581
Supreme Court of India
(Under Art. 32 of the Constitution of India)
B.N. Agrawal & A.K. Mathur, JJ.
S.K. Shukla & Ors. —Petitioners
versus
State of U.P. & Ors. —Respondents
Writ Petition (Crl.) Nos. 132-134 of 2003
(With SLP (Crl.) No. 1521/2004, T.P. (Crl.) Nos. 82-84/2004 and Crl.A.No. 1511/2005 @ SLP (Crl.) No. 5609/2004)
Decided on 10-11-2005
Counsel for the Parties :
For the Petitioners : Sunil K. Jain, Ravi Singhal, S. Borthakur, Manish Kumar and Ansar Ahmad Chaudhary, Advocates.
For the Respondent No. 1 : Shanti Bhushan, Sr. Advocate, Ravi Prakash Mehrotra, R.K. Singh, Garvesh Kabra and Ms. Savitri Pandey, Advocates.
For the Respondent Nos. 2-4 : P.P. Rao and Vijay Bahadur Singh, Sr. Advocates, C.D. Singh, Gunratan Pandey, Ms. Kiran Suvarna, Ms. Hena Rizvi, Dr. Indra Pratap Singh, Advocates.
For the Union of India : T.S. Doabia, Sr. Advocate, M.S. Doabia, Hemant Sharma, P. Parmeswaran and Ms. Sushma Suri, Advocates.
For the Respondent in Crl.A.No. 1511/2005 : Pradeep Misra, Advocate.

Very Important points
1. The use of the Prevention of Terrorism Act for personal benefit of the political parties has to be condemned in no uncertain terms.
2. The role given to the POTA Review Committee under sub-section (4) of Section 60 of the Prevention of Terrorism Act is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act. The sufficiency of the evidence cannot be gone into by the Review Committee.
3. Withdrawal of the POTA order by the State Government against three accused, Udai Pratap Singh, Raja Bhaiya and Gopalji is unjustified.

Headnote:(i) Prevention of Terrorism Act, 2002—Sections 3/4, 50 and 60—Order passed under POTA against three accused—They were charged u/s 3(3) rw/s 4(a) and (b)—Review Committee reviewed cases of all three accused, Raja Bhaiya, ‘UP’ and ‘AP’—State Government was directed to release all these accused persons and for withdrawal of proceedings against them—Order of POTA Review Committee challenged—Prosecution case of recovery of arms and explosives from the possession of these accused persons on police raid—It was disclosed that a conspiracy was hatched by ‘UP’ to cause a mass acre and to create terror after killing some VIPs—In this order it was mentioned that one ‘RY’ stated that Raja Bhaiya and ‘RB’ have brought AK-47 rifle and given it to ‘UP’—Subsequently ‘RY’ was murdered —Allegations that these persons kept the huge arms and ammunition including AK-56/AK-47 in their house—Large number of criminal cases pending against these persons—Raja Bhaiya is alleged to be involved in 37 cases for various offences u/ss 302, 307, 147, 148, 120-B and 320 IPC—Whether the order passed by the Review Committee for withdrawal of POTA cases against these accused is sustainable—(No).

       Held : A perusal of these relevant Sections shows that Section 3 deals with terrorist activities and we are specially concerned with sub-section (3) which, inter alia, states that whoever conspires or attempts to commit, or advocates, abets, advisers 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. Therefore the ambit of Terrorist Act is very wide and in this any person who commits or advocate, abets, advises or incites or knowingly facilitates the commission or involved in preparation to a terrorist act can be roped in under the wide definition of the Terrorist Act. In fact, the sub-section (1) of Section 3 clearly says that whoever with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or a section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature or by any other means whatsoever, in such manner as to cause death 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 causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any 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. (Para 12)

       After close scrutiny of the records of the Government Secretariat’s files as well as original registers of the Government Press, we are of the opinion that the view taken by the Review Committee to this extent is correct that the whole area was notified on 29.1.2003 only and not on 23.1.2003 - the date of the notification. The requisition reached the Government Press for publication 5.30 on 27.1.2003 and it was published and ready for dispatch on 29.1.2003 and accordingly it was dispatched to the Home Department on 29.1.2003. Therefore, from these facts it is clear that the finding accorded by the Review Committee that the notification notifying the State of U.P. as a notified area under Section 4(a) was published in the Extra Ordinary Gazette of U.P. on 29.1.2003 and it was dispatched thereafter to all the districts magistrates. Therefore, it become effective from the date of its publication. Normally under the State General Clause Act, an Act comes into force on the date when the assent of the Governor or the President as the case may be, is first published in the official gazette of the State. Therefore, publication in the gazette is essential as it affects the rights of the public. Since this prohibitory notification notifying that the possession of certain kinds of arms in the notified area is prohibited, therefore, it would come into effect from the date when it was published in the official gazette. (Para 17)

       Therefore, so far as this part of the finding given by the Review Committee that notification under Section 4(a) had not come into existence at the time when the raid at the premises of Udai Pratap Singh was conducted, this finding of the POTA Review Committee is correct. As a result of this finding so far as charge under Section 4(a) cannot be sustained. (Para 18)

       Our attention was also invited to the observation of the bomb disposal/disbursement certificate it was mentioned that ‘low intensify’. Therefore the question is whether this explosive can be said to be as hazardous substance or not. Firstly, it is unlikely that a law abiding citizen will keep such quantity of the explosive at his house. It is not an explosive for purpose of firecrackers. In the light of the facts mentioned above, keeping of such explosive at their house does not show that it was meant for a bonafide purpose. The question is whether this substance is hazardous in nature or not. The very fact of keeping such huge quantity of explosive in house is on the face of it is a hazardous and it is not kept normally by a person unless who deals in explosive with authorized licence for that purpose. The possession of such explosive without any authorized licence is a serious matter. Though, it is dealt separately because the accused has already been charged under the Explosive Act. But in this present context can such unauthorized possession by a person can be said to be a bonafide, is it not a hazardous or injurious to the public at large? (Para 21)

