Shukla & Ors Vs. State of U.P. & Ors  Insc 636 (10 November 2005)
Agrawal & A.K. Mathur (With Slp(Crl) No. 1521/2004, T.P.(Crl) Nos. 82-84/2004 &
Crl.A. 1511/2005 @ Slp (Crl) No. 5609/2004) A.K. Mathur, J.
All these cases are inter-related and common arguments were raised,
therefore, they are disposed of by this common order.
Writ Petition Nos 132-134/2003 under Article 32 of the Constitution of India
is directed against the withdrawal of the POTA order by the State Government
dated 29th August 2003 against accused Udai Pratap Singh, Raghuraj Pratap Singh
@ Raja Bhaiya & Akshay Pratap Singh @ Gapalji. The Union of India was also
permitted to be impleaded as a party-respondent.
In SLP (Crl) 5609 of 2004, the petitioner has challenged the order passed by
the POTA Review Committee dated 30.4.2004 under Section 60 of the Prevention of
Terrorism Act, 2002 (15 of 2002) (hereinafter referred to as 'the POTA'). Leave
In SLP (Crl) 1521 of 2004, the High Court order dated 24.2.2004 was challenged
whereby accused Akshay Pratap Singh @ Gopalji was granted bail in case No.10 of
2003, under Section 3/4 of POTA, Police Station Kunda, District Pratapgarh,
U.P. on his furnishing a personal bond for Rs.1,00,000/- with two sureties each
in the like amount to the satisfaction of the Special Judge, designated court,
T.P (Crl) Nos. 82-84/2004 have been filed by the petitioners apprehending
that there is likelihood of miscarriage of justice in the State of U.P. seeking
transfer of cases pending against the accused persons from the Special Judge,
Kanpur Nagar U.P. to the Designated Court in Delhi In order to appreciate the
controversy involved in the matter, it will be proper to take the first case
i.e. SLP(Crl) 5609 of 2004 whereby the Review Committee reviewed the cases of
all the three respondents i.e. Raghuraj Pratap Singh alias Raja Bhaiya, Udai
Pratap Singh and Akshay Pratap Singh alias Gopalji under Section 3/4 of the
POTA Act and directed the State Government to release all these accused persons
and the proceedings against them shall deem to have been withdrawn from the
date of this direction and they may be released from the custody forthwith
under Section 3/ 4 of the POTA Act by order dated 30.4.2004. Aggrieved this
order, the present petition was filed by the appellant.
The prosecution case as disclosed in recovery memo dated 25.1.2003 of 13.45
hrs lodged at P.S. Kunda by Paramhans Mishra, Inspector In-charge, P.S. Kotwali
Kunda that he along with informant and other police officials raided the house
of Udai Pratap Singh for execution of warrant of arrest in crime No. 55/1993
under Section 2/3 of the Gangster Act pending before Special Judge, Allahabad.
They entered through main gate and went inside the Raj Mahal premises where
they found Shri Kesri Nandan, advocate, who told them that he is an advocate
for civil cases of Uday Pratap Singh. They found Uday Pratap Singh present in
Raj Mahal where he was standing with one piece of AK 56 rife with black colour
belt hanging on his right shoulder. In the rifle, there was triangular sign on
the butt with 56 written in between it, then something was written in Chinese
language and the number was printed 1600232 and the weapon was in perfect
condition and on his shoulder there was a bag with three pieces of magazines of
AK 56 rifle. After unloading the AK 56 rifle they found 36 bullets. When he was
asked to produce the licence, he could not show anything nor was he ready to
tell them how he had acquired all these items. It is further alleged that when
they entered into his bed room they found (i) 25 bullets of .75, .65 bores (ii)
16 bullets of 400 NITRO (iii) 1 bullet of .577 bore (iv) 3 other old rusted
bullets which were not able to read (v) 12 bullets of .405 (vi) 35 bullets of
77 mm and (vii) 35 bullets which are old, rusted and not readable. After that
they found a square wooden box yellow colored polythene bag which contained in
it about 200 gms of explosive chips and in gray colour polythene bag there was
some suspicious black power. In a white cotton bag there was blue colour
polythene which contained near about 400 gms suspicious brown colour powder. In
the same bed room in another corner 55 bullets .605 bore and 22 bullets of .22,
two pieces of Motorola wireless set.
