Subhash Singh Thakurshyam Kishore Garikapatti Chandrakantan Vs. State  INSC 815 (6 November 1997)
MUKHERJEE, K.T. THOMAS
6TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice M.K.Mukherjee Hon'ble Mr. Justice K.T.Thomas V.R.Reddy, Additional
Solicitor General, Arun Jaitley, V.C.Mahajan, V.S.Kotwal, Rajinder Singh, S.R.Chitnis,
K.T.S. Tulsi, Gopal Subramanium, M.N.Sukumaran Nair, S.B.Wad, Sr.Advs., H.R.Khan,
I.U.Khan, Rajeev K.Singh, Chandra Kant Nayak, R.N.Keshwani, D.K.Garg, Alok Mahajan,
P.N.Gupta, C.R.Dighe, Ms. Late Krishnamurti, Vikas Pahwa, Anil K.Gupta, Ranjit
Thomas, Ms.C.K. Sucharita, K.R.Nambiar, M.T.George, M.Nizamudeen, ,Sunil Mehta,
Arun K.Sinha, A.Mariarputham, P.Parmeswaran, Y.P.Mahajan, T.C.Sharma, Advs.
with them for the appearing parties.
following Judgment of the Court was delivered:
APPEAL NO.311 OF 1997 WITH CRIMINAL APPEAL NO. 438 OF 1997 AND CRIMINAL APPEAL
NO.445 OF 1997 AND CRIMINAL APPEAL NO. 447 OF 1997 AND CRIMINAL APPEAL NO. 486
OF 1997 Jayendra Thakur @ Bhai Thakur The Govt. of National Capital Territory of Delhi/C.B.I AND CRIMINAL APPEAL
NO. 418 OF 1997 Sabu V. Chacko Union of India AND CRIMINAL APPEAL NO. 440 OF 1997
S.P. Rai State through C.B.I AND CRIMINAL APPEAL NO. 374 OF 1997 M/s. East West
Travel & Trade Links Ltd.
Union of India AND CRIMINAL APPEAL NO. 545 OF 1997 Paresh Mohan Desai The Govt
of National Capital Territory of Delhi/C.B.I. AND CRIMINAL APPEAL NO. 591 OF 1997 Mohd. Ahmed Mansoor
The State through C.B.I.
twelve accused persons arraigned before a Designated Court In Delhi, ten were
convicted of different offences under Terrorist and Disruptive Activities
(Prevention) Act 1987 (for short 'TADA'). They are the appellants before us.
Some of them were found to be members of a terrorists gang called 'Davood Ibrahim
Group.' Three persons, including a former Union Minister of State for Power (Kalpnath
Rai) were found to have harboured hardcore terrorists, besides fastening such a
finding with A12 (M/s East West Travel and Trade Links Ltd). All of them except
the company were sentenced to varying terms of imprisonment (three of them to
life imprisonment) and fine ranging from Rupees ten lakhs downwards. A-12,
company was sentenced to a whopping fine of Rs. fifty lakhs.
incipient backdrop with events which culminated in the nabbing of five accused
(A1-Subhash Singh Thakur; A2- Jaynendra Thakur @ Bhai Thakur; A3-Shyam Kishore Garikapti;
Patil and A5-Paresh Mohan Desai) has been delineated by the prosecution by
referring to three different incidents which took place during the nascent
stages. The first was in incident which happened on 30.40.1991 when a ruthless
attack was launched on the villagers at Vadrai (a coastal village in Maharashtra) in retaliation for picking up the
scattered silver bars strewn in the sea from a capsized vessel employed by some
smugglers. (The said incident is referred to in the evidence as Vadrai
incident). The second one happened in the City of Mumbai when a number of multistory
buildings were blasted with bombs on 12.3.1993 in which a lot of people died
and a lot others were seriously injured. (That incident is referred to in
evidence as Bombay blast). The third is some
terrorists armed with highly sophisticated weapons, had gatecrashed into the JJ
hospital Bombay where some former members of a terrorists gang were hospitalised
and they were all shot dead by the intruders. (That incident is referred to as
the Jj shoot-out case).
some time in early July 1993 the Delhi Police were getting secret informations
that certain members of a terrorists gang having nexus with "Davood Ibrahim
group" have escaped from Bombay and perched in hideouts in Delhi.
hiding terrorists were closely watching the developments following the arrest
of one Amit Tyagi who belong to yet another terrorists' gang. They feared that
the police might track them down getting scent from the arrested terrorist.
Delhi Police were on the alert the arrested terrorist. Delhi Police were on the
alert to trace out such hide-outs. Delhi Crime Branch Police formed a squad to
prevent any blitz being operated by the hiding terrorists.
23.7.1993 Delhi Crime Branch Police got secret information about the movements
of certain terrorists and that they might proceed to Indira Gandhi International Airport as part of an orchestrated cabal to strike at designed
targets. So a posse of police personnel, headed by Shri Ajay Kumar, Assistant
Commissioner of Police, proceeded to Gagan Vihar Extension, Vikas Marg, Delhi in six private cars and reached
there by 3.00 A.M. The police-party got themselves
divided into four different teams and each took different strategic position by
keeping a close vigil on the suspected persons.
the wee hours, around 4.00
A.M. accused 1 to 5
sneaked out from their hiding place in a Toyota car. The police party stopped the car. When its driver tried to reverse
it in a bid to escape, the police-party surrounded the vehicle. They caught the
five accused red-handed with lethal arms as well as ammunitions. A-1 Subhash
Singh Thakuar had a pistol (0.38 bore) and four live cartidges; A- 3 Shyam Kishore
Garikapti had a country-made pistol and some cartridges; A-4 Chanderkant Patil
had a revolver (0.38 bore) and four live cartridges; A5 Paresh Mohan Desai had
a button actuated Knife. With the help of Fateh Singh, SI of the Bomb Disposal
Squad, the hand-grenade was dismantled and diffused. The police-party seized
all the lethal weapons as well as ammunitions under seizure memorandums
prepared then and there. Requisitions were forwarded to the DCP seeking
permission to proceed with the case and after obtaining written permission they
arrested the five accused and brought them to the police station.