       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. (Para 23)

       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 terms of the human beings or any building or otherwise. This aspect of the matter seems to have not been adverted by the Review Committee. (Para 24)

       AK-56 is a very dangerous weapon and it is used in the warfare as well as in terrorist activities very frequently. The possession of which in an unauthorized manner is itself is an offence under Section 4(b) of the Act. Learned counsel has also brought to our notice the potentiality of creating mass destruction by a weapon like AK-56 and invited our attention to the literature of the AK-47 and AK-56, AK-56 is, in fact, the improved version of AK-47. (Para 27)

       Potentiality of AK-56 is capable of causing mass destruction. It fires about 600 rounds per minutes, it means 600 bullets if hit all the 600 targets, it can lead to a mass destruction. Therefore, 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 shall stand excluded from Section 4(b). We have to keep in view the purpose for which this Act was enacted i.e. prevention of the terrorists activities and we cannot interpret provisions of Section 4(a) and (b) to be exclusive of each other [Ref: 2005(6) SCALE 177]. If the weapons enumerated in clause (a) are also covered in clause (b), then it does not go out of the net of clause (b). This aspect was not addressed by the Review Committee at all. The Review Committee put a complete gloss over possession of the explosive substance, that it is not a hazardous or capable of mass destruction because of its low intensity. (Para 30)

       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. (Para 31)

       (ii) Prevention of Terrorism Act, 2002—Section 4(a), 4(b)—Unauthorized possession of bombs, dynamites or hazardous explosive substance or lethal weapons capable of mass destruction—Such possession by any person be it notified area or otherwise is punishable under the Act.

       Held : Section 4 has already reproduced above has two parts, one with the possession of the arms and ammunition specified in column 2 and 3 of the category 1 or category 3(a) of Schedule 1 of the Arms Rules, 1962, the unauthorized possession of them in notified area is punishable. (Para 15)

       The second category i.e. Section 4(b) which says that the unauthorized possession of bombs, dynamites, hazardous explosive substances or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature capable of mass destruction whether notified or not notified. Therefore, the possession of bombs, dynamite or hazardous explosive substance or lethal weapons in an unauthorized manner is punishable in itself and need not be in notified area. Therefore, Section 4(a) and (b), the possession of the arms mentioned in clause (a), unauthorized possession thereof in notified area is prohibited whereas in Section 4(b) any bomb, dynamite, hazardous explosive or lethal weapon capable of a mass destruction is punishable irrespective of the fact that the area is notified or not notified. The qualification of the notified area is not required in Section 4(b). (Para 16)

       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. (Para 23)

       (iii) Prevention of Terrorism Act, 2002—Section 4—Hazardous substance—Explosive substance recovered capable of being used for preparation of bomb or for scaring the people or for causing mass destruction—It cannot be played down simply because it has been reported by the bomb demolishing squad that it is of low intensity. (Para 24)

       (iv) Prevention of Terrorism Act, 2002—Section 4—Lethal weapons—AK-56 and A-57 rifles, capable of causing mass destruction—Unauthorized possession of such weapon is punishable—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 the category of Section 4(b)—Both the provisions of clause (a) and (b) of Section 4 cannot be read to be exclusive of each other—Both the provisions have to be read harmoniously. (Para 30)

       (v) Prevention of Terrorism Act, 2002—Section 60—POTA Review Committee—Scope of powers to go into sufficiency of evidence.

       Held : The role of the Review Committee is very limited and the Review Committee has to see a prima facie case and cannot enter into the merit that whether ultimately the conviction will be entailed or not or the evidence is so weak to connect the other accused persons. The role given to the Review Committee under sub-section (4) of Section 60 is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act or not. The Review Committee has traveled beyond its scope, the sufficiently of evidence cannot be gone into by the Review Committee. It is also not the job of the Review Committee whether confession is admissible or not. Role assigned to Review Committee is very limited and if the prima facie case connects the accused on the basis of the material with the prosecution then it is not for the Review Committee to dilate on that as if they are trying the cases under the Act. (Para 31)

       (vi) Prevention of Terrorism Act, 2002—Applicability—Use of the Act for personal benefit of the political parties has to be condemned—This Act cannot be used for the political ends—The Act is meant for the benefit of the nation so that the terrorist activities do not disturb the sovereignty or integrity of the nation. (Para 31)

       (vii) Words and Phrases—Words ‘Hazardous’ and ‘Lethal’—Meanings—‘Hazardous’ means ‘Risky, Dangerous’ —‘Lethal’ means ‘deadly’. (Paras 21 and 25)

       (viii) Criminal Procedure Code, 1973—Section 406—Prevention of Terrorism Act, 2002—Sections 3/4, 50—Transfer of POTA cases from State of Uttar Pradesh—There is likelihood of miscarriage of justice—Transfer of criminal cases pending against three accused to State of MP.

       Held : 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 justice, we direct that criminal case No. 3/2003 in crime case No. 10/03 under Sections 3 & 4 of POTA Act titled as State vs. Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap Singh @ Gapalji, and case No. 113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti Social Activities (Prevention) Act, 1986 titled as State of U.P. vs. Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya & Akshya Pratap Singh pending in the Court of Special Judge (Gangster Act), Allahabad, U.P. be transferred to a Special Judge in M.P. Let the Hon. Chief Justice nominate any Special Judge to try these cases. (Para 36)