They further raided the mango gardens of Uday Pratap Singh from two clues
given by Bhole Tewari. On the western direction of the Raj Mahal Bhadri, at 200
mtrs from the western wall at the mango gardens of Uday Pratap Singh, the
police discovered freshly dug mud. After digging 3 ft deep with length of 5 ft
and width of 4 ft they discovered three polythene green bags and they also
found (i) one DBBL gun (ii) another DBBL gun .12 bore (iii) another DBBL gun
No.4136 C/1 (iv) another DBBL gun number destroyed (v) one rifle (vi) one SSBBL
gun No.3077-1994 (vii) one SBBL gun number 12194-B.2 (viii) five pieces of
SSBBL guns (ix) two pieces of Mauzre guns (x) two pieces of Muzzle loading guns
(xi) thirteen pieces of swords (xii) two pieces of Hachet (xiii) two pieces of
iron spears (xiv) one cane with concealed sword (xv) one iron axe with cap and
(xvi) one big knife with handle.
On 26th January, 2003 they recovered one 30 spring field self loading rifle,
one 30 carbine, 11 cartridges of 30 spring field rifle and 30 cartridges of 30
carbine. These huge catchy of arms were recovered on the raid by the police on
25/26th January 2003 and, therefore, an order under POTA was passed against all
the three accused namely, Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap
Singh and Akshay Pratap Singh alias Gopalji by the State Government. All this
recovery of arms, ammunition and other weapons were detailed in the order. It
was also disclosed that a conspiracy was hatched by Uday Pratap Singh to cause
a massacre and/or to create terror after killing some VIPs. In this order it
was mentioned that statement of one Shri Rajendra Yadav was recorded on
30.2.2003 wherein he stated that Raghuraj Pratap Singh alias Raja Bhaiyya and
Akshay Pratap Singh alias Gopalji have brought AK-47 (56) rifle and given it to
Udai Pratap Singh. It was also alleged that after this statement he was
murdered on 3.3.2003 and the father of the deceased filed an FIR No.16 of 2003
under Section 302/34/506/120B IPC in P.S. Kunda, Distt. Pratapgarh for causing
the murder under a conspiracy hatched by Raghuraj Pratap Singh, Akshay Pratap
Singh and Udai Pratap Singh. It was alleged that these persons kept the huge
arms and ammunition including AK-56/AK-47 in their house and whoever speaks
against them meet the same fate. It was also alleged that they propose to take
some action against Chief Minister Mayawati. It was also mentioned in the order
that the said AK-56 rifle was brought by Raghuraj Pratap Singh in presence of
Akshay Pratap Singh and was given to Shri Udai Pratap Singh. On the basis of
this, State Government granted permission to launch prosecution under Section
50 of the POTA Act to prosecute the accused persons namely, Raghuraj Pratap
Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias
Gopalji under Sections 3(2), 3(3), 3(7) and 4 of POTA Act by order dated
5.5.2003. The petitioner has given details of the large number of criminal
cases pending against these persons. Shri Raghuraj Pratap Singh is said to be
involved in 37 cases for various offence under Sections 302, 307,147, 148,
120-B, 320 IPC. The petitioner has also given a chart of the cases pending
against Uday Pratap Singh for various offences under Sections 302, 307, 397
etc. totalling around 50 cases. The petitioner has also given a chart mentioning
the cases against Akshay Pratap Singh for the offence under Sections 302, 307
& the Gangster Act and many other cases under Indian Penal Code totalling
around 32 cases.
After this order was passed by the State Government against the accused
persons political events took a turn. A new regime came in power. This regime
after resuming the power revoked the order by an order dated 29.8.2003. This
order was challenged by the petitioner in the Writ Petition (Crl) 132-134 of
2003 under Article 32 of the Constitution before this Court.
Meanwhile the accused also filed a review petition under Section 60 of POTA
before the Reviewing Committee appointed under the POTA Act. They also filed
petition before the Central Government. The Reviewing Committee headed by Justice
Naseem Uddin and Rajendra Kumar Dubey, ex Commissioner in U.P. reviewed the
matter and held that since there is no case against the applicants under the
POTA and no prima facie case is found under Sections 3 and 4 of the POTA Act,
therefore, there is no basis for proceeding against accused under POTA and the
State of U.P. was directed to release all the three applicants. This is the
subject matter of the Special Leave Petition (Crl) 5069 of 2004. All the
arguments were directed on whether the order passed by the Review Committee is
sustainable in law or not. In fact, before this order of the Review Committee
the State Government has already passed the order for withdrawing the cases
against all the accused under the POTA Act by order dated 29.8.2003 but since
the order was passed by the Review Committee therefore we shall now deal with
this petition first that whether this order of the Review Committee can be
sustained or not.
