IMPORTANT POINTS
1. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional.
2. Confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material.
3. Mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence.

Headnote:Terrorist and Disruptive Activities (Prevention) Act, 1987- Conviction of appellant under Section 3(5) of TADA which makes mere membership of a banned organization a criminal act-Prosecution case that one A went missing from the evening of 6.11.1991, and his dead body was recovered after two months on 19.1.1992 from the river Dishang- Five persons including the appellant were charged for his death- The appellant was not named in the FIR- No prosecution witness had attributed any role to the appellant- The charge sheet in the case was filed after a gap of nine years from the date of the commission of the offence, and charges were framed more than four years after filing of the charge sheet- There was no evidence against appellant except confessional statement- The alleged confession was subsequently retracted by appellant- The alleged confession was not corroborated by any other material-Relying upon decision in case of Arup Bhuyan vs. State of Assam held that confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material- Again Mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence- Even assuming that appellant was a member of ULFA which was a banned organization, there was no evidence to show that he did acts of the nature above mentioned-Thus, even if he was a member of ULFA it had not been proved that he was an active member and not merely a passive member-Impugned judgement set aside –Appeal allowed. (Paras 3 to 7, 45)
       Facts of the Case :
        Appellant herein in the instant case was convicted under Section 3(5) of TADA .Prosecution case that one A went missing from the evening of 6.11.1991, and his dead body was recovered after two months on 19.1.1992 from the river Dishang. Five persons including the appellant were charged for his death. The appellant was not named in the FIR. No prosecution witness had attributed any role to the appellant. The charge sheet in the case was filed after a gap of nine years from the date of the commission of the offence, and charges were framed more than four years after filing of the charge sheet. There was no evidence against appellant except confessional statement. The alleged confession was subsequently retracted by appellant. The alleged confession was not corroborated by any other material.
       Findings of the Court :
        Relying upon decision in case of Arup Bhuyan vs. State of Assam it was held that confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material. Again Mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. Even assuming that appellant was a member of ULFA which was a banned organization, there was no evidence to show that he did acts of the nature above mentioned.Thus, even if he was a member of ULFA it had not been proved that he was an active member and not merely a passive member.Impugned judgement was set aside .Appeal was allowed.

JUDGMENT

Markandey Katju, J. —

1. Heard learned counsel for the appellant. Service of Notice of Lodgment of petition of Appeal is complete, but no one has entered appearance on behalf of the sole respondent-State.

2. The facts of the case are similar to the facts in Arup Bhuyan vs. State of Assam1 Criminal Appeal No.889 of 2007, which we allowed on 3.2.2011.

3. As in the case of Arup Bhuyan (supra), the only evidence against the appellant in this case is his alleged confession made to a police officer, for which he was charged under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short ‘TADA’).

4. The facts of the case are that one Anil Kumar Das went missing from the evening of 6.11.1991, and his dead body was recovered after two months on 19.1.1992 from the river Dishang. Five persons including the appellant were charged for his death. The appellant was not named in the FIR. No prosecution witness has attributed any role to the appellant. The charge sheet in the case was filed after a gap of nine years from the date of the commission of the offence, and charges were framed more than four years after filing of the charge sheet. There is no evidence against the appellant except the confessional statement.

5. The alleged confession was subsequently retracted by the appellant. The alleged confession was not corroborated by any other material. We have held in Arup Bhuyan’s case (supra) that confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material. In the present case there is no corroborative material.

6. However, the appellant has been convicted under Section 3(5) of TADA which makes mere membership of a banned organization a criminal act, and sentenced to five years rigorous imprisonment and Rs.2000/- fine.

7. In Arup Bhuyan’s case (supra) we have stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organization, there is no evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyan’s case (supra) squarely applies in this case.

8. In our judgment in State of Kerala vs. Raneef2 2011(1) Scale 8 we had referred to the judgment of the U.S. Supreme Court in Elfbrandt vs. Russell3 384 US 17(1966) which rejected the doctrine of ‘guilt by association’.

9. In Elfbrandt’s case (supra) Mr. Justice Douglas, speaking for the Court observed:

“Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat. This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States by the Fourteenth Amendment. .........A law which applies to membership without the `specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association’ which has no place here.”

10. The decision relied on its earlier judgments in Schneiderman vs. U.S.4 320 US 118(136) and Schware vs. Board of Bar Examiners5 353 US 232(246). The judgment in Elfbrandt’s case (supra) also referred to the decision of the U.S. Supreme Court in Scales vs. U.S.6 367 US 203 (229) which made a distinction between an active and a passive member of an organization.

11. In Scales case (supra) Mr. Justice Harlan of the U.S. Supreme Court observed :

“The clause (in the McCarran Act, 1950) does not make criminal all associations with an organizatio

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2011 Supreme(SC) 168

2011 (2) Supreme 67SUPREME COURT OF INDIAMarkandey Katju and Gyan Sudha Misra, JJ.Sri Indra Das — Appellant(s)versusState of Assam — Respondent(s)Criminal Appeal No.1383 of 2007Decided on : 10-2-2011

Cases Referred (14)

2011 (2) Supreme 67
SUPREME COURT OF INDIA
Markandey Katju and Gyan Sudha Misra, JJ.
Sri Indra Das — Appellant(s)
versus
State of Assam — Respondent(s)
Criminal Appeal No.1383 of 2007
Decided on : 10-2-2011