26.7.1993, investigation of this case was made over to the Central) Bureau of
Investigation as per orders of the Government. On interrogation of the five
accused CBI officials came to know that there were links between them and other
24.10.1993, the CBI officials caught A-6 Ahmad Mansoor @ Suhel Ahmed from near Jama
Masjid area in Delhi, being an active associate of the
arrested persons besides being a member of the "Davood Ibrahim
group." It was further revealed that A-6 Ahmad Mansoor and other
terrorists were sheltered by A-9 (Kalpnath Rai) in the guest house of National
Power Transmission Corporation (NPTC) at Safdarjang Development Area in New Delhi. Such accommodation was arranged by
A-9 through his Personal Secretary S.P. Rai (A- 8). It was also revealed that
A-10 (Brij Bhushan Saran Sing) a Member of Parliament had sheltered some
terrorists in his residence at New Delhi. It
was also known that A6-Ahmad Mansoor had received substantial financial help
from A7 (Sabu V.Chako) who gave shelter to A1 (Subhash Singh Thakur) as well as
one B.N.Rai (another hardcore terrorist) in his "Hotel Hans Plaza"-
During investigation PW-45 (Superintendent of Police) recorded confessional
statements made by A-1 to A-6 in the purported exercise of Section 15 of TADA.
Section to prosecute A1 was accorded by the Director of CBI, for the offence
under Section 3(S) of TADA and Section 25 of the Arms Act, 1959. Charge-sheet,
at the first instance, was filed against A1 to A6 for the said offences.
Learned Judge of the Designated
consideration of the charge-sheet, found that there were materials to proceed
against A7 (Sabu Chako) for harbouring some terrorists. Thereupon he issued
summons to that accused. Subsequently the CBI filed as supplementary charge-
sheet against A8 (SP Rai), A9 (Kalpnath Rai), A10 (Brij Bhushan Saran Singh),
A11 (Sanjay Singh) and A12 (M/s East West Travel and Trade Links Ltd.) on the
allegations that those accused have harboured one or another terrorist during
some time or the other.
A-11 (Sanjay Singh) could not be brought to trail, inspite of many efforts, he
was declared a proclaimed offender and the case against him was hence split up.
the Director of CBI accorded sanction to prosecute all the accused in the Designated Court. After hearing both the prosecution
and the accused charges were framed against different accused for different
offences under TADA and also under Section 25 of the Arms Act.
a long drawn trial, examining a large number of witnesses and marking a good
number of documents and after questioning each of accused under Section 313 of
the Code of Criminal Procedure (for short 'the Code') and after affording an
opportunity to the accused for adducing defence evidence the Designated Court
convicted A1, A2 and A3 under Section 3(5) and Section 5 of the TADA and also
under Section 25 of the Arms Act, (Each of them was sentenced to undergo
imprisonment for life and a fine of rupees ten lacs under first count,
imprisonment for five years and a fine of rupees ten thousand under the second
count, imprisonment for three years and a fine of rupees ten thousand under the
third court) A-4 was convicted under Section 3(4) and Section 5 of the TADA as
well as Section 25 of the Arms Act. (He was sentenced to undergo imprisonment
for life and a fine of Rs. five lacs on the first count, imprisonment for five
years and a fine of rupees ten thousand on the second count, and imprisonment
for three years and a fine of rupees ten thousand on the third count).
was convicted only under Section 25 of the Arms Act and was sentenced to
undergo imprisonment for the period he had already undergone and to pay a fine
of rupees ten thousand. A6 was convicted under Section 3(5) of the TADA and was
sentenced to undergo imprisonment for life and to pay a fine of rupees five lacs.
A8, A8 and A12 were convicted under Section 3(4) of TADA. (A7 was sentenced to
imprisonment for five years and a fine of rupees ten thousand. A8 was sentenced
to imprisonment for five years and to pay a fine of rupees five hundred. A8 was
sentenced to undergo imprisonment for ten years and to pay a fine of rupees ten
lacs. A12 was sentenced to pay a fine of rupees fifty lacs and a period was
fixed for its payment and provision was made for recovery of the fine in
default of payment committed by the company.) A10 (Brij Bhusan Saran Singh) was
heard arguments of different senior counsel for different appellants at length.
Shri V.R. Reddy, Add1.
General argued for CBI in defence of the conviction and sentence passed on the
deem it necessary to deal first with the contention pertaining to the
requirement in Section 20A(1) of the TADA.
that contention deserves acceptance the entire charge and the subsequent
proceedings would stand vitiated. The sub- section reads like this:
Notwithstanding anything contained in the Code, no information about the
commission of an offence under this Act shall be recorded by the police without
the prior approval of the District Superintendent of Police." All the
senor counsel contended that the said requirement was not complied with in this
case before FIR was registered in respect of each of the five accused
intercepted on 23.7.1993. PW1 (Prithvi Singh-Inspector of Crime Branch) who
claimed to have been in the raiding operation has deposed that immediately
after the arrest of the armed men he sent a written application to DCP (same
rank as District Superintendent of Police) seeking permission to register the
case against first accused under the TADA. According to PW1 the application so
forwarded is Ext. PW1/A and DCP has accorded approval thereon. Similar
applications were forwarded by the persons who headed the other three teams
also and they to claimed to have obtained similar approval. The said factual
position adopted by the Crime Branch was very hotly assailed during cross-
the applications for approval were typewritten records. PW1 has said during
cross-examination, that one typewriter was brought from the office of the ACP
to the venue of capture of the accused and all the applications were got
typewritten on it. The trial judge was not persuaded to believe this part of
the evidence of the prosecution because the types found on different
applications could only have been produced from different typewriters.
the application and we are satisfied that there is considerable force in the
contention of the defence that all the applications were not typed on the same
typewriter. So the stand of the prosecution that written requests were made by
the police party for approval cannot be believed and the contention of the defence
on that score was rightly repelled by the Designated Court.
the above finding is not enough to end the travails of the appellants in this
case. Ex. PW-1/D is the report (Rukka) which PW1 submitted to the Crime Branch
Police Station and Ex. PW10.A is the FIR prepared by the said police on its
basis. It is clearly mentioned in the former that "permission for
registration of the case was obtained from DCP/CR after informing him of the
facts and circumstances." The said fact is mentioned in the FIR also.
factual position is this. PW 10/A is the FIR. it could only have been made with
the approval obtained from the DCP, though it might not have been a written
question is whether prior approval envisaged in Section 20A(1) of the TADA
should necessarily be in writing.
is nothing in the sub section to indicate that prior approval of the District
Superintendent of Police should be in writing. What is necessary is the fact of
approval which is sine qua non for recording the information about the
commission of the offence under TADA. The provision is intended to operate as a
check against police officials of lower ranks commencing investigation into
offences under TADA because of the serious consequences which such action
befalls the accused. However, the check can effectively be exercised if a
superior police official of the rank of DSP first considers the need and
feasibility of it. His approval can be obtained even orally if such an exigency
arise in a particular situation. So oral approval by itself is not illegal and
would not vitiate the further proceedings.
apart, one of the offence included in the FIR (Ex. PW10/A) is Section 5 of the
Explosive Substances Act. There is no legal requirement to obtain prior
permission from the DSP to register a case for that offence. So the FIR as such
was not vitiated even otherwise. Perhaps investigation into the offences could
not have been commenced until approval was obtained from the DSP. Be that as it
may, as we found that oral approval was obtained from the DSP concerned, that
is sufficient to legalise the further action.