Before we address ourselves and examine the validity of this order passed by
the Review Committee under Section 60 of the POTA Act, it will be relevant to
review the necessary provisions of the POTA Act. The said Act i.e Prevention of Terrorism Act,
2002 was promulgated by the Parliament with a view to prevent terrorists
activities and the matters connected therewith. The terrorist act has been
defined in Section 2(1)(g) which reads as under:
"2(1)(g) : "Terrorist Act" has the meaning assigned to it in
sub-section (1) of Section 3 and the expression "terrorist" shall be
construed accordingly;" Section 3 reads as under:
"3.(1) Whoever, (a) with intent to threaten the unity, integrity,
security or sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or other lethal
weapons or poisons or noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a hazardous nature or by any
other means whatsoever, in such a manner as to cause, or 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 causes damage or destruction of any property or
equipment used or intended to be used for the defence of India or in connection
with any other purposes of the Government of India, any State Government or any
of their agencies, 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;
(b) is or continues to be a member of an association declared unlawful under
Activities (Prevention) Act, 1967 or voluntarily does an act aiding or
promoting in any manner the objects of such association and in either case is
in possession of any unlicensed firearms, ammunition, explosive or other
instrument or substance capable of causing mass destruction and commits any act
resulting in loss of human life or grievous injury to any person or causes
significant damage to any property, commits a terrorist act.
Explanation:- For the purposes of this sub-section, "a terrorist
act" shall include the act of raising funds intended for the purpose of
(2) Whoever commits a terrorist act, shall:- (a) if such act has resulted in
the death of any person, be punishable with death or imprisonment for life and
shall also be liable to fine:
(b) in any other case, 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) Whoever conspires or attempts to commit, or advocates, abets, advises or
incites or knowingly facilitates the commission of, a terrorist 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.
(4) Whoever voluntarily harbours or conceals, or attempts to harbour or
conceal any person knowing that such person is a terrorist shall be punishable
with imprisonment for a term which shall not be less than three years but which
may extend to imprisonment for life and shall also be liable to fine:
Provided that this sub-section shall not apply to any case in which the
harbour or concealment is by the husband or wife of the offender.
(5) Any person who is a member of a terrorist gang or a terrorist
organization, which is involved in terrorists acts, shall be punishable with
imprisonment for a term which may extend to imprisonment for life or with fine
which may extend to rupees ten lakh or with both.
Explanation: For the purposes of this sub-section, "terrorist
organization" means an organization which is concerned with or involved in
(6) Whoever knowingly holds any property derived or obtained from commission
of any terrorist act or has been acquired through the terrorist funds shall be
punishable with imprisonment for a term which may extend to imprisonment for
life or with fine which may extend to rupees ten lakh or with both.
(7) Whoever threatens any person who is a witness or any other person in
whom such witness may be interested, with violence, or wrongfully restrains or
confines the witness, or any other person in whom the witness may be
interested, or does any other unlawful act with the said intent, shall be
punishable with imprisonment which may extend to three years and fine."
Section 4 reads as under:
"Where any person is in unauthorized possession of any:- (a) arms or
ammunition specified in columns (2) and (3) of Category I or Category III(a) of
Schedule 1 to the Arms Rules, 1962, in a notified area, (b) bombs, dynamite or
hazardous explosive substances or other lethal weapons capable of mass destruction
or biological or chemical substances of warfare in any area, whether notified
or not, he shall be guilty of terrorist act notwithstanding anything contained
in any other law for the time being in force, and be punishable with
imprisonment for a term which may extend to imprisonment for life or with fine
which may extend to rupees ten lakh or with both.
Explanation: in this section, "notified area" means such area as
the State Government may, by notification in the Official Gazette,
specify." Section 60 lays down that the Central Government and the State
Government constituting a Review Committing for purposes of reviewing the
cases. Section 60 reads as under:
"60(1) The Central Government and each State Government shall, whenever
necessary, constitute one or more Review Committees for the purposes of this
(2) Every such Committee shall consist of a Chairperson and such other
members not exceeding three and possessing such qualifications as may be
(3) A Chairperson of the Committee shall be a person who is, or has been, a
Judge of a High Court, who shall be appointed by the Central Government, or as
the case may be, the State Government, so however, that the concurrence of the
Chief Justice of the High Court shall be obtained in the case of a sitting
Provided that in the case of a Union territory, the appointment of a person
who is a Judge of the High Court of a State shall be made as a Chairperson with
the concurrence of the Chief Justice of the concerned High Court.
4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003 (4) Without prejudice to the
other provisions of this Act, any Review Committee constituted under
sub-section (1) shall, on an application by any aggrieved person, review
whether there is a prima facie case for proceeding against the accused under
this Act and issue directions accordingly.
(5) Any direction issued under sub-section (4):
(i) by the Review Committee constituted by the Central Government, shall be
binding on the Central Government, the State Government and the police officer
investigating the offence; and (ii) by the Review Committee constituted by the
State Government, shall be binding on the State Government and the police
officer investigating the offence.
(6) Where the reviews under sub-section (4) relating to the same offence
under this Act, have been made by a Review Committee constituted by the Central
Government and a Review committee constituted by the State Government, under
sub-section (1), any direction issued by the Review Committee constituted by
the Central Government shall prevail.
