Union for Civil Liberties & Anr Vs. Union of India  Insc
644 (16 December 2003)
+ 3 389 2002 ! People's Union
for Civil Liberties & Anr. Union of India @ DECEMBER
RAJENDRA BABU & G.P. MATHUR & [With W.P.(Crl.) 89/2002, W.P.(Crl.)
129/2002, W.P.(Crl.) 28/2003 & W.P.(Crl.) 48/2003] RAJENDRA BABU, J. :
No. 389/2002 & W.P.(Crl) No.89/2002 :
this batch of Writ Petitions before us the Constitutional validity of various
provisions of the Prevention of Terrorism Act, 2002 (hereinafter POTA) is in
Petitioners' contended before us that since the provisions of POTA, in pith and
substance, fall under the Entry 1 (Public Order) of List II Parliament lacks
legislative competence. To authenticate this contention, the decision in Rehman
Shagoo & others V. State of Jammu Kashmir, 1960 (1) SCR 680, is relied
to them, the menace of terrorism is covered by the Entry "Public
Order" and to explain the meaning thereof, our attention is invited to
decisions in Romesh Thaper V. State of Madras, 1950 SCR 594, Dr. Ram Manohar Lohia
V. State of Bihar, 1966 (1) SCR 709, and Madhu Limaye V. SDM, Monghyr, (1970) 3
SCC 746. The Petitioners thus submitted that terrorist activity is confined
only to State(s) and therefore State(s) only have the competence to enact a
learned Attorney General refuting this contention submitted that acts of
terrorism, which are aimed at weakening the sovereignty and integrity of the
country cannot be equated with mere breaches of law and order and disturbances
of public order or public safety. He argued that the concept of
"sovereignty and integrity of India" is distinct and separate from the concepts of "public
order" or "security of State" which fall under List II enabling
States to enact legislation relating to public order or safety affecting or
relating to a particular State. Therefore, the legislative competence of a
State to enact laws for its security cannot denude Parliament of its competence
under List I to enact laws to safeguard national security and sovereignty of
India by preventing and punishing acts of terrorism. Learned Attorney General
distinguished the decision in Rehman Shagoo and submitted that the legislation
dealt with therein is fundamentally and qualitatively different from POTA. He
also argued before us that Rehman Shagoo cannot mitigate the binding ratio and
unanimous conclusion reached by this Court on the point of legislative
competence in Kartar Singh V. State of Punjab, 1994 (3) SCC 569 = 1994 (2) SCR
375, that Parliament can enact such law.
deciding the point of legislative competence, it is necessary to understand the
contextual backdrop that led to the enactment of POTA, which aims to combat
terrorism. Terrorism has become the most worrying feature of the contemporary
life. Though violent behavior is not new, the present day 'terrorism' in its
full incarnation has obtained a different character and poses extraordinary
challenges to the civilized world. The basic edifices of a modern State, like -
democracy, state security, rule of law, sovereignty and integrity, basic human
rights etc are under the attack of terrorism. Though the phenomenon of
terrorism is complex, a 'terrorist act' is easily identifiable when it does
occur. The core meaning of the term is clear even if its exact frontiers are
not. That is why the anti-terrorist statutes - the earlier Terrorism and
Disruptive Activities (Prevention) Act, 1987 (TADA) and now POTA do not define
'terrorism' but only 'terrorist acts.' (See : Hitendra Vishnu Thakur V. State
of Maharashtra, (1994) 4 SCC 602).
Wilkinson, an authority on terrorism related works, culled out five major
characteristics of terrorism. They are:
is premeditated and aims to create a climate of extreme fear or terror.
is directed at a wider audience or target than the immediate victims of
inherently involves attacks on random and symbolic targets, including
acts of violence committed are seen by the society in which they occur as extra-normal,
in literal sense that they breach the social norms, thus causing a sense of
Terrorism is used to influence political behavior in some way - for example to
force opponents into conceding some or all of the perpetrators demands, to
provoke an over-reaction, to serve as a catalysis for more general conflict, or
to publicize a political cause.
acts of terrorism, it is mainly the psychological element that distinguishes it
from other political offences, which are invariably accompanied with violence
and disorder. Fear is induced not merely by making civilians the direct target
of violence but also by exposing them to a sense of insecurity. It is in this
context that this Court held in Mohd. Iqbal M. Shaikh V. State of Maharashtra,
(1998) 4 SCC 494, that:
is not possible to give a precise definition of terrorism or to lay down what
constitutes terrorism. But... it may be possible to describe it as a use of
violence when its most important result is not merely the physical and mental
damage of the victim but the prolonged psychological effect it produces or has
the potential of producing on the society as a whole. ... if the object of the
activity is to disturb harmony of the society or to terrorize people and the
society, with a view to disturb even tempo, tranquility of the society, and a
sense of fear and insecurity is created in the minds of a section of society at
large, then it will, undoubtedly be held to be terrorist act..." Our
country has been the victim of an undeclared war by the epicenters of terrorism
with the aid of well-knit and resourceful terrorist organizations engaged in
terrorist activities in different States such as Jammu & Kashmir, North- East States, Delhi, West
Bengal, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh. The learned Attorney General
placed material to point out that the year 2002 witnessed 4038 terrorist
related violent incidents in J&K in which 1008 civilians and 453 security
personnel were killed. The number of terrorist killed in 2002 was 1707 out of
which 508 were foreigners. In the year 2001 there were as many as 28 suicide
attacks while there were over 10 suicide attacks in 2002 in which innocent
persons and a large number of women and children were killed. The major
terrorist incidents in the recent past includes attack on Indian Parliament on
13th December 2001, attack on Jammu & Kashmir Assembly on 1st October,
2001, attack on Akshardham temple on 24th September 2002, attack on US
Information Center at Kolkatta on 22nd January 2002, Srinagar CRPF Camp attack
on 22nd November 2002, IED blast near Jawahar Tunnel on 23rd November 2002,
attack on Raghunath Mandir on 24th November 2002, bus bomb blast at Ghatkopar
in Mumbai on 2nd December 2002, attack on villagers in Nadimarg in Pulwama
District in Jammu Kashmir on the night of 23rd-24th March 2003 etc. There were
attacks in Red Fort and on several Government Installations, security forces'
camps and in public places. Gujarat
witnessed gruesome carnage of innocent people by unleashing unprecedented orgy
of terror. People in Bihar, Andhra Pradesh, and Maharashtra
etc have also experienced the terror trauma. The latest addition to this long
list of terror is the recent twin blast at Mumbai that claimed about 50 lives.
It is not necessary to swell this opinion by narrating all the sad episodes of
terrorist activities that the country has witnessed.
these terrorist strikes have certain common features. It could be very broadly
grouped into three.
Attack on the institution of democracy, which is the very basis of our country.
(By attacking Parliament, Legislative Assembly etc).
the attack on economic system by targeting economic nerve centers.
Attack on symbols of national pride and on security / strategic installations.
(eg. Red Fort, Military installations and camps, Radio stations etc.)
Attack on civilians to generate terror and fear psychosis among the general
attack at worshipping places to injure sentiments and to whip communal
passions. These are designed to position the people against the government by
creating a feeling of insecurity.
acts are meant to destabilize the nation by challenging its sovereignty and
integrity, to raze the constitutional principles that we hold dear, to create a
psyche of fear and anarchism among common people, to tear apart the secular
fabric, to overthrow democratically elected government, to promote prejudice
and bigotry, to demoralize the security forces, to thwart the economic progress
and development and so on.
be equated with a usual law and order problem within a State. On the other
hand, it is inter-state, inter-national or cross-border in character. Fight
against the overt and covert acts of terrorism is not a regular criminal
justice endeavor. Rather it is defence of our nation and its citizens. It is a
challenge to the whole nation and invisible force of Indianness that binds this
great nation together. Therefore, terrorism is a new challenge for law
enforcement. By indulging in terrorist activities organized groups or
individuals, trained, inspired and supported by fundamentalists and anti-Indian
elements were trying to destabilize the country. This new breed of menace was
hitherto unheard of. Terrorism is definitely a criminal act, but it is much more
than mere criminality. Today, the government is charged with the duty of
protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside
and within borders.
face terrorism we need new approaches, techniques, weapons, expertise and of
course new laws. In the above said circumstances Parliament felt that a new
anti-terrorism law is necessary for a better future. This parliamentary resolve
is epitomized in POTA.
terrorist threat that we are facing is now on an unprecedented global scale.
