1994 Supreme(SC) 891

SUPREME COURT OF INDIA
A. M. AHMADI, J. S. VERMA, P. B. SAWANT, B. P. JEEVAN REDDY AND N. P. SINGH, JJ.
Spl. Leave Petns. (Cri.) Nos. 1834-35 of 1994
Decided on 9-9-1994.
Sanjay Dutt, Petitioner
Versus
The State, through C.B.I., Bombay, Respondent.
Advocates appeared
Mr. Kapil Sibal, Sr. Advocate, Mr. C. B. Wadhwa, Mr. A. K. Sahu, Mr. Manmohan, Ms. Rashmi Kathpalia and Ms. Lata Krishnamurti, Advocate with him, for Petitioner: Mr. K.T.S. Tulsi, Addl. Solicitor General and Mr. N. Natarajan, Sr. Advocate and Dr. V. K. Agarwal, Addl. Secy.. Mr. P. Parmeswaran and Mr. Krishan Mahajan, Advocates with them, for Respondent.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 5 and 2(1)(f) Arms Rules, 1962 - Columns 2 and 3 of category l or III (a) of Schedule 1 - Possession of certain unauthorised arms, etc., in specified areas Prosecution is required to prove that the accused was in conscious possession, unauthorisedly in a notified area of any of the specified arms and ammunition etc., - Statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act - Rebuttable presumption - Accused in his defence is entitled to prove the non-existence of a fact constituting any of these ingredients - If the accused succeeds in proving the absence of the third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishable only under the general law by virtue of Section 12 and not u/s. 5 of the Act.

       Held: A notified area is treated to be more prone to commission and escalation of terrorist and disruptive activities. This is the basis for classification of a notified area differently from the non-notified areas and it has a reasonable nexus with the object of classification. Such activities must, therefore, have a bearing on the constitution of any special offence confined to that area. Declaration of a specified area as a notified area by the State Government is based on its satisfaction, subjective in nature that the area is prone to terrorist and disruptive activities and its escalation. This opinion of the State Government has to be formed necessarily with reference to facts relating to incidents of terrorist and disruptive activities, for the prevention of which check on the influx of the specified arms and ammunition etc. in that area, is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as notified area has to be presumed for the purposes of Section 5 for otherwise it would be put to proof in every case. This is the true significance of the third ingredient of the offence under Section 5. (Para 25)

       The significance of unauthorised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or disruptive act. This is so, because of the proneness of the area to terrorist and disruptive activities, the lethal and hazardous nature of the weapon and its unauthorised possession with this awareness, within a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption. (Para 26)

       The position which emerges is this. For constituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved unauthorised conscious possession of any of the specified arms and ammunition etc. in a notified area by the accused, the conviction would follow on the strength of the presumption unless the accused proves the non-existence of a fact essential to constitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution. (Para 27)

       There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non-existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and its availability in a notified area was innocuous. Whatever be the extent of burden on the accused to prove the nonexistence of the third ingredient, as a matter of law he has such a right which flows from the basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving nonexistence of the facts necessary to constitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc, in a notified area is proved by the prosecution, then he cannot be convicted under Section 5 of the TADA Act and would be dealt with and punished under the general law. It is obviously to meet situations of this kind that Section 12 was incorporated in the TADA Act. (Para 28)

       The non-obstante clause in Section 5 of the Tada Act shows that within a notified area, the general law relating to unauthorised possession of any of the specified arms and ammunition etc. is superseded by the special enactment for that area, namely, the TADA Act. If however the third ingredient to constitute the offence under Section 5 of the TADA Act is negatived by the accused while the first two ingredients are proved to make out an offence punishable under the general law, namely, the Arms Act, then the Designated Court is empowered to deal with the situation in accordance with Section 12 of the TADA Act Section 12 itself shows that the Parliament envisaged a situation in which a person tried under the TADA Act of any offence may ultimately be found to have committed any other offence punishable under any other law and in that situation, the Designated Court is empowered to punish the accused for the offence under such other law. The offence under Section 5 of the TADA Act is graver and visited with more severe punishment as compared to the corresponding offence under the general law. This is because of the greater propensity of misuse of such arms and ammunition etc. for a terrorist or disruptive act within a notified area. If the assumed propensity of such use is negatived by the accused, the offence gets reduced to one under the general law and is punishable only thereunder. In such a situation, the accused is punished in the same manner as any other person found to be in unauthorised possession of any such arms and ammunition etc. outside a notified area. The presumption in law is of the greater and natural danger arising from its unauthorised possession within a notified area more prone to terrorist or disruptive activities. (Para 29)

