Sunjay
Dutt Vs. State (I) [1994] INSC 434 (18 August 1994)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Singh N.P. (J)
CITATION:
1994 SCC (5) 402 JT 1994 (5) 225 1994 SCALE (3)790
ACT:
HEAD NOTE:
ORDER
1. 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 I 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.
Mens rea 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 overriding 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.
404
4. The
petitioner is one of the accused in Bombay blasts 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 16-1-1993 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 wilful destruction of evidence namely 1 AK-56 rifle, one 9 mm
pistol, and cartridges by deliberately removing them from the house of accused Sanjay
Dutt, at his instance, with th e intention to protect the offender, i.e.,
Sanjay Dutt from legal consequences and therefore, they are also guilty of the
offence under Section 201 EPC."
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 has remained unretracted
till today, wherein he admitted receiving 3 AK- 56 rifles on 16-1-1993 along with ammunition from the aforesaid persons but
stated that 2 days after he returned 2 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 out
of fear.
6. Shri
Ram Jethmalani, learned counsel for the petitioner contends that possession of
any of the arms and ammunition or other material specified in Section 5 per se
does not attract Section 5. More particularly, he submitted, possession of a
weapon exclusively for self-defence can certainly not attract the said
provision. Learned counsel pointed out that according to Section 5 read with
the relevant entries in Schedule I to the Arms Rules, 1962, even the mere unauthorised
possession of a pistol or a revolver in the notified area would by itself
attract Section 5, if read literally. He submits that when the legislative competence
of the Parliament to enact TADA was questioned in Kartar Singh v. State of
Punjab1 this Court affirmed the Parliament's competence with reference to inter
alia Entry 1 of List I of the Seventh 1 (1994) 3 SCC 569: 1994 SCC (Cri) 899:
JT (1994) 2 SC 423 405 Schedule to the Constitution. For this reason, he says,
the requirement of the said entry must necessarily be read into Section 5. In
other words, according to the learned counsel, the prosecution must allege and
establish that the weapon unauthorisedly in possession of the accused was
intended to be used for any of the objects mentioned in sub- section (1) of
Section 3 of the Act. He points out that Section 2(h) of the Act defines
"terrorist act" and 'terrorist' as under:
"2.
(h) 'terrorist act' has the meaning assigned to it in subsection (1) of Section
3, and the expression 'terrorist' shall be, construed accordingly;"
7.
Learned counsel urges that before a person is charged for having committed a
terrorist act, it must be alleged that he 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 objects mentioned in
sub-section (1) of Section 3. Section 5 does not say that the accused concerned
found in possession of any arms and ammunition specified, must be in possession
of the same for any of the objects mentioned in sub-section (1) of Section 3.
But unless the possession of the arms and ammunition 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
meaning of the Act and the possession of any arms and ammunition specified
therein, shall not be deemed to be a "terrorist act", says Shri Jethmalani.
He relies upon the observations in the concurring opinion of R.M. Sahai, J. in Kartar
Singh1. In paragraphs 478 and 479, the learned Judge opined that to attract
Section 5 there must be some interrelation between Section 5 and Sections 3 and
4 of the Act, however remote it may be. The following observations are
particularly relied upon: (SCC pp. 759-60, para 45 1) "In Sections 3 and 4
the offence arises on the act having been done whereas in Section 5 it is
founded only on possession. Even under sub-section (3) of Section 3 a person is
liable to be prosecuted for abetting the offence if he assists or communicates
with a terrorist. Sub-sections (5) and (6) inserted by Act 43 of 1993 to
Section 3 also require that a person can be prosecuted only if he is found to
be a member of a terrorist gang or terrorist Organisation etc. The Act,
therefore, visualises prosecution of the terrorist or disruptionist for
offences under Sections 3 and 4 and of others only if they are associated or
related with it. That is in keeping with the objective of the Act. The
legislation has been upheld as the legislature is competent to enact in respect
of a crime which is not otherwise covered by any Entry in List II of the