Ahmad Umar Saeed Sheikh vs. State of U.P.
[1996 (11) SCC 61] an FIR was registered under Sections 332, 307, 427 of the
IPC and also under Sections 3 and 4 of the TADA. No prior approval was obtained
in that case under Section 20A(1) and hence it was contended that the entire
FIR was liable to be quashed. A Bench of two judges of this Court has repelled
the contention and observed thus:
is of course true that when the above FIR was recorded no prior approval of the
Superintendent of Police was obtained as required under Section 20A(1) but, as
noticed above, the FIR was recorded not only for offences under TADA but also for
offences under the Indian Penal Code for commission of which the police officer
concerned was competent to lodge an FIR without such approval. The absence of
approval of District Superintendent of Police as required under Section 20A(1)
of TADA at that stage only disentitled the investigating agency to investigate
into the offences relating to TADA but it had a statutory right to investigate
into the other offence alleged in the FIR." The next hurdle which
prosecution has to surmount was regarding sanction under Section 20A(2) of the
TADA. The sanction accorded by the Director of the C.B.I. to prosecute A-1 to
A-6 has been marked in this case as Ext. PW-93/27.
order narrates the facts leading to the seizure of arms and ammunitions from
A-1 to A-5 and also about the activities of A-6. In the operative portion
thereof the Director has stated thus:
WHEREAS I. K. Vijay Rama Rao, Inspector General of Police, Delhi Special Police
Establishment & Director, Central Bureau of Investigation, New Delhi being
the competent authority to sanction prosecution in respect of offences
3(5) of TADA (p) ACT, 1987 and
Act, 1959 fully and carefully examining the material placed before me in regard
to the said allegations and circumstances of the ace consider that accused
Scubas Sing Thakur, Jaynendra Thakur, Shyam Kishore Garikapatti, Chandrakant Patil,
Paresh Mohanlal Desai and Mod. Ahmed Mansoor should br prosecuted in the court
of law for the said offences.
THEREFORE, I ........ do hereby accord sanction u/s 20(A)
TADA (P) ACT, 1987 for the
of S/Sh. Subhash Singh Thakur, Jayendra Thakur, Shyam Kishore Garikapatti, Chandrakant
Patil, Paresh Mohanlal Desai and Mohd. Ahmed Mansoor for the said offences in
respect of abovesaid acts and taking of cognizance of the said offences by the
court of competent jurisdiction." Learned counsel for the appellants made
multi-pronged onslaught on the aforesaid sanction. First is that the sanction
is not sufficient to proceed against the accused under Section 3(4) and under
Section 5 of the TADA. Second is, the sanctioning authority did not intend
prosecution proceedings to be launched against the appellants for any offence
other than those specifically mentioned in the sanction order. Third is, the
sanction even in respect of offences mentioned therein is without application
of mind of the sanctioning authority.
observe, straightway, that we are not impressed by the third point as we are
satisfied, by reading the sanction order, that the authority concerned was
satisfied of the facts constituting the offences mentioned therein. Of course, Shri
V.S. Kotwal, learned senior counsel contended that sanctioning authority did
not have necessary materials before him to show that the arms seized on
23.7.1993 were live arms. But the report of the officers who seized them to the
effect that they were live arms was available to the Director of C.B.I. If he
felt that such a report can be believed it is not necessary that the Director
should have waited for the result of the analysis conducted by the laboratory
upon those arms. That the sanctioning authority really intended to launch
prosecution for the offence of illegal possession of arms is quite clear from
the statements made in the order. True, the section for the offence (Section 5
of TADA) has not been specifically mentioned therein but that is of no serous
consequence as long as the authority has specified the facts and mentioned
further that for the offence arising from such facts, sanction is accorded.
this context we would refer to Section 465 of the Code:
Finding or sentence when reversible by reason of error, omission or
irregularity.- (1) Subject to the provisions hereinbefore contained, on
finding, sentence or order passed by a court of competent jurisdiction shall be
reversed or altered by a court of appeal, confirmation or revision o account of
any error, omission or irregularity in the complaint, summons, warrant, proclamation,
order, judgment or other proceedings before or during trial or in any inquiry
or other proceedings under this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the opinion of that Court, a failure of
justice has in fact been occasioned thereby.
determining whether any error, omission or irregularity in any proceeding under
this Code, or any error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have regard to that fact
whether objection could and should have been raised at an earlier stage in the
proceedings." In the corresponding provision under the old Code (of 1898)
the words "or any error or irregularity i any sanction for the
prosecution" were absent. Legal position under the old Code, as settled by
the decisions of various courts, was that any defect in sanction was not
curable and hence the prosecution itself would have been void. [vide Dr. Hori
Ram Singh vs. Emperor (AIR 1939 FC 43), Gokulchand Dwarkadas Ramayya Munipalli
vs. State of Bombay (AIR 1955 SC 287).
Parliament enacted the present Code they advisedly incorporated the words
"any error or irregularity in any sanction for the prosecution" in
Section 465 of the present Code as they wanted to prevent failure of
prosecution on the mere ground of any error or irregularity in the sanction for
prosecutions. An error or irregularity in a sanction may, nevertheless, vitiate
the prosecution only if such error or irregularity has occasioned failure of
counsel adopted a twin contention on this aspect. First is that the defence has
raised this objection at the earliest instance itself as they were concerned
with the impact of such irregular sanction affecting the prosecution. Second is
that non-mention of other offences in the sanction is not merely an
irregularity but it will go to the root of it.
(2) of Section 465 of the Code is not a carte blanche for rendering all trials
vitiate on the ground of the irregularity of sanction if objection thereto was
raised at the first instance itself. The sub-section only says that "the
court shall have regard to the fact" that objection has been raised at the
earlier stage in the proceedings. It is only one of the considerations to be weighed
but it dos not mean that if objection was raised at the earlier stage, for that
very reason the irregularity in the sanction would spoil the prosecution and
transmute the proceedings into a void trial.