(7) Where any Review Committee constituted under sub- section (1) is of
opinion that there is no prima face case for proceeding against the accused and
issues directions under sub-section (4), then, the proceedings pending against
the accused shall be deemed to have been withdrawn from the date of such
direction." A perusal of these relevant Sections shows that Section 3
deals with terrorist activities and we are specially concerned with sub-section
(3) which, inter alia, states that whoever conspires or attempts to commit, or
advocates, abets, advises or incites or knowingly facilitates the commission
of, a terrorist 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.
Therefore the ambit of Terrorist Act is very wide and in this any person who
commits or advocate, abets, advises or incites or knowingly facilitates the
commission or involved in preparation to a terrorist act can be roped in under
the wide definition of the Terrorist Act. In fact, the sub-section (1) of
Section 3 clearly says that whoever with intent to threaten the unity,
integrity, security or sovereignty of India or to strike terror in the people
or a section of the people does any act or thing by using bombs, dynamite or
other explosive substances or inflammable substances or firearms or lethal
weapons or poisons or noxious gases or other chemicals or by any other
substances of a hazardous nature or by any other means whatsoever, in such
manner as to cause death 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 causes damage or destruction of any
property or equipment used or intended to be used for the defence of India or
in connection with any other purposes of the Government of India, any State
Government or any of their agencies, or detains any persons 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. That shows that if any person with
the help of any bombs, dynamite or explosive substance or by fire arm or lethal
weapons terrorize people or any section of people then such action will amount
to a terrorist activity and the preparation thereof will also be punishable.
Therefore, the question before us is whether the possession of the weapons
by the accused persons in their houses were lethal weapons and the possession
of the explosive substances were preparation of the terrorist act or not.
Secondly, whether unauthorized possession under Section 4(a) of the Arms Act
and ammunition specified in column 2 and 3 and category (1) or category 3(a) of
Schedule 1 to the Arms
Act, 1959 in notified area would attract the wrath of this provision.
Likewise, whether possession of hazardous explosive or lethal weapons capable
of mass destruction by these accused persons can be prosecuted or not under
Section 4(b) of the Act.
Learned counsel for the appellant has seriously challenged the order passed
by Review Committee. Learned counsel for the petitioner submitted that in fact
the Review Committee did not appreciate the scope of Section 4 of the Act
properly. He submitted that though the cases of these accused persons are
covered under Section 4(a) because of unauthorized possession of arms and
ammunition, but in case it is not covered under Section 4(a), then
alternatively it is squarely covered under Section 4(b) because there is no
need to notify the area under Section 4(b) as required under Section 4(a) of
Shri Shanti Bhushan, learned senior counsel appearing for the State
supported the order of the Review Committee. Shri Rao, learned senior counsel
appearing for the accused respondents also strenuously urged that the order
passed by the Review Committee is correct and the Review Committee has not
committed any irregularity or illegality.
Section 4 has already reproduced above has two parts, one with the
possession of the arms and ammunition specified in column 2 and 3 of the
category 1 or category 3(a) of Schedule 1 of the Arms Rules, 1962, the
unauthorized possession of them in notified area is punishable. Now the
category 1 of Schedule under the Arms Rules, 1962 read with category 3(a) of
the Schedule 1 reads as under:
SCHEDULE I (See rule 3) Category Arms Ammunition 1 2 3 I (a) Prohibited arms
as defined in Section 2 (1) (i) and such other arms as the Central Government,
may, by notification in the Official Gazette, specify to be prohibited arms.
Prohibited ammunition as defined in Section 2 (1) (h) and such other
articles as the Central Government may, by notification in the Official
Gazette, specify to be prohibited ammunition.
(b) Semi-automatic fire-arms, other than those included in categories 1 (c)
and III (a), smooth bore guns having barrel of less than 29" in length.
Ammunition for arms of category I (b).
(c) Blot action or semi-automatic rifles of ".303" or 7.62 mm.
bore or any other bore which can chamber and fire service ammunition of
.303" or 7.62 mm. calibre; muskets of .410" bore of any other bore which
can fire .410" musket ammunition ; pistols, revolvers or carbines of any
bore which can chamber .380" or .455" rimmed cartridges or service 9
mm. or ".445" rimless cartridges.
Ammunition for fire-arms of cate- gory I (c).
(d) Accessories for any fire-arms designed or adapted to diminish the noise
or flash caused by the firing thereof.
II Machinery for manufacture or proof- testing of a fire-arm.
Machinery for manufacturing ammunition.
III Fire-arms other than those in categories I, II and IV, namely :
Ammunition for fire-arms other than those in categories I, II and IV, namely
(a) Revolvers and pistols.
Ammunition for fire-arms of cate- gory III (a).