Terrorism has become a global threat with global effects. It has become a
challenge to the whole community of civilized nations. Terrorist activities in
one country may take on a transnational character, carrying out attacks across
one border, receiving funding from private parties or a government across another,
and procuring arms from multiple sources. Terrorism in a single country can
readily become a threat to regional peace and security owing to its spillover
effects. It is therefore difficult in the present context to draw sharp
distinctions between domestic and international terrorism. Many happenings in
the recent past caused the international community to focus on the issue of
terrorism with renewed intensity. The Security Council unanimously passed
resolutions 1368 (2001) and 1373 (2001); the General Assembly adopted
resolution 56/1 by consensus, and convened a special session. All these
resolutions and declarations inter alia call upon Member States to take
necessary steps to 'prevent and suppress terrorist acts' and also to 'prevent
and suppress the financing of terrorist acts.' India is a party to all these resolves. Anti-terrorism activities
in the global level are mainly carried out through bilateral and multilateral cooperation
among nations. It has thus become our international obligation also to pass
necessary laws to fight terrorism.
attempts by the State to prevent terrorism should be based on well-established
legal principles. The 'Report of the Policy Working Group of the United Nations
and Terrorism' urged the global community to concentrate on a triple strategy
to fight against terrorism. They are:
Dissuade disaffected groups from embracing terrorism;
Deny groups or individuals the means to carry out acts of terrorism; and
Sustain broad-based international cooperation in the struggle against
the anti-terrorism laws should be capable of dissuading individuals or groups
from resorting to terrorism, denying the opportunities for the commission of
acts of terrorism by creating inhospitable environments for terrorism and also
leading the struggle against terrorism. Anti - terrorism law is not only a
penal statue but also focuses on pre-emptive rather than defensive State
action. At the same time in the light of global terrorist threats, collective
global action is necessary. Lord Woolf CJ in A, X and Y, and another V.
Secretary of the State for the Home Department (Neutral Citation Number:
EWCA Civ. 1502) has pointed out that "...Where international terrorists
are operating globally and committing acts designed to terrorize the population
in one country, that can have implications which threaten the life of another.
is why a collective approach to terrorism is important." Parliament has
passed POTA by taking all these aspects into account. The terrorism is not
confined to the borders of the country. Cross- border terrorism is also
threatening the country.
meet such a situation, a law can be enacted only by Parliament and not by a
the Prevention of Terrorism Bill in the joint session of Parliament on March
26, 2002 Hon'ble Home Minister said:
Government of India has been convinced for the last four years that we have
been here and I am sure even the earlier Governments held that terrorism and
more particularly, State-sponsored cross border terrorism is a kind of war. It
is not just a law and order problem. This is the first factor, which has been
responsible for Government thinking in terms of an extraordinary law like POTO.
first of all, the question that I would like to pose to all of you and which we
have posed to the nation is: 'Is it just in Jammu and Kashmir an aggravated law
and order situation that we are facing or is it really when we say it a proxy
war, do we really believe that it is a proxy war?'...But when you have
terrorist organizations being trained, financed by a State and it becomes
State-sponsored terrorism and all of them are enabled to infiltrate into our
country, it becomes a challenge of a qualitatively different nature..."
(Emphasis supplied) >From this it could be gathered that Parliament has
explored the possibility of employing the existing laws to tackle terrorism and
arrived at the conclusion that the existing laws are not capable. It is also
clear to Parliament that terrorism is not a usual law and order problem.
protection and promotion of human rights under the rule of law is essential in
the prevention of terrorism. Here comes the role of law and Court's
responsibility. If human rights are violated in the process of combating
terrorism, it will be self-defeating. Terrorism often thrives where human
rights are violated, which adds to the need to strengthen action to combat
violations of human rights. The lack of hope for justice provides breeding
grounds for terrorism.
itself should also be understood as an assault on basic rights. In all cases,
the fight against terrorism must be respectful to the human rights. Our
Constitution laid down clear limitations on the State actions within the
context of the fight against terrorism. To maintain this delicate balance by
protecting 'core' Human Rights is the responsibility of Court in a matter like
soundness of POTA needs to be judged by keeping these aspects in mind.
we will revert to the issue of legislative competence. Relying on Rehman Shagoo
Petitioners argued that Parliament lacks competence since the 'terrorism' in
pith and substance covered under the Entry 1 (Public Order) of List II.
Conclusion of this contention depends upon the true meaning of the Entry -
constitution Bench of this Court in Rehman Shagoo examined the
constitutionality of the Enemy Agents (Ordinance), No. VIII of S. 2005
promulgated by His Highness the Maharaja under Section 5 of Jammu Kashmir Constitution Act, S. 1996. For a proper understanding of the ratio in Rehman
Shagoo, it is necessary to understand the background in which the impugned
Ordinance was promulgated. (See : Prem Nath Kaul V. The State of Jammu &
Kashmir, 1959 Supp. (2) SCR 270, to understand the background that prevailed in
the then Kashmir). Because any interpretation
divorced from the context and purpose will lead to bad conclusions. It is a
well- established canon of interpretation that the meaning of a word should be
understood and applied in accordance with the context of time, social and
conditional needs. Rehman Shagoo was concerned with the interpretation of
Instrument of Accession and the power of Maharaja to issue the impugned
Ordinance therein. The same was promulgated to protect the state of Kashmir from external raiders and to punish
them and those who assist them. The situation that prevailed during the latter
half of 1940s is fundamentally different form today. The circumstances of
independence, partition, state re-organization, and the peculiar situation
prevailing in the then Kashmir etc. need to be taken into account.
It is only in that context this Court said in Rehman Shagoo that the impugned
...In pith and substance deals with public order and criminal law procedure;
the mere fact that there is an indirect impact on armed forces in s. 3 of the
Ordinance will not make it in pith and substance a law covered by item (1)
under the head 'Defence' in the Schedule." Therefore, Rehman Shagoo is
distinguishable and cannot be used as an authority to challenge the competence
of Parliament to pass POTA. The problems that prevailed in India immediately after independence
cannot be compared with the menace of terrorism that we are facing in the
twenty first century. As we have already discussed above, the present day
problem of terrorism is affecting the security and sovereignty of the nation.
It is not State specific but trans-national. Only Parliament can make a
legislation to meet its challenge. Moreover, the entry 'Public Order' in the
State List only empowers the States to enact a legislation relating to public
order or security in so far as it affects or relates to a particular State. How
so ever wide a meaning is assigned to the Entry 'Public Order', the present day
problem of terrorism cannot be brought under the same by any stretch of
imagination. Thus, Romesh Thaper, Dr. Ram Manohar Lohia and Madhu Limaye (all
cited earlier) cannot be resorted to read 'terrorism' into 'Public Order'.