V.R. Reddy, learned Add1. Solicitor General, adopted another contention in this
context. According to hm, Section 12(2) of the TADA is sufficient to equip the
Designated Court with valid jurisdiction to convict any accused for any other
offence whether or not sanction for such offence was also accorded. The said
sub-section reads as under:
in the course of any trial under this Act of any offence, it is found that the
accused person has committed any other offence under this Act or any rule made thereunder
or under any other law, the Designated Court may convict such person of such
other offence and pass any sentence authorised by this Act or such rule or, as
the case may be, such other law, for the punishment thereof." There the
words "in the course of any trial under this Act of any offence" pertain
to the trial in respect of an offence for which sanction has been accorded by
the authority as contemplated under Section 20A(2) of the TADA.
the words "any other offence under this Act or any rule made thereunder or
under any other law" denote all offences other than those falling in the
first category. The intention of the Parliament in conferring such a power on
the Designated Court is to prevent unmerited escape of
offenders from the clutches of penal consequences even in cases where the Designated Court is satisfied during a valid trial
that some other offence has been established beyond reasonable doubt. Once
cognizance of any offence under TADa has been taken validly by the Designated Court with a proper sanction the court is
not disabled from convicting an accused for any other offence proved during the
trial, whether or not sanction has been accorded in respect of such other
offence. The raisin d'etre is that it is the court of law which after a
judicial scrutiny is satisfied on the materials placed before it that another
offence has been made out and such satisfaction is of a higher calibre than the
satisfaction of a sanctioning authority. The sanction envisaged in Section 20A.
is, of course, a curb imposed on the prosecution agency to approach the Designated Court with a case. But once such approach
is validly made with the proper sanction then the court gets a wider
jurisdiction to deal with the offenders in respect of all offences made out in
A-2, A-3 and A-6 were convicted under Section 3(5) of TADA in addition to other
offences. For convenience, we reproduce the sub-section here:
person who is a member of a terrorists gang or a terrorists organisation, which
is a involved in terrorist act, shall 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." The
sustainability of the conviction thereunder is assailed before us from
different angles. First is that the provision itself is invalid due to stark
vagueness. Second is, to claw down to the tentacles of the provision it is not
enough that the accused concerned is a terrorist by himself, but he should have
membership in a terrorists gang which is involved in terrorist acts. The third
is that both ingredients i.e. membership of terrorists' gang and involvement of
such gang terrorist acts, must have taken place after the sub-section was
enacted. According to the counsel there is utter lack of evidence in this case
in that regard.
3(5) was inserted in TADA by Act 43 of 1993 which into force on 23.5.1993.
Under Article 20(1) of the Constitution "no person shall be convicted of
any offence except for violation of a law in force at the time of the commission
of the act charged as an offence". So it is not enough that one was member
of terrorists gang before 23.5.1993.
are two postulates in sub-section (5). First is that the accused should have
been a member of "a terrorists gang" or "terrorists organisation"
after 23.5.1993. Second is that the said gang or organisation should have
involved in terrorist acts subsequent to 23.5.1993. Unless bot postulates exist
together Section 3(5) cannot be used against any person.
act" is defined in Section 2(h) as having the meaning assigned to it in
Section 3(1). That sub-section reads thus:
with intent to overawe the Government as by law established or to strike terror
in people or any section of the people or to alienate any section of the people
or to adversely affect the harmony amongst different sections of the people
does any act or thing by using bombs, dynamite or other explosive substances or
inflammables substances or fire- arms or other lethal weapons of poisons or
noxious gases or other chemicals or by any other substances (whether biological
or otherwise) of a hazardous nature in such a manner as to cause, or as is
likely to cause, death of, or injuries to, any person or persons or loss of, or
damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community, or detains any person and
threatens to kill or injure such person in order to compel the Government or
any other person to do or abstain from doing any act, commits a terrorist
act." The requirements of the sub-section are: (1) the person should have
done an act in such a manner as to cause, or as is likely to cause death or
injuries to any person or damage to any property, or disruption of any
supplies; (2) doing of such act should have been by using bombs dynamites etc.;
(3) o alternatively he should have detained any person and threatened to kill
or injure him in order to compel the Government or any other person to do or
abstain form doing anything.
does a terrorist act falling within the aforesaid meaning is liable to be
punished under sub-section (2) of Section 3. But there are some other acts
closely linked with the above by not included in sub-section (1), such as
entering into a conspiracy to do the above acts or to abet, advise, incite or
facilitate the commission of such acts. Such acts are also made punishable
under sub-section (3) which reads thus:
Whoever conspires or attempts to commit, or advocates, abets, advises or
incites or knowingly facilitates the commission of, a terrorists act or any act
preparatory to a terrorist act, shall 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." Can it be said
that a person who conspires, abets, advises or incites or facilitates the
commission of the acts specified in sub-section (1) was not committing a
terrorist act? It would be illogical delink the acts enumerated in sub-section
(3) from those specified in sub-section (1) for the purposes of understanding
the meaning of "terrorist act" indicated in Section 3(5).
a cardinal principal of interpretation of law that the definition given in a
statute is not always exhaustive unless it is expressly made clear in the
statute itself. They key words in the definition section (section 2) themselves
are clear guide to show that the definitions given thereunder are to be
appropriately varied if the context so warrantees. The key words are these:
"In this Act, unless the context otherwise requires".
the meaningful understanding should be this.
the purpose of sub-section (2) the terrorist acts are those specified in
sub-section (1) whereas fro the purpose of sub-section (5) the terrorist acts
would embrace not only those enumerated in sub-section (1) but those other acts
closely linked to them and indicated in sub-section (3) also.
so understood, if there is any evidence to show that the gang to which A-1,
A-2, A-3 or A-6 or any of them was a member, has done any such act after
23.5.1993 then the accused concerned is liable to be convicted under Section
3(5) of TADA.
the fact is, in none of the charges framed against the above accused there is
any specification that any terrorist act has been committed by a gang
subsequent to 23.5.1993, nor has any evidence, whatsoever, been adduced to show
that any terrorists gang (of which those accused are the members or not) has
committed any terrorist act after the said date.
light of stark paucity of materials in evidence and in view of total want of
any averment in the charges regarding any activity after the said date it would
be an idle exercise to further probe into the width and amplitude of the
expression "terrorists gang" or "terrorist organisation" or
as to whether A-1, A-2, A-3 or A-6 were members of any such gang.