(b) Breech- loading rifles other than .22 bore rifles mentioned in category
III (c) below.
Ammunition for fire-arms of cate- gory III (b).
(c) 22 bore (low velocity) rifles using rimfire cartridges, breech-loading
smooth-bore guns and air-rifles.
Ammunition for fire-arms of cate- gory III (c).
(d) Air-guns and muzzle-loading guns.
Ammunition for fire-arms of cate- gory III(d).
IV Curios and historical weapons, other than those excluded under Section 45
Curios and historical ammunition.
V Arms other than fire-arms : Sharp- edged and deadly weapons, namely-
swords(including sword-stick), daggers, bayonets, spears (including lances and
javelins; battle-axes, knives (including kirrpans and khukries) and other such
weapons with blades longer than 9" or wider than 2" other than those
designed for domestic, agricultural, scientific or industrial purpose, steel
batton; "Zipo" and other such weapons called "life pre-
serves"; machinery for making arms, other than category II; and any other
arms which the Central Government may notify under Section 4.
VI VI (a) Articles containing explosives or fulminating material; fuses and
friction tubes other than blank fire cartridges.
VI (b) Ingredients as defined in Section 2 (b) (VII).
Note. Parts and accessories of any arms or ammunition and charges for
fire-arms and accessories for charges belong to the same category as the arms
The second category i.e. Section 4(b) which says that the unauthorized
possession of bombs, dynamites, hazardous explosive substances or other lethal
weapons or poisons or noxious gases or other chemicals or by any other
substances of a hazardous nature capable of mass destruction whether notified
or not notified. Therefore, the possession of bombs, dynamite or hazardous
explosive substance or lethal weapons in an unauthorized manner is punishable in
itself and need not be in notified area. Therefore, Section 4(a) and (b), the
possession of the arms mentioned in clause (a), unauthorized possession thereof
in notified area is prohibited whereas in Section 4(b) any bomb, dynamite,
hazardous explosive or lethal weapon capable of a mass destruction is
punishable irrespective of the fact that the area is notified or not notified.
The qualification of the notified area is not required in Section 4(b).
So far as Section 4(a) is concerned, the Review Committee had discussed the
matter in greater details and it was found that the notification under Section
4(a) was not issued prior to the recovery of the arms and ammunition at the
house of Udai Pratap Singh on 23.1.2003. It was submitted that the raid in the
house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay
Pratap Singh alias Gopalji were politically motivated as these persons did not
support the Government of Mayawati, the raid was conducted and POTA cases were
launched against them. When the new Government came headed by Chief Minister
Mulayam Singh Yadav then this order was revoked under POTA as Raghuraj Pratap
Singh supported this Government. We are not concerned with the political
overtone of the matter. We are examining the matter purely from the legal point
of view. The question before us is that on the relevant date whether the whole
area of Uttar Pradesh was notified area or not under Section 4(a) of the Act.
Much argument was addressed in this case and the original records of the
Secretariat and of the Government Press was placed before us for our perusal.
It may also be relevant to mention here that a committee was appointed on the
complaint made by some of the legislators that the raid at the house of Udai
Pratap Singh was made prior to issue of the notification of the notified area.
The committee after considering full enquiry found that notification of
notified area was promulgated on 29.1.2003 and it was communicated to the
district on 31.3.2003 and it reached them thereafter. Since this finding was
seriously debated before us also, therefore we perused the report of the
committee as well, we called the original record to satisfy ourselves when
exactly was notification issued. After going through the note sheet of the Secretarial
file as well as the record of the Government printing press, Lucknow, we are
satisfied that in fact the notification declaring whole of State of Uttar
Pradesh as a notified area was not published on 23.1.2003. But the decision on
the note-sheet was taken on 22.1.2003 and a communication was sent to the
Government Press for publication of it on 23.1.2003 but in fact it was
published as per the record of the Government Press on 29.1.2003 though it was
dated notification dated 23.1.2003. Therefore after close scrutiny of the
records of the Government Secretariat's files as well as original registers of
the Government Press, we are of the opinion that the view taken by the Review
Committee to this extent is correct that the whole area was notified on 29.1.2003
only and not on 23.1.2003 - the date of the notification. The requisition
reached the Government Press for publication 5.30 on 27.1.2003 and it was
published and ready for dispatch on 29.1.2003 and accordingly it was dispatched
to the Home Department on 29.1.2003. Therefore, from these facts it is clear
that the finding accorded by the Review Committee that the notification
notifying the State of U.P. as a notified area under Section 4(a) was published
in the Extra Ordinary Gazette of U.P. on 29.1.2003 and it was dispatched
thereafter to all the districts magistrates. Therefore, it became effective
from the date of its publication. Normally under the State General Clause Act,
an Act comes into force on the date when the assent of the Governor or the President
as the case may be, is first published in the official gazette of the State.