Since the Entry Public Order or any other Entries in List II do not cover the
situation dealt with in POTA, the legislative competence of Parliament cannot
a Constitution Bench of this Court, while dealing with the very same argument,
held in Kartar Singh's case (supra) as follows:
regard to the limitation placed by Article 245 (1) on the legislative power of
the Legislature of the State in the matter of enactment of laws having application
within the territorial limits of the State only, the ambit of the field of
legislation with respect to 'public order' under Entry 1 in the State List has
to be confined to disorders of lesser gravity having an impact within the
boundaries of the State. Activities of a more serious nature which threaten the
security and integrity of the country as a whole would not be within the
legislative field assigned to the States under Entry 1 of the State List but
would fall within the ambit of Entry 1 of the Union List relating to defence of
India and in any event under the residuary power conferred on Parliament under
Article 248 read with Entry 97 of the Union List.
terrorism, the Act (TADA) contemplates, cannot be classified as mere
disturbances of 'public order' disturbing the 'even tempo of the life of
community of any specified locality' - in the words of Hidayathulla, C J in Arun
Ghosh v. State of West Bengal (1970) 1 SCC 98 but it is much more, rather a
grave emergent situation created either by external forces particularly at the
frontiers of this country or by anti- nationals throwing a challenge to the
very existence and sovereignty of the country in its democratic polity.
view, the impugned legislation does not fall under Entry 1 of List II, namely,
Public Order. No other Entry in List II has been invoked. The impugned Act,
therefore, falls within the legislative competence of Parliament in view of
Article 248 read with Entry 97 of List I and it is not necessary to consider
whether it falls under any of the entries in List I or List III. We are,
however, of the opinion that the impugned Act could fall within the ambit of
Entry 1 of List I, namely, 'Defence of India'." [pp. 633, 634, 635] While
this is the view of the majority of Judges in Kartar Singh's case (supra), K. Ramaswamy,J.
held that Parliament does possess power under Article 248 and Entry 97 of List
I of the Seventh Schedule and could also come within the ambit of Entry 1 of
List III. Sahai,J. held that the legislation could be upheld under Entry 1 of
List III. Thus, all the Judges are of the unanimous opinion that Parliament had
legislative competence though for different reasons.
all the above said aspects, the challenge advanced by Petitioners of want of
legislative competence of Parliament to enact POTA is not tenable.
issue that the Petitioner has raised at the threshold is the alleged misuse of
TADA and the large number of acquittals of the accused charged under TADA. Here
we would like to point out that this Court cannot go into and examine the
'need' of POTA. It is a matter of policy. Once legislation is passed the
Government has an obligation to exercise all available options to prevent
terrorism within the bounds of the Constitution. Moreover, we would like to
point out that this Court has repeatedly held that mere possibility of abuse
cannot be counted as a ground for denying the vesting of powers or for
declaring a statute unconstitutional. (See: State of Rajasthan V. Union of
India, (1978) 1 SCR 1, Collector of Customs V. Nathella Sampathu Chetty, AIR
1962 SC 316, Keshavananda Bharati V. State of Kerala, 1973 (4) SCC 225; Mafatlal
Industries V. Union of India, (1997) 5 SCC 536 etc).
of the word 'abets' in the context of POTA:
to the validity of individual sections, petitioners primarily contended that
Section 3(3) of POTA provides that whoever 'abets' a terrorist act or any
preparatory act to a terrorist act shall be punishable and this provision,
fails to address the requirement of 'mens rea' element. They added that this
provision has been incorporated in POTA in spite of the contrary observation of
this Court in Kartar Singh, wherein it was held that the word 'abets' need to
have the requisites of intention or knowledge.
they want us to strike down Section 3(3) as the same is prone to misuse.
Singh, this Court was concerned with the expression "abet" as defined
under Section 2(1)(a) of TADA and hence considered the effect of different
provisions of the TADA to ascertain true meaning thereof. As the meaning of the
word "abet" as defined therein is vague and in precise, actual
knowledge or reason to believe on the part of the person to be brought within
the definition should be brought into that provision instead of reading down
that provision. That kind of exercise is not necessary in POTA.
POTA the word "abets" is not defined at all. Section 2(1)(i) of POTA
says "words and expressions used but not defined in this Act and defined
in the Code shall have the meaning respectively assigned to them in the
Code." According to Section 2(1)(a) of POTA "Code" means 'Code
of Criminal Procedure, 1973 (2 of 1974).' Whereas, Section 2(y) Cr.P.C. refers
to Indian Penal Code for meaning of the word 'abets'.
the definition of 'abets' as appears in the IPC will apply in a case under
POTA. In order to bring a person abetting the commission of an offence, under
the provisions of IPC it is necessary to prove that such person has been
connected with those steps of the transactions that are criminal. 'Mens rea'
element is sine qua non for offences under IPC. Learned Attorney General does
not dispute this position. Therefore, the argument advanced pertaining to the
validity of Section 3(3) citing the reason of the absence of mens rea element
4 provides for punishing a person who is in 'unauthorised possession' of arms
or other weapons. The petitioners argued that since the knowledge element is
absent the provision is bad in law. A similar issue was raised before a
Constitution Bench of this Court in Sanjay Dutt V. State (II), (1994) 5 SCC
this Court in Para 19 observed that:
Even though the word 'possession' is not preceded by any adjective like
'knowingly', yet it is common ground that in the context the word 'possession'
must mean possession with the requisite mental element, that is, conscious
possession and not mere custody without the awareness of the nature of such
is a mental element in the concept of possession. Accordingly, the ingredient
of 'possession' in Section 5 of the TADA Act means conscious possession. This
is how the ingredient of possession in similar context of statutory offence
importing strict liability on account of mere possession of an unauthorised
substance has been understood." The finding of this Court squarely to the
effect that there exists a mental element in the word possession itself answers
the Petitioners argument. The learned Attorney General also maintains the stand
that Section 4 presupposes conscious possession. Another aspect pointed out by
the petitioners is about the 'unauthorized' possession of arms and argued that
unauthorized possession could even happen; for example, by non-renewal of
license etc. In the light of Sanjay Dutt's case (supra) this Section
presupposes knowledge of terrorist act for possession. There is no question of
innocent persons getting punished.
we hold that there is no infirmity in Section 4.
6, 7, 8, 10, 11, 15, 16 and 17:
have been raised in regard to provisions relating to seizure, attachment and
forfeiture of proceeds of terrorism.
relating to seizure, attachment and forfeiture have to be read together.
Section 2(c) of POTA sets out the meaning of 'proceeds of terrorism' and reads
'proceeds of terrorism' shall mean all kinds of properties which have been
derived or obtained from commission of any terrorist act or have been acquired
through funds traceable to a terrorist act, and shall include cash irrespective
of person in whose name such proceeds are standing or in whose possession they
are found." Explanation to Section 3 gives the meaning of 'a terrorist
act' in the context of sub-section (1) of Section 3 so as to include the act of
raising funds intended for the purpose of terrorism.
6 debars a person from holding or possessing any proceeds of terrorism and also
makes it clear that it is liable to be forfeited.
7 authorises an investigating officer, not below the rank of Superintendent of
Police with the prior approval in writing of the Director General of Police of
the State, to seize such property or attach the same and serve a copy of such
an order on the person concerned, if he has reason to believe that any property
in relation to which an investigation is being conducted represents proceeds of
terrorism. Section 8 provides for forfeiture of the proceeds of terrorism by a
court irrespective of the fact whether or not the person from whose possession
it is seized or attached is prosecuted in a Special Court for an offence under POTA. Section 9 provides for issue of
show cause notice before forfeiture of proceeds of terrorism and an order for
forfeiture cannot be made if such person establishes that he is a bona fide transferee
of such proceeds for value without knowing that they represent proceeds of
terrorism. Under Section 10, an appeal lies against an order made under Section
8 of POTA.
