( 1 ) THE purpose of this order is merely to indicate the reasons for referring the matter to the Constitution bench.

( 2 ) SECTION 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) provides:

"5. Possession of certain unauthorised arms, etc. , in specified areas. Where any person is in possession of any arms and ammunition specified in Columns 2 and 3 of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite or other explosive substances unauthorisedly in a notified area, he 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. "

( 3 ) ACCORDING to this section, unauthorised possession of any of the specified arms and ammunition [specified in Columns 2 and 3 of Category I or Category iii (a) of Schedule I of the Arms Rules, 1962] or bombs, dynamite or other explosive substances in a notified area is sufficient by itself to attract the provision. Mens rea is not an ingredient of the offence. The non obstante clause "notwithstanding anything contained in any other law for the time being in force" gives the provision an overriding effect. The punishment for such unauthorised possession is imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life besides fine.

( 4 ) THE petitioner is one of the accused in Bombay blasts which took place on 12/3/1993 registered as Case no. 1 of 1993 on the file of the Designated court for Greater Bombay. The case of the prosecution against the petitioner, set out in the charge-sheet, is that on 16/1/1993 he

"knowingly and intentionally procured from accused Anees Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba Ibrahim Musa Chouhan, Abu Salem Abdul Qayoom Ansari and Manzoor Ahmed Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm pistol and cartridges for the purpose of committing terrorist acts. By keeping the AK-56 rifles, hand grenades, pistol and cartridges in his possession willingly, accused Sanjay Dutt facilitated the objectives. Some parts of the rifle, the 9 mm pistol and 53 rounds of live cartridges were recovered during the course of the investigation. Accused Yusuf Mohsin Nullwala, Kersi Bapuji Adenia, Rusi Framrose Mulla, Ajay Yashprakash Marwah, who caused wilful destruction of evidence namely I AK-56 rifle, one 9 mm pistol, and cartridges by deliberately removing them from the house of accused Sanjay Dutt, at his instance, with the intention to protect the offender, i. e. , Sanjay Dutt from legal consequences and therefore, they are also guilty of the offence under Section 201 Indian Penal Code. "

( 5 ) THE prosecution is relying upon the statements of the servant of the petitioner and of the police guard posted at his house and certain other circumstances. The petitioner himself made a confession to the police, which has remained unretracted till today, wherein he admitted receiving 3 AK-56 rifles on 16/1/1993 along with ammunition from the aforesaid persons but stated that 2 days after he returned 2 of them and retained only one for the purpose of self-defence. He stated that during those days the communal situation in Bombay was tense and there were constant threats to the lives and property of the petitioner and members of his family. Only with a view to defend himself in an extreme eventuality, the petitioner stated, he acquired the AK-56 rifle and that as soon as he came to know that the persons who sold the said rifle to him were implicated in the case, he instructed his people to destroy the said weapon. He stated that he did so out of fear.

( 6 ) SHRI Ram Jethmalani, learned counsel for the petitioner contends that possession of any of the arms and ammunition or other material specified in Section 5 per se does not attract Section 5. More particularly, h