Therefore, publication in the gazette is essential as it affects the rights
of the public. Since this prohibitory notification notifying that the
possession of certain kinds of arms in the notified area is prohibited,
therefore, it would come into effect from the date when it was published in the
Therefore, so far as this part of the finding given by the Review Committee
that notification under Section 4(a) had not come into existence at the time
when the raid at the premises of Udai Pratap Singh was conducted, this finding
of the POTA Review Committee is correct. As a result of this finding so far as
charge under Section 4(a) cannot be sustained.
Now, coming to alternative submission of the learned counsel that Section
4(b) where unauthorized possession of the bombs, dynamites or hazardous
explosive substance or lethal weapons capable of mass destruction is concerned,
in that case the area need not be notified. The unauthorized possession thereof
itself has been found to be punishable under this Section. Learned counsel
submitted that this aspect seems to have been completely missed by the Review
Committee. The Review Committee only concentrated with regard to the question
of Section 4(a), but did not examine the matter with reference to sub-section
(b) of Section 4 of the Act. The two expressions which appear in Section 4(b)
are relevant for our purposes i.e. the possession of "hazardous explosive
substance" or "lethal weapons capable of mass destruction" .
Learned counsel for the petitioner has submitted that the hazardous
explosive substances were recovered from the house of Udai Pratap Singh cannot
be dismissed as an explosive of low intensity and in that connection learned
counsel has invited our attention to the expression hazardous and also invited
our attention to the findings given by the forensic experts. The explosive
substances recovered were sent for Forensic Science Laboratory, U.P. Agra and Forensic
Science Laboratory in their report has observed as under:
"On the analysis explosive substances Nitrate, Sulpher, Potassium and
Charcoal were found in the Exhibit. Organic chemical and DLC method has been
used." Our attention was also invited to the observation of the bomb
disposal/disbursement certificate it was mentioned that 'low intensify'.
Therefore the question is whether this explosive can be said to be as hazardous
substance or not. Firstly, it is unlikely that a law abiding citizen will keep
such quantity of the explosive at his house. It is not an explosive for purpose
of firecrackers. In the light of the facts mentioned above, keeping of such
explosive at their house does not show that it was meant for a bonafide
purpose. The question is whether this substance is hazardous in nature or not.
The very fact of keeping such huge quantity of explosive in house is on the
face of it is a hazardous and it is not kept normally by a person unless who
deals in explosive with authorized licence for that purpose. The possession of
such explosive without any authorized licence is a serious matter. Though, it
is dealt separately because the accused has already been charged under the
Explosive Act. But in this present context can such unauthorized possession by
a person can be said to be a bonafide, is it not a hazardous or injurious to
the public at large? The hazardous has been defined in Collins Cobuild English
Language Dictionary as "something that is hazardous is dangerous,
especially to people's health or safety. The hazardous has also been defined in
the New Oxford Dictionary of English as "Risky; dangerous". Aiyar's
Advanced Law Lexicon at page 826 defines 'Hazardous substance' as :
"A solid waste, or combination of solid wastes which because of its
quantity, concentration or physical, chemical or infectious characteristics may
cause, or significantly contribute to an increase in mortality or an increase
in serious irreversible, or incapacitating reversible, illness or pose a
substantial present or potential hazard to human health or the environment when
improperly treated, stored, transported, or disposed of, or otherwise
managed." The explosive substance has also been defined in Section 2 of
the Explosive Substance Act, 1908 which reads as under:
"2. In this Act the expression "Explosive Substance" shall be
deemed to include any materials for making any explosive substance;
also any apparatus, machine, implement or material used, or intended to be
used, or adapted for causing, or aiding in causing, any explosion in or with
any explosive substances; also any part of any such apparatus, machine or
implement." Therefore considering the hazardous substance under Section
4(b) mean that possession of it by any person be it notified area or otherwise
is also punishable under the Act.
Learned Counsel Shri Shanti Bhushan and Shri Rao tried to play it down that
as per the finding of the bomb demolishing squad it is of low intensity and
cannot fall in category of hazardous substance. We regret, we cannot accept
their submission. This explosive is capable of creating a havoc if it is used
for preparing a bomb, it is capable of mass destruction.
Any person in this background possessing this hazardous explosive substance
cannot be credited to have it for bonafide purpose. Therefore, the fact that
hazardous substance was found at the house of Udai Pratap Singh clearly shows
that the case is covered by Section 4(b) and it cannot be played down simply
because it has been reported by the bomb demolishing squad that it is of low
intensity. This explosive substance is certainly hazardous and is capable of
being used for preparation of bomb or other explosive material for scaring the
people or for causing mass destruction be it in terms of the human beings or
any building or otherwise. This aspect of the matter seems to have not been
adverted by the Review Committee.