Seventh Schedule. The definition of the crime, as has been discussed earlier,
is contained in Sections 3 and 4 of the Act and it is true that while defining
the crime it is open to the legislature to make provision which may serve the
objective of the legislation and from a wider point of view one may say that
possession of such arms, the use of which may lead to terrorist activity,
should be taken as one of the offences as a preventive or 406 deterrent
provision. Yet there must be some interrelation between the two, howsoever,
remote it may be. The harshness of the provisions is apparent as all those
provisions of the Act for prosecuting a person including forfeiture of
property, denial of bail etc., are applicable to a person accused of possessing
any arms and ammunition as one who is charged for an offence under Sections 3
and 4 of the Act. It is no doubt true that no one has justification to have
such arms and ammunition as are mentioned in Section 5, but unjustifiable
possession does not make a person a terrorist or disruptionist. Eve n under
Ireland Emergency Provisions Act, 1978 on which great reliance was placed by
learned Additional Solicitor General there is no such harsh provision like
Section 5. Since both the substantive and procedural law apply to a terrorist
and disruptionist or a terrorist act or a disruptive act, it is necessary, in
my opinion, that this section if it has to be immune from attack of
arbitrariness, may be invoked only if there is some material to show that the
person who was possessed of the arms intended it to be used for terrorist or disruptionist
activity or it was an arm and ammunition which in fact was used." It may
be noticed that the said observations were made on a submission " raised
in the written submissions only". In other words, it does not appear that
the said issue was raised or argued before the Constitution Bench. On this
basis, it is contended by the other side that the said observations are in the
nature of obiter dicta and cannot be treated as a decision.
8.
Since even the obiter dicta of this Court is said to be binding upon other
courts in the country and also because the interpretation placed upon Section 5
by the learned Judge amounts to reading words into Section 5 which are 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.
9.
There is yet another issue which is raised by the petitioner in the additional
grounds based upon Section 20(4)(bb) of TADA. It is submitted that the
charge-sheet in this case was filed beyond six months of his arrest but no
order extending the petitioner's detention was made by the Designated Court with notice to the petitioner,
before the expiry of 180 days. In this context, the orders of the Bombay High
Court granting him bail, or continuing it, are said to be of no significance,
as held by the Designated
Court itself in the
order in question. (The Designated
Court held that
notwithstanding the said orders the petitioner must be deemed in law to be in
custody.) If so at the end of 180 days from the date of his arrest, says the
counsel, an indefeasible right accrued to the 'petitioner to be enlarged on
bail soon upon the expiry of 180 days. In support of this contention, strong
reliance is placed upon the judgment of this Court in Hitendra Vishnu Thakur v.
State of Maharashtra2. Among other questions the said
decision deals with the meaning, effect and retrospectivity of clause (bb) in
sub- 2 (1994) 4 SCC 602: 1994 SCC (Cri) 1087 : JT (1994) 4 SC 255 407 section
(4) of Section 20 of TADA. We may read sub-section (4) in full at this stage:
"(4)
Section 167 of the Code shall apply in relation to a case involving an offence
punishable under this Act or any rule made thereunder subject to the
modifications that-
(a) the
reference in sub-section (1) thereof to 'Judicial Magistrate' shall be
construed as a reference to 'Judicial Magistrate or Executive Magistrate or
Special Executive Magistrate';
(b)
the references in sub-section (2) thereof to 'fifteen days', ,ninety days' and
'sixty days', wherever they occur, shall be construed as references to 'sixty
days', 'one hundred and eighty days' and 'one hundred and eighty days'
respectively; and (bb) in sub-section (2), after the proviso, the following
proviso shall be inserted, namely:- Provided further that, if it is not
possible to complete the investigation within the said period of one hundred
and eighty days, the Designated Court shall extend the said period up to one
year, on the report of the Public Prosecutor indicating the progress of the
investigation and the specific reasons for the detention of the accused beyond
the said period of one hundred and eighty days; and
(c)
sub-section (2-A) thereof shall be deemed to have been omitted,"
10.
