Sanjay Dutt VS State through CBI, Bombay

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

SUPREME COURT OF INDIA
B.P. Jeevan Reddy and N.P. Singh, JJ.
Sanjay Dutt - Petitioner
versus
State through CBI, Bombay - Respondent
S.L.P. (Crl.) Nos. 1834-35 of 1994
Decided on 18.8.1994
Counsel for the parties:
For the Petitioner - Ram Jethmalani, Shanti
Bhushan, Kapil Sibal, Rajinder Singh, Sr. Advocates S.B. Jaisinghani, etc. etc.
For the Respondent - G. Natarajan, Sr. Adv. V.K. Agarwal & P. Parmeswaran, Advocates.
Caveator in person:
For the State of Maharashtra - A.S. Bhasme.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 5 - Possession of certain unauthorised arms, etc. in specified areas - Interpretation of the provision. Matter referred to the Constitution Bench.
       Held: Learned counsel urges that before a person is charged for having committed a terrorist and act, it must be alleged that committed any of the acts specified in sub-section (1) of Section 3. Similarly, any person, who is being charged for conspiracy, his actions must have nexus with the can objects mentioned in sub-section (1) of Section 3. the Section 5 does not say that the accused concerned the found in possession of any arms and ammunitions 305 specified, must be in possession of the same for be any of the objects mentioned in sub-section (1) of Section 3. But unless the possession of the arms and ammunitions specified in Section 5 are related or connected with any of the objects mentioned in sub-section (1) of Section 3, the accused shall not be deemed to be a 'terrorist' within the acc meaning of the Act and the possession of any arms has and ammunitions specified therein, shall not be XX deemed to be a 'terrorist act', says Sri Jethmalani. He relies upon the observations in the concurring (2) opinion of R.M. Sahai, J. in Kartar Singh. (Para 7)
       Further Held: Because the interpretation placed upon Section 5 by the learned Judge amounts to reading words into Section 5 which arc not there and further because interpretation of Section 5 one way or the other is likely to affect a large number of cases in the country, we think it appropriate that the matter is pronounced upon by the Constitution Bench so as to authoritatively settle the issue. (Para 8)
       (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20(4)(bb) - Criminal Procedure Code, 1973 - Section 167 - Charge sheet filed beyond six months of petitioner's arrest - No order extending his detention made by the Designated Court with notice to the petitioner, before the expiry of 180 days - Claim of indefeasible right of petitioner to be enlarged on bail soon upon the expiry of 180 days. View taken by the Division Bench in Hitendra Vishnu Thakur case calls for a reconsideration - Meaning and effect of Section 167 has to be authoritatively pronounced upon - Matter referred to the Constitution Bench.
       Held: It has been said in the said judgment that after the expiry of the statutory period mentioned in proviso to sub-section (2) of Section 167 and sub-section (4) of Section 20 of the TADA an 'indefeasible right' is created in an accused person on account of the default by the investigating agency in the completion of the investigation. But can such a right be exercised by an accused who in the meantime has been remanded to custody under other provisions of the Code like Section 309(2) and Section 209(b) of the Code. It need not be pointed out that Section 167 is a provision regarding authorizing detention of an accused in custody during investigation. After that expiry of the statutory period mentioned therein, if the investigation is not concluded the accused becomes entitled to be released on bail. When such accused is released, then it shall be deemed that he has been released under the provisions of Chapter XXXIII of the Code. According to us, the right to be released on bail under proviso to sub-section (2) of Section 167, accrues to an accused at a particular stage. But can it be held to be an 'indefeasible right' which can be exercised at any stage including the stage of trial? Even a Habeas Corpus application on the ground that there is no valid order of remand or detention of the accused to custody, has to be dismissed, if it is found that on the date of the return of the Rule, the accused is in custody on the basis of a valid order of remand or detention. (Para 12)
       Result: Ordered accordingly. Prayer for release on interim bail rejected.

ORDER

B.P. Jeevan Reddy, J. - 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-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. Mensrea 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 over-riding 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 Blast 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 16th January, 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 willful destruction of evidence namely 1 AK-56 rifle, one 9 m.m. 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 u/s 201 I.P.C.".

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 was remained unretracted till today, wherein he admitted receiving three AK-56 rifles on 16.1.1993 along with ammunition from the aforesaid persons but stated that two days after he returned two 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 put of fear.

6. Sri Ram Jethmalani, learned counsel for the petitioner contends that possession of any of the arms and ammunitions or other material specified in Section 5 per se does not attract Section 5. More part

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