Similarly, learned counsel for the appellant has also placed much emphasis
on the expression "other lethal weapons". AK-56 is a weapon of such a
mass destruction that if it is fired then it can at a time kill number of
persons because of his lethal potentiality. The expression "lethal"
has also been defined in Aiyar's Advanced Law Lexicon which reads as under:
"Lethal weapon. A deadly weapon. The term "lethal weapons"
means deadly weapons. "Guns, Swords, pistols, knives, and the like are
lethal weapons as matter of law, when used within striking distance of the
party assaulted. Others are lethal or not according to their capability of
producing death or great bodily harm in t he manner in which they are
used." A lethal weapon is a weapon capable of causing an injury, and if it
is barreled and if a shot, bullet, or other missile can be discharged from it,
it is a firearm. A signal pistol firing a cartridge with explosive ballistic
and containing a phosphorous and magnesium flare is a lethal weapon To give
'legal' is natural meaning, such a weapon should be proved to be one capable of
causing injuries of a more than trivial nature and of a kind which it might reasonably
be expected could lead to death." Stroud's Judicial Dictionary of Words
& Phrases defines 'lethal weapon' as under:
"A lethal weapon is a weapon capable of causing an injury, and if it is
barreled and if a shot, bullet, or other missile can be discharged from it, it
is a firearm. A signal pistol firing a cartridge with explosive ballistite and
containing a phosphorous and magnesium flare is a lethal weapon".
AK-56 is a very dangerous weapon and it is used in the warfare as well as in
terrorist activities very frequently. The possession of which in an
unauthorized manner is itself is an offence under Section 4(b) of the Act.
Learned counsel has also brought to our notice the potentiality of creating
mass destruction by a weapon like AK-56 and invited our attention to the
literature of the AK-47 and AK-56, AK-56 is, in fact, the improved version of
AK-47. AK-47 literature which has been brought to our notice reads as under:
"AK-47.net: AK-47:- The AK-47 was designed by Mikhail Timofeyevich
Kalashnikov as a replacement for the SKS and as a rifle that could be used by
Soviet tank crews. In 1946, while working at the Kovrov weapons plant,
Kalashnikov began work on the AK-47. The AK-47 was accepted as the standard
rifle for the Soviet Army in 1949 and retained that status until it was
succeeded by the AKM. To this day between 30 and 50 million copies and
variations of the AK-47 have been produced world wide, making it the most
widely used rifle in the world.
The AK-47 is chambered in 7.62X39 and features hardwood furniture with a
fixed stock. The AK-47 has a 16 inch barrel with a muzzle nut to protect the
threads. The AK-47 features a stamped receiver with a non ribbed cover plate
The rifle can be fired in two different firing modes; semi and full auto.
The AK-47 has a 800 meter leaf sight that is only adjustable for range. All
windage adjustments must be made by using the front sight. The AK-47 weighs
4,300 g and has a rat e of fire of 600rpm. The rifle will accept most synthetic
and metal magazines, generally 30 rounds in capacity. The rifles effective
killing range is 1,500 meters, and is generally not used for more than 300
meters. The original AK-47 was not outfitted for the use of a bayonet, however
the design was changed and a bayonet was added. The AK-47 also features a
hollow compartment in the buttstock which was used to keep the cleaning
kit." (Source of information is www.ak-47.net/ak47/akru/ak47.html) AK-56
has the same features except some minor improvement on it, reads as under:
"Caliber: 7.62X39 Action: Gas operated, rotating bolt Overall length:
874 mm Weight: 3.80 kg.
Magazine capacity: 30 rounds The type 56 assault rifle was adopted by PLA in
1956, along with Type 56 carbine (which was a licence built Soviet SSKS copy).
The type 56 assault rifle was, in turn, also a licensed copy of the Soviet
AK-47 assault rifle, with minor modifications.
Type 56 is a gas operated, selective fire weapon. The receiver is machined
from steel, the two lugged bolt locks into receiver walls. Type 56 ha AK-47
style controls with reciprocating charging handle and massive safety-fire
selector lever at the right side of the receiver. The furniture was made from
wood, and compact version with underfolding metallic buttstock was also
available. The only visible difference from Soviet AK-47 is a permanently
attached spike beyonet, which folds under the barrel when not in use." The
design features has been quoted from the Janes Information Group reads as
"Type 56 basic version with a fixed wooden stock, Type 56-1 with a
vertically folding metal stock, and Type 56-II with a horizontally folding
metal stock. Except for the differences in the stock and the lack of a tool kit
with the basic variant, the two versions with folding stock are identical to the
The Type 56 is such a reliable weapon that it can function normally after
total immersion in mud and water. The fully chromed barrel ensures effective
operation even at very low temperatures. Unlike the Aks, the Type 56 is fixed
with a foldable bayonet, but the two later version versions have no bayonet.