result of the above discussion is that conviction of A-1 to A-6 for the offence
under Section 3(5) of TADA cannot be sustained under law.
we proceed to consider whether the offence under section 3(4) of TADA has been
made out against A-7 (Sabu V.Chako), A-8(SP Rai), A-9 (Kalpnath Rai) and A-12
(M/s East West Travel Links). Before we take up the individual case against
each one of them we may refer to the contention severally made by the learned
counsel on a point of law as against the conviction under Section 3(4),
Sub-section (4) of Section 3 of TADA reads thus:
harbours or conceals, or attempts to harbour or conceal, any terrorist shall 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." The word "harbours" has not been defined in TADA. An endeavour
was made, during arguments, to hook with the meaning attached to the same word
in the Indian Penal code on the strength of section 2(1)(i) of the TADA which
reads thus:- "Words and expression used but not defined in this Act and
defined in the code shall have the meanings respectively assigned to them in
the code." The Word "Code" in TADA must be understood as
referring to the Code of Criminal Procedure. 1973, as per Section 2(1)(b) of
TADA. But the word "harbour" has not been defined in the Code.
Section 2 of the Code which is a fasciculus of definition clauses contains an
opening to the definition clauses in the Indian Penal Code by the following
words in clause 'Y' of Section 2 of the Code:
and expression used herein and not defined but defined in the Indian Penal Code
(45 of 1860) have the meanings respectively assigned to them in that
Code." On the strength of the above provision learned counsel contended
that the word "harbour", which is not defined in TADA, must be
understood in the same manner as it is understood in the Indian Penal Code.
are two hurdles in the way to adopt the IPC definition of the word "harbour"
as for TADA. First is that TADA permits reliance to be made only on the
definitions included in the Procedure Code and not on the definitions in the
IPC. Second is, the word "harbour" as such has not been used in the
Procedure Code and hence the question of side- stepping to Penal Code
definitions does not arise.
that as it may, we would refer to the expression "harbour" as
understood in IPC, for, TADA is essentially a penal statute and hence the
meaning attached to the words in the IPC can have a bearing on the words used
in TADA, unless they are differently defined in the Code.
52-A of India Penal Code defines the word "harbour" as including:
a person with shelter, food, drink, money, clothes, arms, ammunition or means
of conveyance, or the assisting a person by any means, whether of the same kind
as those enumerated in this section or not to evade apprehension."
Sections 136 and 312 of IPC are the provisions incorporating two of the offence
involving "harbour" in which the common words used are "whoever
knowing or having reason to believe." Another offence in the Penal Code
involving "harbour" is section 157 wherein also the words
"whoever harbours knowing that such person etc." are available. It
was contended that mens rea is explicitly indicated in the said provisions in
the Penal Code whereas no such indication is made in Section 3(4) of TADA and
therefore, the elements of mens rea must be deemed to have been excluded from
the scope of Section 3(4) of TADA.
word "harbours" used in TADA must be understood in its ordinary
meaning as for penal provisions. In Black's Law Dictionary its meaning is shown
as "to afford lodging to, to shelter, or to give a refuge to".
Quoting from Susnjar vs. U.S., CCA Ohio, 27 F.2d 223, 224, the celebrated
lexicographer has given the meaning of the word harbour as 'receiving
clandestinely and without lawful authority a person for the purpose of so
concealing him that another having a right to the lawful custody of such person
shall be deprived of the same." In the other dictionaries the meaning of
the said word is delineated almost in the same manner as above. It is,
therefore, reasonable to attribute a mental element (such as knowledge that the
harboured person was involved in a terrorist act) as indispensable to make it a
penal act. That apart, there is nothing in the Act, either expressly or even by
implication, to indicate that mens rea has been excluded from the offence under
Section 3(4) of TADA.
is catena of decisions which has settled the legal proposition that unless the
statute clearly excludes mens rea in the commission of an offence the same must
be treated as essential ingredient of the criminal act to become punishable. (State
of Maharashtra vs. Mayer Hans George, AIR 1965 SC 722, Nathulal vs. State of
M.P., AIR 1966 Sc 43).
Section 3(4) is understood as imposing harsh punishment on a person who gives
shelter to a terrorist without knowing that he was a terrorist such an
understanding would lead to calamitous consequences. Many an innocent person,
habituated to offer hospitality to friends and relatives or disposed to zeal of
charity, giving accommodation and shelter to others without knowing that their
guests were involved in terrorist acts, would then be exposed to incarceration
for a long period.
all the above reasons we hold that mens rea is an essential ingredient for the
offence envisaged in Section 3(4) of TADA.
above understanding of the legal position we may say at this stage that there
is no question of A-12 - company to have had the mens rea even if any terrorist
was allowed to occupy the rooms in Hotel Hans Plaza. The company is not a
natural person. WE are aware that in many recent penal statutes, companies or
corporations are deemed to be offenders on the strength f the Acts committed by
persons responsible for the management of affairs of such company or
corporations e.g. Essential Commodities Act, Prevention of Food Adulteration
Act etc. But there is no such provision in TADA which makes the company liable
for the acts of its officers. Hence, there is no scope whatsoever to prosecute
a company for the offence under Section 3(4) of TADA. The corollary is that the
conviction passed against A-12 is liable to be set aside.
V. Chacko) the Regional Manager of A-12 company has been convicted of the
offence under Section 3(4) on the strength of a finding that he had harboured
A-6 Ahmed Mansoor in Hotel Hans Plaza, New Delhi on different days during a
period between February and October 1993. For proving the said offence against
him prosecution should have established four facts. They are: (10 A-6 Ahmed Mansoor
had stayed in the Hotel; (2) Such stay was arranged at the behest of A-7; (3)
A-6 himself was a terrorist; and (4) A-7 knew that A6 was a terrorist.