       Further Held: On proof of possession alone and not also its use, the statutory presumption which arises is of the lesser offence under Section 5 and that too when the possession is unauthorised within a notified area, which is more prone to terrorist or disruptive activities. The presumption arising of the commission of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable and the accused can even then prove the non-existence of a fact essential to constitute an ingredient of the offence under Section 3. On the same principle, the statutory presumption arising of the lesser offence under Section 5 on proof of the fact of unauthorised possession in a notified area would be rebuttable presumption enabling the accused to prove that the weapon was not meant for use for any terrorist or disruptive act. Where its actual use in addition to the possession has been proved, the presumption is of an offence tinder Section 3 and burden on the accused is to prove the non-existence of any fact required for constituting an ingredient of the offence under Section 3. The distinction ~at an offence under Section 3 can be committed anywhere but that under Section 5 only within a notified area, is also significant. Enactment of Section 21 also supports the view that the statutory presumption arising of commission of an offence under Section 5, on proof of the requisite facts, is a rebuttable and not an irrebutable presumption. If the presumption arising of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable, there can be no reason why presumption of the offence under Section 5 would be irrebuttable and not rebuttable. After all the offence under Section 5 is less serious than that under Section 3 of the Act. This construction is also preferable because the statute is penal in nature. The nature and extent of burden on the accused to rebut the statutory presumption under Section 5 is the same as in case of the presumption arising by virtue of Section 21 of an offence under Section 3 of the Act (Para 31)

       It is a settled rule of criminal jurisprudence that the burden on an accused of proving a fact for rebutting a statutory presumption in his defence is not as heavy as on the prosecution to prove its case beyond reasonable doubt but the lighter burden of proving the greater probability. Thus, the burden on the accused of rebutting the statutory presumption which arises against him under Section 5 of the TADA Acton proof by the prosecution, that the accused was in unauthorised possession of any of the specified arms and ammunition etc. within a notified area, is of greater probability. When the prosecution has proved these facts, it has to do nothing more and conviction under Section 5 of the TADA Act must follow unless the accused rebuts the statutory presumption by proving that any such arms and ammunition etc. was neither used nor was meant to be used for a terrorist or disruptive activity. No further nexus of his unauthorised possession of the same with any specific terrorist or disruptive activity is required to be proved by the prosecution for proving the offence under Section 5 of the TADA Act. The nexus is implicit, unless rebutted, from the fact of unauthorised conscious possession of any such weapon etc. within a notified area and the inherent lethal and hazardous nature and potential of the same. (Para 37)

        (ii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20(4)(bb) Criminal Procedure Code, 1973 - Section 167(1) - Nature of right of an accused to be released on bail thereunder, on default to complete investigation within the time allowed - Requirement of notice to the accused before granting extension for completing the investigation - Written notice not required - Production of the accused at that ,time in the court informing him that the question of extension is being considered, is sufficient for the purpose. (Paras 43 & 50)

        (iii) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20(4)(bb) Criminal Procedure Code, 1973 - Section 167(2) - Indefeasible right of the accused to be released on bail in default of completion of investigation and filing of the challan within the time allowed - The right is enforceable by the accused only from the time of default till the filing of the challan - It does not survive or remain enforceable on the challan being filed Accused, so released on bail may be arrested and committed to custody - Right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. (Paras 43 and 50)