(2) thereof states that where an order made under Section 8 is modified or
annulled by the High Court, the person against whom an order of forfeiture has
been made under Section 8 is acquitted, such property shall be returned to him
and in either case if it is not possible for any reason to return the forfeited
property, adequate compensation should be paid to him, which will be equivalent
to the price and interest from the date of seizure of the property. Although
the petitioners have challenged the various provisions of POTA relating to
seizure, forfeiture and attachment of the property, ultimately they did not
pursue with that argument and submitted that the various facets of challenge to
the aforesaid provisions can only be examined in the context of an actual fact
situation and for the present they wanted an interpretation of the expressions
used in Section 10(2) to apply even to a case of forfeiture of the proceeds of
terrorism against a person who is prosecuted under POTA. Even that aspect can
only be considered when an actual situation arises and not in the abstract.
we need not examine in detail these provisions except to notice the background
in which these provisions have been enacted.
order of forfeiture, by reason of Section 11, has been made independent of
imposition of other punishments to which a person may be liable. Under Section
12, Designated Authority has been permitted to investigate the claims made by a
third party. These provisions have to be seen as against Section 16, which
provides for forfeiture of property of any person prosecuted and ultimately
convicted. Here only on conviction, forfeiture of property can take place. In
this connection, it is relevant to take note of the provisions of Sections 15,
16 and 17. Section 15 renders certain transfers to be null and void in cases
where after the issue of an order under Section 7 or notice under Section 9 any
property is transferred by any mode whatsoever, such transfer shall for the
purpose of the Act be ignored and if such property is subsequently forfeited,
the transfer of such property shall be deemed to be null and void. Section 16
enables a special court trying a person for an offence under the Act to pass an
order that all or any of the properties, movable or immovable or both belonging
to him, during the period of such trial, be attached, if not already attached
under the Act. On conviction of such person, the special court may, by an
order, declare that any property, movable or immovable or both belonging to the
accused and specified in the order, shall stand forfeited to the Central Government
or the State Government, as the case may be. Section 17 provides that in cases
where any share of a company shall stand forfeited, then, the company shall, on
receipt of the order of the special court, notwithstanding anything contained
in the Companies Act, 1956 or the articles of association of the company,
forthwith register the Central Government or the State Government, as the case
may be, as the transferee of such shares.
and financing play a vital role in fostering and promoting terrorism and it is
only with such funds terrorists are able to recruit persons for their
activities and make payments to them and their family to obtain arms and
ammunition for furthering terrorist activities and to sustain the campaign of
terrorism. Therefore, seizure, forfeiture and attachment of properties are
essential in order to contain terrorism and is not unrelated to the same.
Indeed, it is relevant to notice a resolution passed by the United Nations
Security Council [Resolution No.1373 dated 28.9.2001] which emphasized the need
to curb terrorist activities by freezing and forfeiture of funds and financial
assets employed to further terrorist activities. It will also be interesting to
notice the United Nations International Convention for the Suppression of the
Financing of Terrorism but at the same time it is not necessary to go into
those details in the present context. The scheme of the provisions indicate
that the principles of natural justice are duly observed and they do not confer
any arbitrary power and forfeiture can only be made by an order of the court
against which an appeal is also provided to the High Court and the rights of
bona fide transferee are not affected.
for the present, it is not necessary to pronounce the constitutional validity
of these provisions and we proceed on the basis that they are valid.
of changes have been made in the provisions which existed in TADA and which
exist in POTA. The relevant discussion in the challenge to Section 8 of TADA by
majority in Kartar Singh is contained in paras 149-157 and para 452 by Justice Sahai
who has concurred with the majority. The validity of Section 8 of TADA was
upheld, only if it was applied in the manner indicated in Para 156 of the
judgment which is as under :- "The discretionary power given to the
Designated Court under Section 8(1) and (2) is to be exercised under strict
contingencies, namely, that
must be an order of forfeiture and that order must be in writing;
property either movable or immovable or both must belong to the accused
convicted of any offence of TADA Act or rule thereunder;
property should be specified in the order;
though attachment can be made under Section 8(2) during the trial of the case,
the forfeiture can be ordered only in case of conviction and not
ultimately, they do not press these contentions to be considered in these
proceedings by stating that the various facets as set above can really be seen
in actual fact situation and for the present, they call upon the Court to
clarify that the expression "modified" or "annulled" used
in Section 10(2) shall apply even in a case of forfeiture of the proceeds of
terrorism against a person who is not prosecuted under POTA.
not necessary to interpret these expressions and as and when an appropriate
case arises, appropriate interpretation can be given on the said expressions.
There is a scheme for forfeiture of the proceeds of terrorism followed by a
show cause notice to be issued and thereafter on a decision being made, an
appeal lies thereto and the order of forfeiture, by itself, will not prevent
the court from inflicting any other punishment for which the person may be
liable under the Act. The effect of modification and annulment of an order made
by court under Section 8 of the Act is set out in sub-section (2) of Section
10. Therefore, as rightly submitted on behalf of the petitioners, these aspects
can appropriately be dealt with depending upon the fact situation arising in a
given case. Therefore, it is not necessary to express any opinion on these
aspects of the matter.
constitutional validity of Section 14 is challenged by advancing the argument
that it gives unbridled powers to the investigating officer to compel any person
to furnish information if the investigating officer has reason to believe that
such information will be useful or relevant to the purpose of the Act. It is
pointed out that the provision is without any checks and is amenable to misuse
by the investigating officers. It is also argued that it does not exclude
lawyers or journalists who are bound by their professional ethics to keep the
information rendered by their clients as privileged communication. Therefore,
the Petitioners submitted that Section 14 is violative of Articles 14, 19,
20(3) and 21 of the Constitution. Learned Attorney General maintained that the
Act does not confer any arbitrary or unguided powers; that such power is
restricted to furnish information in one's possession in relation to terrorist
offence 'on points or matters where the investigating officer has reason to
believe (not suspect) that such information would be useful for or relevant to
the purposes of the Act'; that this provision is essential for the detection
and prosecution of terrorist offences; and that the underlying rationale of the
obligation to furnish information is the salutary duty of every citizen.
39 of the Code of Criminal Procedure, 1973 casts a duty upon every person to
furnish information regarding offences. Criminal justice system cannot function
without the cooperation of people. Rather it is the duty of every body to
assist the State in detection of the crime and bringing criminal to justice.
Withholding such information cannot be traced to right to privacy, which itself
is not an absolute right (See : Sharda V. Dharmpal, 2003 (4) SCC 493). Right to
privacy is subservient to that of security of State.
the necessity of people's assistance in detection of crime this Court observed
in State of Gujarat V. Anirudhsing, 1997 (6) SCC 514, that:
is the salutary duty of every witness who has the knowledge of the commission
of the crime, to assist the State in giving evidence..." Section 14
confers power to the investigating officer to ask for furnishing information
that will be useful for or relevant to the purpose of the Act.
more such information could be asked only after obtaining a written approval
from an officer not below the rank of a Superintendent of Police. Such power to
the investigating officers is quiet necessary in the detection of terrorist
activities or terrorist.
settled position of law that a journalist or lawyer does not have a sacrosanct
right to withhold information regarding crime under the guise of professional
ethics. A lawyer cannot claim a right over professional communication beyond
what is permitted under Section 126 of the Evidence Act. There is also no law
that permits a newspaper or journalist to withhold relevant information from
Courts though they have been given such power by virtue of Section 15(2) of the
Press Council Act, 1978 as against Press Council.
also : Pandit M.S.M Sharma V. Shri Sri Krishan Sinha, 1959 Supp (1) SCR 806,
and Sewakram Sobhani V. R.K Karanjia, 1981 (3) SCC 208, which quoted Arnold V.