Subramaniyam, learned senior counsel who argued for A-7 contended that even the
first fact has not been established in this case and hence there is no need to
proceed to the other essentials.
is enough evidence in this case to show that a person called "Suhel
Ahmed" had stayed in the said hotel during the said period. We do not
think it necessary to refer to the evidence in that respect as it is not a
disputed fact. However, there must be evidence to show that the said Suhel
Ahmed is A-6 Mansoor. Unfortunately no witness has started so nor has any one
identified the said Suhel Ahmed as one of the arraigned accused. An endeavour
was, of course, made by the prosecution to show that A-6 had impersonated in
other areas as Suhel Ahmed. Even if it was so, what should have been
established is that A-6 had stayed in the hotel. But not witness said that fact
judge of the Designated
Court has relied on
two letters which he had received presumably from A-7 while the accused was
languishing in Jail during the pre-trial period.
judge while questioning A-7 under Section 313 of the Code whipped out those
letters from his pocket, marked them as Ext. DA-7/1 and DA-7/2 and asked the
You had submitted to this court document Ex. DA-7/1 & DA-7/2 under your
signatures, What have you got to say? Before A-7 answered the question he
wanted to go through them and after going through the letters he answered thus:
documents bear my signatures.
were prepared by my brother and my representatives but I had signed them
without reading them.
were submitted to the court on my behalf but I was not having any knowledge
whether these have been submitted to the court or not." The above letters,
read as a whole, were in substances a litany of his innocence. Such as:
lord, Sir, I suffered all these 9 months for not being guilty. Sir I have a
family. I have only a small dram, to lead a good life with my family without
any over ambitions.
pain and sorry I request you to please take appropriate actions against the
people who tell and spread the untold story which you or CBI never told.
Because that is an assasination of the character of a person who does not know
anything or did not do anything wrong. My Lordship, I have never even heard the
name of A1 to A6. or met them in any life before I came to jail.
name of Jesus I can assure you these things. My Lordship, I am swearing in the
name of God, I am an innocent man, Please relieve me from this agony and pain.
Please relieve me from this agony and pain. If not, I do not think I can take
all these things for long.
have pity on me." But the unfortunate aspect is, learned judge has
extricated one sentence out of those letters and used it as though it was art
of prosecution evidence against the accused and jettisoned the entire remaining
bulk of the letters which are lengthy supplications for kindness and mercy.
illegal on the part of the learned judge of the Designated Court to have used any part of the said letters, especially when
those letters were not adduced as evidence in the case through any procedure
known to law. Not even an affidavit has been filed by any one atheist for
formally proving those letters in evidence. Section 314 of the Code is intended
to afford opportunity to an accused "to explain any circumstance appearing
in the evidence against him." It is trite that an accused cannot be
confronted during such questioning with any circumstances which is not in
313 of the Code is not intended to be used as an interrogation. No trial court
can pick out any paper of document from outside the evidence and abruptly slap
it on the accused and corner him for giving an answer favourable or unfavourable.
The procedure adopted by the learned judge is using the said two letters is not
permitted by law. We therefore, disapprove the said course and dispel the said
letters book bell and candle.
remains as against A-7 is that one person by name Suhel Ahmed had stayed in
Hotel Hans Plaza - nothing more and nothing else. We need not, therefore,
proceed further to the other three requirements necessary to fasten him with
liability under section 3(4) of TADA. The result is, conviction of A-7 in this
case cannot be upheld.
case against A8. (S.P. Rai) and A-9 (Kalpnath Rai) can be considered together
so that much overlappings and repetitions can be averted. A-8 was the
Additional Personal Private Secretary of A-9 during the tie when the latter was
Union Minister of State for Power. The charge against them is that they have
sheltered two terrorists (A-1 Subhash Singh Thakur and another person called
"V.N. Rai") in the guest house attached to the National Power Transmission
Corporation (NPTC for short), now known as Power Grid Corporation. V.N. Rai is
said to be an accused in JJ shoot out case. The finding of the Designated Court is that A-8 had harboured A-1 Subhash
Singh Thakur and A-9 has harboured V.N. Rai during certain period in 1992.
learned senior counsel who argued for the accused has contended that even
assuming that a person by name V.N. Rai had stayed in the NPTC Guest House
there is no evidence that he was a terrorist and that there is no shred of
evidence that A-9 knew that the said person was a terrorist.
seems to be some evidence to show that a person by name "B.M. Rai"
had stayed in the Guest House concerned.
was the Senior Manager (Admn.) in the Power Grid Corporation. He said that a
person called V.N. Rai had to be accommodated in the guest house on the
recommendation of A-8. This was corroborated by PW-38 who was Add1. General
Manager of the said corporation, though there is a little discrepancy in the
name mentioned by the last two witnesses (one said it was on B.N. Rai, the
other witness said that the name is B.M. Rai), but nobody had identified the
person called B.N. Rai or B.M. Rai in the trial court. There is nothing to show
that the said person had anything to do with any terrorist activity. Of course
prosecution made an endeavour to show that the person called B.N. Rai is the
same person arraigned in JJ shoot out case by name "Vijendra Rai".
Apart from the absence of any connecting nexus between Vijendra Rai in JJ shoot
out case and B.N. Rai (or B.M. Rai) who stayed in the guest house, there is no
legal evidence whatsoever to prove that Vijendra Rai himself was a terrorist.
appears that there is some evidence in this case to show that A-1 had stayed in
the NPTC Guest House but there is no evidence to show that is stay was at the
instance of A-8 S.P. Rai. Hence it is unnecessary to proceed to consider the
next aspect whether A-8 was having any knowledge then that A-1 was a terrorist.
result of the above discussion is that A-8 and A-9 cannot be convicted of the
offence under Section 3(4) of TADA.
to the case against A-4 that he had harboured A-1, A-2 and A-3, we must observe
that the only evidence on record on that score is the statement recorded from
those three accused by the Superintendent of Police. Those statements are
described as confessional statements. To what extent those confessional
statements have involved A-4 need be considered only if the confession of one
accused can be used against another accused.
15 of the TADA provides that "notwithstanding anything in the Code or in
the Indian Evidence Act ...... a confession made by a person before a police
officer not lower in rank than a Superintendent of Police ...... shall be
admissible in the trial of such person or co-accused, abettor or conspirator
for an offence under this Act or rules made thereunder provided that
co-accused, abettor or conspirator in charged and tried in the same case
together with the accused". In this context we may point out that the
words "or co-accused, abettor or conspiration" in the proviso were
not in the section until the enactment of Act 43 of 1993 by which those words
were inserted. By the same amendment Act Section 21 was also recast which, as
it originally stood, enabled the Designated Court to draw a legal presumption
that the accused had committed the offence "if it is proved that a
confession has been made by a co- accused that the accused had committed the
offence-" The legal presumption linked to an accused vis-a-vis a
confession made by a co-accused had been deleted by Parliament through Act 43
of 1993 and as a package inserted the words mentioned above in Section 15.
