important point
An activity which is sought to be punished under Section 3(1) of TADA has to be of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law.

Headnote:(a)Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 3(1) – Ingredients and conditions to be fulfilled before initiating prosecution under Section 3(1) laid down. (Para 8)
       (1994) 3 SCC 569; (1994) 4 SCC 602; (1988) 2 SCC 271; (1990) 4 SCC 76; (1999) 5 SCC 253 – Relied upon.
       (b)Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 3(1) – An activity which is sought to be punished under Section 3(1) of TADA has to be of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law – The Designated Court must not act mechanically and record conviction without examining whether or not from the evidence led by the prosecution an offence under Section 3 (1) is made out. (Para 9)
       (c)Terrorist and Disruptive Activities (Prevention) Act, 1987 – Sections 3(1) and 3(2)(ii) – The Designated Court acquitting the accused u/s 5 – Therefore, in the light of the stringent provisions as provided in Section 3(1) as well as Section 20A and strict compliance to be followed to attract Section 3(1), the conviction under Section 3(1) and punishment under Section 3(2)(ii) cannot be sustained. (Paras 22 and 23)
       Facts of the case:
       1.On the night of 08.12.1993, on secret information, the police raided the house of Uday Chetry. There was exchange of fire from both sides and thereafter Pulin Das @ Panna Koch - appellant in Crl.A.No.706 of 2007 and Mahendra Saikia @ Dilip Saikia - appellant in Crl.A. No.836 of 2007 were apprehended and arms and ammunitions were recovered from their possession.
       2.The Designated Court, Assam, Gauhati convicted the appellants herein under Section 3(2)(ii) of TADA and sentenced each of them. However, the Designated Court acquitted the accused persons under Section 5 of the TADA Act.
       Findings of the Court:
       The prosecution has miserably failed to establish the charge levelled against both the accused.
       Result : Appeals allowed.

JUDGMENT

P. Sathasivam, J. –

1.These appeals, under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “the TADA Act”) are directed against the common judgment dated 19.04.2007 of the Designated Judge at Assam, Gauhati in TADA Sessions Case No. 1 of 1996 whereby the Designated Judge convicted Pulin Das @ Panna Koch appellant in Criminal Appeal No.706 of 2007 and Mahendra Saikia @ Dilip Saikia appellant in Criminal Appeal No. 836 of 2007 for offences under Section 3(2)(ii) of the TADA Act and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/-, in default further R.I. for another six months.

2.Brief facts, in a nutshell, are as follows :

On the night of 08.12.1993, on secret information, the police party under the leadership of S.P. Sonitpur and S.D.P.O., Bishwanath Chariali raided the house of Uday Chetry. It was alleged that the extremist fired upon the police party and the police party also fired in self-defence and as such there was exchange of fire from both sides and thereafter Pulin Das @ Panna Koch appellant in Crl.A.No. 706 of 2007 and Mahendra Saikia @ Dilip Saikia appellant in Crl.A. No.836 of 2007 were apprehended and arms and ammunitions were recovered from their possession. On the basis of the above incident, an F.I.R. No.187/1993 was recorded and the police registered a case under Sections 3/4/5 of the TADA Act. On 17.12.1995, Charge Sheet No.101 of 1995 in FIR No.187/1993 was filed against both the accused. On 30.08.2006, statements of the appellants-accused were recorded under Section 313 of the Criminal Procedure Code. The prosecution examined nine witnesses in support of its case and exhibited the seizure list (Ex.1), the FIR (Ex.2), the sketch map(Ex.3), the expert report (Ex.4), prosecution sanction(Ex.5) and the charge sheet (Ex.6) and also exhibited the seized arms and ammunitions (Mat. Ex.1-4). The Designated Court, Assam, Gauhati convicted the appellants herein under Section 3(2)(ii) of TADA and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/-, in default further rigorous imprisonment for another six months. However, the Designated Court acquitted the accused persons under Section 5 of the TADA Act as there was no evidence available for possession of unauthorized arms and ammunition. Being aggrieved by the said judgment, the appellants preferred separate appeals before this Court.

3.Heard Mr. Nitin Sangra, learned counsel, for the appellant in Criminal Appeal No.706 of 2007 and Mr. Vijay Hansaria, learned senior counsel, for the appellant in Criminal Appeal No.836 of 2007 and Mr. Avijit Roy, learned counsel, appearing for the State of Assam.

4.Since both the appellants/accused were convicted only under Section 3(2)(ii) of the TADA Act, it is useful to refer to the said provision.

“3.Punishment for terrorist acts. (1) Whoever with intent to overawe the Government as by law established or to strike terror in the 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 firearms 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 any other person to do or abstain from doing any act, commits a terrorist act.

(2)Whoever commits a terrorist act, shall,

(i)if such act has resulted in the death of any person, be punishable with death or im

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2008 Supreme(SC) 324

important pointAn activity which is sought to be punished under Section 3(1) of TADA has to be of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law.

Cases Referred (5)

important point
An activity which is sought to be punished under Section 3(1) of TADA has to be of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law.