King Emperor 1913-14 (41) IA 149, with approval and also B.S.C V. Granada
Television, 1981 (1) All E.R 417 (HL) and Branzburg V. Hayes, 1972 (408) US
665). Of course the investigating officers will be circumspect and cautious in
requiring them to disclose information. In the process of obtaining
information, if any right of citizen is violated, nothing prevents him from
resorting to other legal remedies.
much as the main purpose of Section14 of POTA is only to allow the
investigating officers to procure certain information that is necessary to proceed
with the further investigation we find there is no merit in the argument of the
petitioners and we uphold the validity of Section 14.
18 & 19:
18 and 19 deals with the notification and de-notification of terrorist
submitted that under Section 18(1) of POTA a schedule has been provided giving
the names of terrorist organization without any legislative declaration; that
there is nothing provided in the Act for declaring organizations as terrorist
organization; that this provision is therefore, unconstitutional as it takes
away the fundamental rights of an organization under Articles 14, 19(1)(a) and
19(1)(c) of the Constitution; that under Section 18(2) of the Act, the Central
Government has been given unchecked and arbitrary powers to 'add' or 'remove'
or 'amend' the Schedule pertaining to terrorist organizations; that under the
Unlawful Activities (Prevention) Act, 1967 an organization could have been
declared unlawful only after the Central Government has sufficient material to
form an opinion and such declaration has to be made by a Notification wherein
grounds have to be specified for making such declaration: that therefore such
arbitrary power is violative of Articles 14, 19 and 21 of the Constitution.
to Section 19 the main allegation is that it excessively delegates power to
Central Government in the appointment of members to the Review Committee and
they also pointed out that the inadequate representation of judicial members
will affect the decision-making and consequently it may affect the fair
judicial scrutiny; that therefore Section 19 is not constitutionally valid.
Learned Attorney General contended that there is no requirement of natural
justice which mandates that before a statutory declaration is made in respect
of an organization which is listed in the schedule a prior opportunity of
hearing or representation should be given to the affected organization or its
members: that the rule of audi alteram partem is not absolute and is subject to
modification; that in light of post-decisional hearing remedy provided under
Section 19 and since the aggrieved persons could approach the Review Committee
there is nothing illegal in the Section; that furthermore the constitutional
remedy under Articles 226 and 227 is also available; that therefore, having
regard to the nature of the legislation and the magnitude and prevalence of the
evil of terrorism cannot be said to impose unreasonable restrictions on the
Fundamental Rights under Article 19(1)(c) of the Constitution.
right of citizens to form association or union that is guaranteed by Article
19(1)(c) of the Constitution is subject to the restriction provided under
Article 19(4) of the Constitution. Under Article 19(4) of the Constitution the
State can impose reasonable restrictions, inter alia, in the interest of
sovereignty and integrity of the country. POTA is enacted to protect
sovereignty and integrity of India from the menace of terrorism. Imposing
restriction under Article 19(4) of the Constitution also includes declaring an
organization as a terrorist organization as provided under POTA. Hence Section
18 is not unconstitutional.
contended that before making the notification whereby an organization is
declared as a terrorist organization there is no provision for pre-decisional
hearing. But this cannot be considered as a violation of audi alteram partem
principle, which itself is not absolute. Because in the peculiar background of
terrorism it may be necessary for the Central Government to declare an
organization as terrorist organization even without hearing that organization.
At the same time under Section 19 of POTA the aggrieved persons can approach
the Central Government itself for reviewing its decision. If they are not
satisfied by the decision of the Central Government they can subsequently
approach Review Committee and they are also free to exercise their
Constitutional remedies. The post- decisional remedy provided under POTA
satisfies the audi alteram partem requirement in the matter of declaring an
organization as a terrorist organization. (See: Mohinder Singh Gill V. Chief
Election Commissioner, 1978 (1) SCC 405;
Cotton Mills V. Union of India, 1981 (1) SCC 664; Olga Tellis V. Bombay
Municipal Corporation, 1985 (3) SCC 545; Union of India V. Tulsiram Patel, 1985
(3) SCC 398).
the absence of pre-decisional hearing cannot be treated as a ground for
declaring Section 18 as invalid.
urged that Section 18 or 19 is invalid based on the inadequacy of judicial
members, in the Review Committee. As per Section 60, Chairperson of the Review
Committee will be a person who is or has been a Judge of High Court.
mere presence of non-judicial members by itself cannot be treated as a ground
to invalidate Section 19. (See: Kartar Singh' case (supra) at page 683, para
265 of SCC).
regards the reasonableness of the restriction provided under Section 18, it has
to be noted that the factum of declaration of an organization as a terrorist
organization depends upon the 'belief' of Central Government. The
reasonableness of the Central Government's action has to be justified based on
material facts upon which it formed the opinion. Moreover the Central Government
is bound by the order of the Review Committee. Considering the nature of
legislation and magnitude or presence of terrorism, it cannot be said that
Section 18 of POTA imposes unreasonable restrictions on fundamental right
guaranteed under Article 19(1)(c) of the Constitution. We uphold the validity
of Sections 18 and 19.
20, 21 & 22:
assailed Sections 20, 21 and 22 mainly on the ground that no requirement of mens
rea for offences is provided in these Sections and the same is liable to misuse
therefore it has to be declared unconstitutional. The Learned Attorney General
argued that Section 21 and its various sub-sections are penal provisions and
should be strictly construed both in their interpretation and application; that
on a true interpretation of the Act having regard to the well settled
principles of interpretation Section 21 would not cover any expression or
activity which does not have the element or consequence of furthering or
encouraging terrorist activity or facilitating its commission; that support per
se or mere expression of sympathy or arrangement of a meeting which is not
intended or designed and which does not have the effect to further the
activities of any terrorist organization or the commission of terrorist acts are
not within the mischief of Section 21 and hence is valid.
the only point to be considered is whether these Sections exclude mens rea
element for constituting offences or not. At the outset it has to be noted that
Sections 20, 21 and 22 of POTA is similar to that of Sections 11, 12 and 15 of
the Terrorism Act, 2000 of United Kingdom.
provisions are found to be quite necessary all over the world in anti-terrorism
20, 21 and 22 are penal in nature that demand strict construction. These
provisions are a departure from the ordinary law since the said law was found
to be inadequate and not sufficiently effective to deal with the threat of
the crime referred to herein under POTA is aggravated in nature. Hence special
provisions are contemplated to combat the new threat of terrorism. Support
either verbal or monetary, with a view to nurture terrorism and terrorist
activities is causing new challenges.
Parliament finds that such support to terrorist organizations or terrorist
activities need to be made punishable. Viewing the legislation in its totality
it cannot be said that these provisions are obnoxious.
the Petitioners apprehension regarding the absence of mens rea in these
Sections and the possibility of consequent misuse needs our elucidation. It is
the cardinal principle of criminal jurisprudence that mens rea element is
necessary to constitute a crime. It is the general rule that a penal statute
presupposes mens rea element. It will be excluded only if the legislature
expressly postulate otherwise. It is in this context that this Court said in Kartar
Singh's case (supra) (at page 645 para 115 of SCC) that:
a statue either expressly or by necessary implication rules out 'mens rea' in
case of this kind, the element of mens rea must be read into the provision of
the statute." Mens rea by necessary implication could be excluded from a
statue only where it is absolutely clear that the implementation of the object
of the Statue would otherwise be defeated. Here we need to find out whether
there are sufficient grounds for inferring that Parliament intended to exclude
the general rule regarding mens rea element. (See: State of Maharashtra V. M H
George, AIR 1965 SC 722, Nathulal V. State of MP, AIR 1966 SC 43, Inder Sain V.