is the effect of such deletion from Section 21 and addition to Section 15 of
TADA? It should be remembered that under Section 25 and 26 of the Evidence Act
no confession made by an accused to a police officer, or to any person while he
was in police custody could be admitted in evidence, and under Section 162 of
the Code no statement made by any person during investigation to a police
officer could be used in a trial except for the purpose of contradiction. In
view of the aforesaid ban imposed by the legislature Section 15 of the TADA
provides an exception to the ban. But it is well to remember that other
confessions which are admissible even under the Evidence Act could be used as
against a co-accused only upon satisfaction o certain conditions. such
conditions are stipulated in Section 30 of the Evidence Act, which reads thus:
more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some other of such
persons is proved, the court may take into consideration such confession as
against such other person as well as against the person who makes such
confession." The first condition is that there should be a confession i.e.
inculpatory statement. Any exculpatory admission is not usable for any purpose
whatsoever as against a co-accused. The second condition is that the maker of
the confession and the co-accused should necessarily have been tried jointly
for the same offence. In other words, if the co-accused is tried for some other
offence, though in the same trial, the confession made by one is not usable
against the co-accused. Third condition is that the confession made by one
accused should affect himself as well as the co-accused. In other words, if the
confessor absolves himself from the offence but only involves the co-accused in
the crime, while making the confession, such a confession cannot be used
against the co-accused.
if no conditions are satisfied the use of a confession as against a co-accused
is only for a very limited purpose i.e. the same can be taken into
consideration as against such other person. It is now well settled that under
Section 30 of the Evidence Act the confession made by one accused is not
substantive evidence against a co-accused. It has only a corroborative value,
(vide Kashmira Singh vs. State of Madhya Pradesh - AIR 1952 SC 159, Nathu vs.
State of Uttar Pradesh - AIR 1956 SC 56, Haricharan Kurmi vs. State of Bihar -
AIR 1964 SC 1184) A confession made admissible under Section 15 of the TADA can
be used as against a co-accused only in the same conditions as stipulated in
Section 30 of the Evidence Act.
view of the above legal position the confession made by A-1(Subhash Singh Thakur),
A-1(Jaynendra Thakur and A- 3(Shyam Kishore Garikapti) cannot be used against
A- 4(Chanderkant Patil), even as for corroborative purposes because the former
set of accused were not tried for the offence under Section 3(4) of TADA. So
the first condition set for the in Section 30 of the Evidence Act is non-
existent. Though under Section 15 of TADA such a confession is admissible in
evidence even when the confessor and the co-accused are tried in the same case
(no matter that they are not tried together for the same offence) the utility
of such a confession as against the co-accused gets substantially impaired for
all practical purposes unless both of them are tried for the same offence.
Consequently in the present trial the confessions made by the first three
accused would remain at bay so far as A-4 (Chanderkant Patil) is concerned as
for Section 3(4) of TADA. The further corollary is since there is no
substantive evidence against A-4 regarding Section 3(4) of TADA he cannot be
convicted under this Section.
have to consider the case of prosecution that the police party conducted a raid
during the wee hours of 23.7.1993 and rounded up A-1 to A-5 red-handed with
illegal arms and ammunition while they were proceeding in a Toyota car.
have to observe, at the outset on this point, that even if prosecution story is
accepted by us and the finding of the Designated Court is upheld on this point we are unable to uphold the
conviction of A-5 (Paresh Mohan Desai) under Section 25 of the Arms Act. A-5
was found in possession of only a knife the length of which is 9.2".
of a knife, if that has to amount to an offence under the aforesaid provisions,
must be of such a knife which should answer the description specified in the
notification issued under Section 4 of the Arms Act. The notification which was
in force at the relevant time was No.
What is prohibited under the notification is possession of a knife having a
length of 7.62 cm. and a width of 7.2 cm. or above. In the charge framed against
A-5 (Paresh Mohan Desai) there is no averment that he possessed a knife of the
above description. Nor is there any indication in the document evidencing
seizure of the knife regarding its width. In view of the total absence of
anything in the evidence that A-5 possessed a knife of the description
specified in the notification, he would be entitled to an acquittal of the said
to the evidence, the police party went to Gagan Vihar Extension, Vikas Marg,
New Delhi in 6 motorcars and they reached the place by about 3 A.M. and they
got divided themselves into four different squads and remained at four
different spots within the proximity of the iron gate of the colony. When they
spotted the Toyota car moving out of the colony the
police party stopped it before the vehicle could cross the gate. It was
surrounded by the police personnel and the lethal weapons which were found in
the possession of the miscreants were seized.
Singh, Inspector of Crime Branch) has said in his evidence that the first squad
caught hold of A-4 (Chanderkant Patil) and seized a revolver and live
cartridges from him. That version is fully supported by PW-8 (Lalit Kumar, HC)
and PW-9 (Rajinder Gautam, Inspector) who were in that team. the second squad
caught hold of A-2 (Bhai Thakur) and seized one 0.38 pistol and 4 live
cartridges from him. That version is supported, inter alia, by PW-4 (Mehak
Sing, SI) and PW-5 (Ashok kumar, HC), who were in that team.
third team consisted of PW-6 (Roop Lal, SI), PW-7 (Surendra Singh, Constable),
PW-11 (Rajendra Singh, ASI) and PW-12 (Mahabir singh, HC) as well as others,
They caught hold of A-3 (Shyam Kishore Garikapati) and seized a country- made
pistol as well as alive cartridge for him. That version is spoken to by the
aforesaid witnesses besides PW-1 (Prithvi Singh).
fourth team consisted of PW-1 (Prithvi Singh), Inspector), PW-2 (Jagdish, ASI),
PW-3(Rakesh, Constable) and a few other policemen. They caught A-1 (Subhash
Singh Thakur) who had in his possession one hand-grenade wrapped in the raxine
bag. Immediately a requisition was sent to the Bomb Disposal Squad for defusing
the grenade which was promptly reciprocated. After it was defused the same
taken into custody. That version is fully supported by the aforesaid witnesses.
against the said version of the prosecution the five accused had put forth a
totally different version in their defence. According to them the police took
them into custody from different places on 19.7.1993 and detained them under
illegal custody and concocted the present version for the purposes of nailing
them to a charge under TADA.
counsel, who argued for different accused, amongst the first five, cited before
us a fact which looms large in all the confessions recorded by PW-45
(Superintendent of Police, Special Task Force of CBI). On three dates during
the second week of August 1993, the confessional statements of those accused
have been recorded by PW-45. What has been highlighted by the counsel is that
narration of the activities in all the confessional Statements stopped with
18.7.1993 and none among those confessors mentioned anything beyond 18.7.1993.