The Division Bench, construing the said provision in the light of Section 167
of the Criminal Procedure Code held thus: (SCC pp. 626-28, paras 20 and 21)
"The proviso to Section 167(2) of the Code read with Section 20(4)(b) of
TADA, therefore, creates an indefeasible right in an accused person on account
of the 'default' by the investigating agency in the completion of the
investigation within the maximum period prescribed or extended, as the case may
be, to seek an order for his release on bail. ... As a consequence of the
amendment, an accused after the expiry of 180 days from the date of his arrest
becomes entitled to bail irrespective of the nature of the offence with which
he is charged where the prosecution fails to put up challan against him on
completion of the investigation. With the amendment of clause (b) of
sub-section (4) of Section 20 read with the proviso to sub-section (2) of
Section 167 of CrPC an indefeasible right to be enlarged on bail accrues in favour
of the accused if the police fails to complete the investigation and put up a challan
against him in accordance with law under Section 173 CrPC. An obligation, in
such a case, is cast upon the court, when after the expiry of the maximum
period during which an accused could be kept in custody, to decline the police
request for further remand except in cases governed by clause (bb) of Section
20(4). There is yet another obligation also which is cast on the court and that
is to inform the accused of his right of 408 being released on bail and enable
him to make an application in that behalf.
* * *
* Thus, we find that once the period for filing the charge-sheet has expired
and either no extension under clause (bb) has been granted by the Designated
Court or the period of extension has also expired, the accused person would be
entitled to move an application for being admitted to bail under sub-section
(4) of Section 20 TADA read with Section 167 of the Code and the Designated
Court shall release him on bail, if the accused seeks to be so released and
furnishes the requisite bail.
* * *
* * It would, therefore, serve the ends of justice if both sides are heard on a
petition for grant of bail on account of the prosecution's 'default'.
Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause
(bb), its notice should be issued to the accused before granting such an
extension so that an accused may have an opportunity to oppose the extension on
all legitimate and legal grounds available to him. It is true that neither
clause (b) nor (bb) of sub- section (4) of Section 20 TADA specifically provide
for the issuance of such a notice but in our opinion the issuance of such a
notice must be read into these provisions both in the interest of the accused
and the prosecution as well as for doing complete justice between the parties.
This is a requirement of the principles of natural justice and the issuance of
notice to the accused or the public prosecutor, as the case may be, would
accord with fair play in action, which the courts have always encouraged and
even insisted upon." 11.We are of the respectful opinion that the said
proviso may have been conceived, to prod the prosecution to proceed with and
complete the investigation with all promptitude.
The
idea is that the investigation should be concluded within 180 days of the
arrest but in case it could not be concluded and the public prosecutor reports
the progress of investigation and the specific reasons for the detention of the
accused beyond the period of 180 days, the court evidently on being satisfied
with the progress of the investigation and the reasons for the continued
detention of the accused is empowered to extend the said period to one year.
The absence of words providing for issuance of notice to the accused while
extending the period of detention tends to support this view. If the reasoning
and logic underlying the aforesaid observations in Hitendra Vishnu Thakur2 are
extended to Section 167(2) of CrPC, as it may well be contended, it would mean
that every time the Magistrate authorises the detention of the accused in
custody beyond 15 days, he would be obliged to give notice to the accused and hear
him. Such a course may neither be feasible nor warranted. In our opinion, the
view taken by the Division Bench in Hitendra Vishnu Thakur2 probably calls for a
reconsideration.
12. 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 409
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 authorising
detention of an accused in custody during investigation. After the 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 33 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. (Ram Narayan Singh v. State of Delhi3; Naranjan Singh Nathawan v. State
of Punjab4; A.K. Gopalan v. Govt. of India5.)
In short, the meaning and effect of the said provision has to be
authoritatively pronounced upon.
13.
Yet another contention raised by Shri Jethmalani relates to interpretation of
sub-section (8) of Section 20 in the facts and circumstances of the case. We
need not, however, refer to it nor to his other arguments since we are
referring the very special leave petition to the Constitution Bench where, of
course, it would be open to both the parties to raise all such contentions as
are open to them in law.
14.
When we indicated our inclination to refer the matter to the Constitution
Bench, Shri Jethmalani made a fervent plea for releasing the petitioner on
interim bail. We are, however, not inclined to accede to the said request. It
is sufficient to observe that it shall be open to the petitioner to make this
request, if he is so advised, before the Constitution Bench.
15.
Since the present special leave petition is one directed against an order
refusing bail and also because it is in the interests of justice that the
questions indicated hereinabove are decided authoritatively at an early date,
this is a case, in our opinion, which merits an expeditious hearing. It is open
to the learned counsel for the parties to make a mention in this behalf before
the Hon'ble Chief Justice of India.
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