State of Punjab, (1973) 2 SCC 372, for the general principles concerning the
exclusion or inclusion of mens rea element vis-`-vis a given statute). The
prominent method of understanding the legislative intention, in a matter of this
nature, is to see whether the substantive provisions of the Act requires mens rea
element as a constituent ingredient for an offence. Offence under Section 3(1)
of POTA will be constituted only if it is done with an -'intent'. If Parliament
stipulates that the 'terrorist act' itself has to be committed with the
criminal intention, can it be said that a person who 'profess' (as under
Section 20) or 'invites support' or 'arranges, manages, or assist in arranging
or managing a meeting' or 'addresses a meeting' (as under Section 21) has
committed the offence if he does not have an intention or design to further the
activities of any terrorist organization or the commission of terrorist acts?
We are clear that it is not. Therefore, it is obvious that the offence under
Section 20 or 21 or 22 needs positive inference that a person has acted with
intent of furthering or encouraging terrorist activity or facilitating its
commission. In other words, these Sections are limited only to those activities
that have the intent of encouraging or furthering or promoting or facilitating
the commission of terrorist activities. If these Sections are understood in
this way, there cannot be any misuse. With this clarification we uphold the
constitutional validity of Sections 20, 21 and 22.
Section 27, a police officer investigating a case can seek a direction through
the Court of Chief Judicial Magistrate or the Court of a Chief Metropolitan
Magistrate for obtaining samples of handwriting, finger prints, foot-prints,
photographs, blood, saliva, semen, hair, voice of any accused person reasonably
suspected to be involved in the commission of an offence under the Act. The
Court can also draw adverse inference if an accused refuses to do so.
argued that this Section falls foul of Articles 14, 20(3) and 21 of the
Constitution for the reason: that no power has been left with the Court to
decide whether the request for samples from a suspect person sought for by
investigating office is reasonable or not; that no power has been given to the
Court to refuse the request of the investigating officer; that it is not
obligatory for the Court to record any reason while allowing the request; and
that the Section is a gross violation of Article 20(3) because it amounts to
compel a person to give evidence against himself.
mainly on State of Bombay V. Kathi Kalu Oghad, 1962 (3) SCR 10, learned
Attorney General submitted that the argument pertaining to the violation of
Article 20(3) is not sustainable.
not think, as feared by the Petitioner, that this Section fixes a blanket
responsibility upon the Court to grant permission immediately upon the receipt
of a request. Upon a close reading of the Section it will become clear that
upon a 'request' by an investigating police officer it shall only 'be lawful'
for the Court to grant permission. Nowhere it is stated that the Court will
have to positively grant permission upon a request. It is very well within the
ambit of Court's discretion. If the request is based on wrong premise, the
Court is free to refuse the request.
discretionary power granted to the Court presupposes that the Court will have
to record its reasoning for allowing or refusing a request.
to the argument that the Section per se violates Article 20(3), it has to be
noted that a bench consisting of 11 judges in Kathi Kalu Oghad's case (supra)
have looked into a similar situation and it is ruled therein (at pages 30 -32)
giving of finger impression or of specimen signature or of handwriting,
strictly speaking, is not 'to be a witness'...when an accused person is called
upon by the Court or any other authority holding an investigation to give his
finger impression or signature or any specimen of his handwriting, he is not
giving any testimony to the nature of a personal testimony. The giving of a
personal testimony must depend upon his volition. He can make any kind of
statement or may refuse to make any statement. But his finger impressions or
his handwriting, in spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Thus the giving of
finger impression or of specimen writing or of signatures by an accused person,
though it may amount to furnishing evidence in the larger sense, is not
included within the expression 'to be a witness'...
are only materials for comparison in order to lend assurance to the Court that
its inference based on other pieces of evidence is reliable..." (Emphasis
Supplied) This being the position in law, the argument of the Petitioners
pertaining to the violation of Article 20(3) is not sustainable. It is
meaningful to look into Section 91 of Cr. PC that empowers a criminal court as
also a police officer to order any person to produce a document or other thing
in his possession for the purpose of any inquiry or trial. (See: Shyamlal Mohanlal
V. State of Gujarat, AIR 1961 SC 1808, in this regard).
this Section is only a step in aid for further investigation and the samples so
obtained can never be considered as conclusive proof for conviction.
Consequently we uphold the constitutional validity of Section 27.
30 contains provision for the protection of witness. It gives powers to the
Special Court to hold proceedings in camera and to taking measures for keeping
the identity of witness secret.
challenged the constitutional validity of this Section by leveling the
the right to cross-examine is an important part of fair trial and principles of
natural justice which is guaranteed under Article 21; that even during
emergency fundamental rights under Article 20 and 21 cannot be taken away; that
Section 30 is in violation of the dictum in Kartar Singh's case (supra) because
it does not contain the provision of disclosure of names and identities of the
witness before commencement of trial; that fair trial includes the right for
the defence to ascertain the true identity of an accuser; that therefore the
same has to be declared unconstitutional. Learned Attorney General submitted
that such provisions or exercise of such powers are enacted to protect the life
and liberty of a person who is able and willing to give evidence in prosecution
of grave criminal offences;
the Section is not only in the interest of witness whose life is in danger but
also in the interest of community which lies in ensuring that heinous offences
like terrorist acts are effectively prosecuted and punished; that if the
witnesses are not given immunity they would not come forward to give evidence
and there would be no effective prosecution of terrorist offences and the
entire object of the Act would be frustrated; that cross- examination is not a
universal or indispensable requirement of natural justice and fair trial; that
under compelling circumstances it can be dispensed with natural justice and
fair trial can be evolved; that the Section requires the Court to be satisfied
that the life of witness is in danger and the reasons for keeping the identity
of the witness secret are required to be recorded in writing; that, therefore,
it is reasonable to hold that the Section is necessary for the operation of the
30 of POTA is similar to Section 16 of TADA, the constitutional validity of
which was upheld by this Court in Kartar Singh's case (supra) (see pages 683 -
689 of SCC). In order to decide the constitutional validity of Section 30 we
don't think it is necessary to go into the larger debate, which learned Counsel
for both sides have argued, that whether right to cross-examine is central to
fair trial or not. Because right to cross- examination per se is not taken away
This Section only confers discretion to the concerned Court to keep the
identity of witness secret if the life of such witness is in danger. We cannot
shy away from the unpleasant reality that often witnesses do not come forward
to depose before Court even in serious cases. This precarious situation creates
challenges to our criminal justice administration in general and terrorism
related cases in particular. Witnesses do not volunteer to give evidence mainly
due to the fear of their life. Ultimately, the non-conviction affects the
larger interest of community, which lies in ensuring that the executors of
heinous offences like terrorist acts are effectively prosecuted and punished.
Legislature drafted Section 30 by taking all these factors into account. In our
view a fair balance between the rights and interest of witness, rights of
accused and larger public interest has been maintained under Section 30. It is
also aimed to assist the State in justice administration and encourage others
to do the same under the given circumstances. Anonymity of witness is not
general rule under Section 30.
will be withheld only in exceptional circumstance when the Special Court is
satisfied that the life of witness is in jeopardy. Earlier this Court has
endorsed similar procedure. (See: Gurbachan Singh V. State of Bombay, 1952 SCR
737, Hira Nath Mishra V. Principal, Rajendra Medical College, 1973 (1) SCC 805,
A. K. Roy V. Union of India, 1982 (1) SCC 271).
deciding the validity of Section 16 of TADA, this Court quoted all these cases
also the subsequent decision in Jamaat-e- Islami Hind V. Union of India, 1995
(1) SCC 428.
need for the existence and exercise of power to grant protection to a witness
and preserve his or her anonymity in a criminal trial has been universally recognised.