first blush, we also felt that the said circumstance is a formidable one
lending credence to the defence version. But a closer scrutiny of the evidence
dissuaded us from attaching any such significance to the said circumstance. It
cannot be assumed that PW-5 Superintendent of Police was unaware when he
recorded the confessional statement that the police version was in favour of
the arrest of those accused on 23.7.1993. Very probably the confessors had no
significant activity to be narrated after 18.7.1993 and it cannot be believed
that those confessors were unaware of what happened to themselves subsequent to
second point of attach was that the police party did not examine a single
independent witness to support the case that the 5 accused were rounded up on
the early hours of 23.7.1993, nor did they secure the signature of at least one
such independent person in any of the documents prepared at the time of seizure
of the arms and ammunition.
legal proposition it was argued that it would be unsafe to base a conclusion on
the evidence of police officers alone without being supported by at least one
independent person from the locality. To reinforce the said contention Shri. V.S.Kotwal,
Senior Advocate cited the decision of this Court in Pradeep Narayan Madqaonkar
& others vs. State of Maharashtra
[1995 (4) SCC 255] wherein want of independent witnesses of the locality
rendered suspicious a raid conducted by the police.
can be no legal proposition that evidence of police officers, unless supported
by independent witnesses, is unworthy of acceptance. Non-examination of
independent witness of even presence of such witness during police raid would
cast an added duty on the court to adopt grater care while scrutinising the
evidence of the police officers. If the evidence of the police officer is found
acceptable it would be an erroneous proposition that court must reject the
prosecution version solely on the ground that no independent witness was
examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee,
J) is a party, the aforesaid position has been stated in unambiguous terms, the
relevant portion of which is extracted below:
the evidence of the official (police) witnesses cannot be discarded merely on
the ground that they belong to the police force and are, either interested in
the investigation of the prosecuting agency but prudence dictates that their
evidence needs to be subjected to strict scrutiny and as far as possible
corroboration of their evidence in material particulars should be sought. Their
desire to see the success of the case based on their investigation, requires greater
care to appreciate their testimony." In Balbir Singh vs. [1996 (11) SCC
139] this Court has repelled a similar contention based on non-examination of
independent witnesses. The same legal position has been reiterated by this
court time and again vide Paras Ram vs. State of Haryana [1992 (4) SCC 662], Sama Alana Abdulla vs. State of Gujarat [1996 (1) SCC 427], Anil alias Andya
Sadashiv Nandoskar vs. State of Maharashtra [1996 (2) SCC 589], Tahir vs. State (Delhi) [1996 (3) SCC 338].
factual position is also to be mentioned now. PW-1 Prithvi Singh has said in
evidence that the police party had, in fact, tried to get one or two persons
who cam by that way to remain as witnesses for the action they were about to
take but none of them obliged. We should not forget that the time of the raid
was during the odd hours when possibly no pedestrian would have been trekking
on the road nor any shopkeeper remaining in his shop nor a hawker moving around
on the pavements.
counsel then pointed out from evidence that the Daily Dairy which was
maintained in the police station contained entries of all what happened on the
early hours of the crucial date. They are not produced. Counsel, therefore,
argued that an adverse inference can be made from the non- production of such
not find any force in the said contention No doubt Daily Diary is a document
which is in constant use in police station. But no prosecution is expected to
produce such diaries as a matter of course in every prosecution case for
supporting the police version. If such diaries are to be produced by
prosecution as a matter of course in every case, the function of the police
station would be greatly impaired. It is neither desirable nor feasible for the
prosecution to produce such diaries in all cases. Of course it is open to the defence
to move the court for getting down such diaries if the defence wants to make
use of it.
to the occurrence on the early house of 23.7.1993, we have before us the
consistent version of 11 witnesses, of course all of them police officers, who
have participated in the action. To support their version we have before us in
evidence Ext. PW-1/D Rukkha which reached the police station during the early
hours of the same ay itself which contains a narration of the events which took
place at Gagan Vihar extension Delhi. There
is no reason to doubt that the said Rukkha wold have been concocted
subsequently because an FIR was registered in the same police station the
strength of the facts revealed in the said Rukkha. The FIR is (Ext. PW-10/A).
We put on record that nobody had argued before us that the said FIR a
subsequent creation or was ante-dated.
reference to the evidence of PW-14 (Rajinder Kumar Jain) would be apposite in
this context. He is the owner of premises No. 105 Gagan Vihar Extension, Delhi (which was in the name of his wife)
which was rented out to A-4 (Chanderkant patil). The witness has said in
evidence that A-4 was staying in that apartment and in July 1993 he
accommodated 4 or 5 friends in the same apartment with the permission of the
landlord. The most important aspect of his testimony is, he had seen A-4 in the
apartment till 23.7.1993. Of course a suggestion was ut to him that he would
have seen A-4 only till 18th or 19th of July 1993, but the witness had
emphatically repudiated that suggestion.
evidence of PW-14 us almost a guarantee that A-4 was not taken into police
custody before 23.7.1993 and that his case in defence that he as actually
nabbed by police 19.7.1993 is not a true version.
we can unhesitatingly concur with the finding of the trial court that the
prosecution version regarding the rounding of A-1 to A-5 during the wee hours
of 23.7.1993 with arms and ammunition, is true.
upshot is the following: Prosecution has not established any case against A-5
to A-9 and A-12. Hence they are entitled to acquittal. We therefore, set aside
the conviction and sentence passed on them and acquit them. WE also set aside
the conviction and sentence passed on A-1 to A-3 under Section 3(5) of TADA and
on A-4 under Section 3(4) of TADA. But A-1, A-2, A-3 and A-4 cannot escape
conviction under Section 5 of TAA and Section 25 of the Arms Act. We confirm
their conviction under the said offences.
we are not satisfied that the minimum sentence of imprisonment for 5 years
awarded by the trial court to A- 1 to A-4 for the offence under Section 5 to
TADA is commensurate to the gravity of the offence. Perhaps the trial court
would have been persuaded to award that sentence in view of the fact that those
accused were sentenced to imprisonment under Section 3(5) of TADA. Now that we
have set aside the conviction of those accused of the offence under Section
3(5) of TADA we think that the sentence of imprisonment awarded to A-1 to A-4
for the offence under Section 5 of TADA must be enhanced. We can consider that
aspect only after hearing A-1 to A-4 on the point. Hence we direct the Registry
to serve notice on the counsel for A-1 to A-4 on the proposal to enhance the
sentence for the offence under Section 5 of TADA.