Provisions of such nature have been enacted to protect the life and liberty of
the person who is able and willing to give evidence in support of the
prosecution in grave criminal cases. A provision of this nature should not be
looked at merely from the angle of protection of the witness whose life may be
in danger if his or her identity is disclosed but also in the interest of the
community to ensure that heinous offences like terrorist acts are effectively
prosecuted and punished. It is a notorious fact that a witness who gives
evidence which is unfavourable to an accused in a trial for terrorist offence
would expose himself to severe reprisals which could result in death or severe
bodily injury or that of his family members. If such witnesses are not given
appropriate protection, they would not come forward to give evidence and there
would be no effective prosecution of terrorist offences and the entire object
of the enactment may possibly be frustrated. Under compelling circumstances
this can be dispensed with by evolving such other mechanism, which complies
with natural justice and thus ensures a fair trial.
made in this regard by this Court in the decisions to which we have adverted to
earlier have been noticed by this Court in Kartar Singh's case (supra) and has
upheld the validity of a similar provision subject, of course, to certain
conditions which form part of Section 30 now. The present position is that
Section 30(2) requires the court to be satisfied that the life of a witness is
in danger to invoke a provision of this nature. Furthermore, reasons for
keeping the identity and address of a witness secret are required to be
recorded in writing and such reasons should be weighty. In order to safeguard
the right of an accused to a fair trial and basic requirements of the due
process a mechanism can be evolved whereby the special court is obligated to
satisfy itself about the truthfulness and reliability of the statement or
disposition of the witness whose identity is sought to be protected.
attention has been drawn to legal position in USA, Canada, New Zealand, Australia and UK as well as the view expressed in the European Court of Human Rights in
various decisions. However, it is not necessary to refer any of them because
the legal position has been fully set out and explained in Kartar Singh and
provision of POTA in Section 30 clause (2) has been modelled on the guidelines
set out therein.
further notice that the effort of the court has been to balance the right of
the witness as to his life and liberty and the right of community in effective
prosecution of heinous criminal offences with the right of the accused to a
fair trial. This is done by devising a mechanism or arrangement to preserve
anonymity of the witness when there is an identifiable threat to the life or
physical safety of the witness or others whereby the court satisfies itself
about the weight to be attached to the evidence of the witness. In some
jurisdictions an independent counsel has been appointed for the purpose to act
as amicus curie and after going through the deposition evidence assist the
court in forming an opinion about the weight of the evidence in a given case or
in appropriate cases to be cross-examined on the basis of the questions
formulated and given to him by either of the parties. Useful reference may be
made in this context to the recommendations of the Law Commission of New
necessity to protect the identity of the witness is not a factor that can be
determined by a general principle. It is dependent on several factors and
circumstances arising in a case and, therefore, the Act has left the
determination of such question to an appropriate case.
secret the identity of witness, though in the larger interest of public, is a
deviation from the usual mode of trial. In extraordinary circumstances we are
bound to take this path, which is less travelled. Here the Special Courts will
have to exercise utmost care and caution to ensure fair trial. The reason for
keeping identity of the witness has to be well substantiated. It is not
feasible for us to suggest the procedure that has to be adopted by the Special
Courts for keeping the identity of witness secret. It shall be appropriate for
the concerned Courts to take into account all the factual circumstances of
individual cases and to forge appropriate methods to ensure the safety of
individual witness. With these observations we uphold the validity of Section
Section made it lawful of certain confessions made to police officers to be
taken into consideration.
the validity and procedural difficulties that could arise during the process of
recording confessions the Petitioners submitted that there is no need to
empower the police to record confession since the accused has to be produced
before the Magistrate within forty-eight hours, in that case magistrate himself
could record the confession; that there is no justification for extended time
limit of forty eight hours for producing the person before Magistrate; that it
is not clear in the Section whether the confession recorded by the police
officer will have the validity after Magistrate has recorded the fact of
torture and has sent the accused for medical examination; that it is not clear
as to whether both the confession before the police officer as well as
confession statement before the Magistrate shall be used in evidence; that the
Magistrates cannot be used for mechanically putting seal of approval on the
confessional statements by the police; that, therefore, the Section has to be
nullified. Validity of this Section was defended by the learned Attorney
General by forwarding the arguments that the provisions relating to the
admissibility of confessional statements, which is similar to that of Section
32 in POTA was upheld in Kartar Singh's case (supra); that the provisions of
POTA are an improvement of TADA by virtue of enactment of Section 32(3) to
32(5); that the general principles of law regarding the admissibility of a
confessional statement is applicable under POTA; that the provision which
entails the Magistrate to test and examine the voluntariness of a confession
and complaint of torture is an additional safeguard and does not in any manner
inject any constitutional infirmity;
there cannot be perennial distrust of the police; that Parliament has taken
into account all the relevant factors in its totality and same is not unjust or
outset it has to be noted that the Section 15 of TADA that was similar to this
Section was upheld in Kartar Singh's case (supra) (pages 664-683 of SCC). While
enacting this Section Parliament has taken into account of all the guidelines,
which were suggested by this Court in Kartar Singh's case (supra). Main
allegation of the Petitioners is that there is no need to empower the police to
record confession since the accused has to be produced before the Magistrate
within forty-eight hours in which case the Magistrate himself could record the
statement or confession.
context of terrorism the need for making such a provision so as to enable
Police officers to record the confession was explained and upheld by this Court
in Kartar Singh's case (supra) (page 680 para 253 of SCC). We need not go into
that question at this stage. If the recording of confession by police is found
to be necessary by Parliament and if it is in tune with the scheme of law, then
an additional safeguard under Section 32 (4) and (5) is a fortiori legal. In
our considered opinion the provision that requires producing such a person
before the Magistrate is an additional safeguard. It gives that person an
opportunity to rethink over his confession. Moreover, the Magistrate's
responsibility to record the statement and the enquiry about the torture and
provision for subsequent medical treatment makes the provision safer. It will
deter the police officers from obtaining a confession from an accused by
subjecting him to torture. It is also worthwhile to note that an officer who is
below the rank of a Superintendent of Police cannot record the confession
statement. It is a settled position that if a confession was forcibly extracted,
it is a nullity in law. Non-inclusion of this obvious and settled principle
does not make the Section invalid. (See : Kartar Singh's case (supra) page 678,
para 248 - 249 of SCC). Ultimately, it is for the concerned Court to decide the
admissibility of the confession statement. (See : Kartar Singh's case (supra)
page 683, para 264 of SCC). Judicial wisdom will surely prevail over
irregularity, if any in the process of recording confessional statement.
we are satisfied that the safeguards provided by the Act and under the law is
adequate in the given circumstances and we don't think it is necessary to look
more into this matter.
we uphold the validity of Section 32.
49 mainly deals with procedure for obtaining bail for an accused under POTA.
main grievance about this Section is that under Section 49(7) a Court could
grant bail only if it is satisfied that there are grounds for believing that an
accused 'is not guilty of committing such offence', since such a satisfaction
could be attained only after recording of evidence there is every chance that
the accused will be granted bail only after minimum one year of detention; that
the proviso to Section 49(7), which is not there under TADA, makes it clear that
for one year from the date of detention no bail could be granted; that this
Section has not incorporated the principles laid down by this Court in Sanjay Dutt's
case (supra) (at page 439 para 43-48 of SCC) wherein it is held that if a challan
is not filed after expiry of 180 days or extended period, the indefeasible
right of an accused to be released on bail is ensured, provided that the same
is exercised before filing of challan; that the prosecution is curtailing even
this right under POTA. Therefore, the petitioners want us to make the Section
less stringent according to the settled principles of law. Learned Attorney
General submitted that the provisions regarding bail are not onerous nor do
they impose any excessive burden or restriction on the right of the accused;
similar provisions are found in Section 37 of the NDPS Act 1985 and in Section
10 of the UP Dacoity Affected Areas Act; that on a true construction of Section
49(6) and (7) it is not correct to conclude that the accused cannot apply for bail
at all for a period of one year; that the right of the accused to apply for
bail during the period of one year is not completely taken away;
the stringent provision of bail under Section 49(7) would apply only for the
first one year of detention and after its expiry the normal bail provisions
under Cr.P.C. would apply; that there is no dispute that the principle laid
down by this Court in D.K Basu V. State of West Bengal, 1997 (1) SCC 416, will
apply; that in the light of effective safeguards provided in the Act and
effective remedies against adverse orders there is no frailty in Section 49.
49 of the Act is similar to that of Section 20 of TADA, constitutional validity
of which has been upheld by this Court in Kartar Singh's case (supra) (pages
691-710 of SCC).
before us is limited to the interpretation of Section 49(6) and (7). By virtue
of Section 49(8), the powers under Section 49 (6) and (7) pertaining to bail is
in addition to and not in derogation to the powers under the Code or any other
law for the time being in force on granting of bail. The offences under POTA
are more complex than that of ordinary offences. Usually the overt and covert
acts of terrorism are executed in a chillingly efficient manner as a result of
high conspiracy, which is invariably linked with anti- national elements both
inside and outside the country. So an expanded period of detention is required
to complete the investigation. Such a comparatively long period for solving the
case is quite justifiable. Therefore, the investigating agencies may need the
custody of accused for a longer period. Consequently, Section 49 (6) and (7)
are not unreasonable. In spite of this, bail could be obtained for an accused
booked under POTA if the 'court is satisfied that there are grounds for
believing that he is not guilty of committing such offence' after hearing the
Public Prosecutor. It is the general law that before granting the bail the
conduct of accused seeking bail has to be taken into account and evaluated in the
background of nature of crime said to have committed by him. That evaluation
shall be based on the possibility of his likelihood of either tampering with
the evidence or committing the offence again or creating threat to the society.
the satisfaction of the Court under Section 49(7) has to be arrived based on
the particular facts and after considering the abovementioned aspects, we don
not think the unreasonableness attributed to Section 49(7) is fair. (See: Kartar
Singh's case (supra) page 707, para 349-352 of SCC).
to Section 49(7) reads as under:
that after the expiry of a period of one year from the date of detention of the
accused for an offence under this Act, the provisions of sub-section (6) of
this Section shall apply." It is contended that this proviso to Section
49(7) of POTA is read by some of the courts as a restriction on exercise of
power for grant of bail under Section 49(6) of POTA and such power could be
exercised only after the expiry of the period of one year from the date of
detention of the accused for offences under POTA. If the intention of the
legislature is that an application for bail cannot be made prior to expiry of
one year after detention for offences under POTA, it would have been clearly
spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of
POTA have to be read together and the combined reading of these two sections is
to the effect that Public Prosecutor has to be given an opportunity of being
heard before releasing the accused on bail and if he opposes the application,
the court will have to be satisfied that there are grounds for believing that
he is not guilty of having committed such offence. It is by way of exception to
Section 49(7) that proviso is added which means that after the expiry of one
year after the detention of the accused for offences under POTA, the accused
can be released on bail after hearing the Public Prosecutor under ordinary law
without applying the rigour of Section 49(7) of POTA. It also means that the accused
can approach the court for bail subject to conditions of Section 49(7) of POTA
within a period of one year after the detention for offences under POTA.
to Section 49(7) provides that the condition enumerated in sub-section (6) will
apply after the expiry of one-year. There appears to be an accidental omission
or mistake of not including the word 'not' after the word 'shall' and before
the word 'apply'. Unless such a word is included, the provision will lead to an
absurdity or become meaningless. Even otherwise, read appropriately, the
meaning of the proviso to Section 49(7) is that an accused can resort to
ordinary bail procedure under the Code after that period of one year. At the
same time, proviso does not prevent such an accused to approach the Court for
bail in accordance with the provisions of POTA under Section 49(6) and (7)
thereof. This interpretation is not disputed by the learned Attorney General.
into account of the complexities of the terrorism related offences and
intention of Parliament in enacting a special law for its prevention, we do not
think that the additional conditions regarding bail under POTA are
unreasonable. We uphold the validity of Section 49.
is no challenge to any other provisions of the Act.
result, these petitions stand dismissed subject, however, to the clarifications
that we have set out above on the interpretation of the provisions of the
enactment while dealing with the constitutionality thereof.
was registered against the petitioner under Section 13(1)(a) of the Unlawful
Activities Prevention Act, 1967, Section 21(2) and (3) of the Prevention of
Terrorism Act, 2002 (POTA) read with Sections 109 and 120B of the Indian Penal
Code on 4.7.2002. When the petitioner returned to Chennai from Chicago on 11.7.2002, he was arrested at
the Chennai Airport and was produced before a Judicial Magistrate, Madurai on 12.7.2002. He had been remanded.
He has been detained in jail since then pursuant to the remand order of the Judicial
Magistrate, Madurai. A notification was issued
Court, Chennai at Poonamallee
for trial of the offences under POTA. The petitioner was produced before the Special Court on 7.8.2002 and he has been
continued to be remanded to jail from time to time. On 9.10.2002, his remand
has been extended beyond the period of 90 days.
this case, though several questions have been raised, two questions have been
specifically urged, namely :
Whether Section 21(1) and (3) of the Prevention of Terrorism Act, 2002 are
offending Article 19(1)(a) and 19(1)(c) of the Constitution of India and
therefore unconstitutional? (2) Does the mere expression of sympathy for Tamils
in Sri Lanka for whom the Liberation of Tigers of Tamil Eelam has become the sole-representative
recognised by the International Community amount to support to a terrorist organisation
under the Prevention of Terrorism Act, 2002 thereby empower the State to
curtail the personal liberty? We have upheld the constitutional validity of Section
21 of POTA in the decision pronounced by us in Writ Petition (C) No. 389 of
2002 above and, therefore, the first question does not survive for
as the second question is concerned, we have heard Shri F.S. Nariman and Shri
learned senior counsel appearing for the petitioner, apart from Shri Rajinder Sachhar
and Shri B.S. Malik, the learned senior counsel appearing for the petitioner in
connected matters, on the interpretation of Section 21 of POTA. Shri P.P. Rao,
appearing for the State of Tamil Nadu,
has made elaborate submissions and adverted to various affidavits filed by the
Union of India.
it is not necessary for us to examine any of these aspects in these
proceedings. We have carefully considered the arguments advanced by the learned
counsel and that of the learned Attorney General for India on this aspect of the matter. We think,
the proper course that has to be adopted in a case of this nature where a
criminal case has already been lodged and the same is pending consideration
before the Special
Court, it would not
be appropriate for us to express our views on the question of facts arising in
this case. We are sure that the Special Court will decide the matter in the
light of decision pronounced by us in Writ Petition (C) No. 389 of 2002 above.
writ petition is disposed of with aforesaid observations.
petitioner in this writ petition seeks for declaration that Section 21(2) and
the proviso to Section 49(6) and 49(7) of POTA are illegal and ultra vires the
Constitution of India.
as we have upheld the constitutional validity of Section 21(2) and proviso to
Section 49(6) and 49(7) of POTA in the judgment pronounced by us in Writ
Petition (C) No. 389 of 2002 above, this writ petition is dismissed.
this writ petition, apart from challenging the constitutional validity of
Sections 1(4), 3 to 9, 14, 18 to 24, 26, 27, 29 to 33, 36 to 53 which has been
upheld by us in the judgment pronounced by us in Writ Petition (C) No. 389 of
2002 above, the constitutional validity of Entry 21 of the Schedule to POTA is
that aspect no specific arguments have been addressed by any of the parties.
This matter will have to be heard separately and hence, this writ petition is
de-linked from other matters.