All Type 56 assault rifles fire in either semiautomatic or automatic mode
and have an effective range of about 300 m.
At full cyclic rate, they can fire about 600 rounds per minute semiautomatic.
Both the Type 56-I and Type 56-II can mount a grenade launcher." The above
potentiality of AK-56 is capable of causing mass destruction. It fires about
600 rounds per minutes, it means 600 bullets if hit all the 600 targets, it can
lead to a mass destruction.
Therefore, the possession of such unauthorized weapon is dangerous and is
capable of mass destruction. It is a lethal weapon capable of mass destruction
and unauthorized possession thereof is itself punishable. This aspect was also
not been adverted by the Review Committee. The Review Committee only directed
that an unauthorized possession of the weapons which have been specified in
column 2 and 3 of category 1 or category 3(a) of Schedule 1 to the Arms Rules
possession of it in the notified area is punishable. But if at the same time
one of the weapons falls in the category of Section 4(b), then it does not mean
that since it falls in category 4(a), it stands excluded from category of
Section 4(b). If the weapon falls in the category of Section 4(b) also under
the head 'lethal weapon', then irrespective of the fact that it falls in the
category (a) will not be excluded from category of Section 4(b). We cannot read
both the provisions of clause (a) and (b) to be of exclusive of each other. Both
the provisions have to be read harmoniously. If the weapon which is specified
in clause (a) is equally covered under clause (b) under the heading of 'lethal
weapon', then it would not mean that it shall stand excluded from Section 4(b).
We have to keep in view the purpose for which this Act was enacted i.e.
prevention of the terrorists activities and we cannot interpret provisions of
Section 4(a) and (b) to be exclusive of each other [Ref : 2005 (6) SCALE 177].
If the weapons enumerated in clause (a) are also covered in clause (b), then it
does not go out of the net of clause (b). This aspect was not addressed by the
Review Committee at all. The Review Committee put a complete gloss over
possession of the explosive substance, that it is not a hazardous or capable of
mass destruction because of its low intensity.
Secondly, the Review Committee has also has entered into the merit of the
matter that accused persons Raghuraj Pratap Singh alias Raja Bhaiya, Udai
Pratap Singh and Akshay Pratap Singh alias Gopalji cannot be connected with the
recovery of these catchy of arms. The role of the Review Committee is very
limited and the Review Committee has to see a prima facie case and cannot enter
into the merit that whether ultimately the conviction will be entailed or not
or the evidence is so weak to connect the other accused persons. The role given
to the Review Committee under sub-section (4) of Section 60 is very limited and
it has only to see whether there is a prima facie case for proceeding against
the accused under the Act or not. The Review Committee has traveled beyond its
scope, the sufficiency of evidence cannot be gone into by the Review Committee.
It is also not the job of the Review Committee whether confession is admissible
or not. Role assigned to Review Committee is very limited and if the prima
facie case connects the accused on the basis of the material with the
prosecution then it is not for the Review Committee to dilate on that as if
they are trying the cases under the Act. As we have already mentioned above
that we need not enter into the political controversy that whether first order
passed was politically motivated or the second order passed was also equally
politically motivated by other party in power, we do not want to go into these
questions. The use of the Act for personal benefit of the political parties has
to be condemned in no uncertain terms. This Act cannot be used for the
political ends; it is meant for the benefit of the nation so that the
terrorists activities do not disturb the sovereignty or integrity of the
nation. So far as this case is concerned, we are of the opinion that there is
prima facie case for prosecuting the accused persons. These accused persons
were charged under Section 3(3) read with Section 4 (a)(b) of the Act. But so
far as Section 4(a) is concerned, for reasons mentioned above, it cannot
proceed now. But it can proceed so far as under Section 3(3) & Section 4(b)
of the Act is concerned along with Arms Act &
Explosives Act. Therefore, we allow this appeal in part. We set aside the order
of the Review Committee and hold that the respondents can be prosecuted under
Section 3(3) and Section 4(b) of the Act and other provisions of the Explosive
and Arms Act.
The accused, Mr. Udai Pratap Singh and Raghuraj Pratap Singh alias Raja Bhaiya
may surrender before the Judge, Designated Court, under POTA Act/Sessions
Judge, Kanpur Nagar within a week and apply for bail. In case they fail to
appear before the Judge, the Judge, Designated Court under POTA Act, Kanpur
Nagar get them arrested. So far as Akshay Pratap Singh is concerned, as he is
already on bail, he need not to surrender. However, any observation made in
this order will not prejudice their trial.
SLP(Crl) 1521 of 2004 This petition is directed against the order passed by
the High Court granting the bail. By this petition, the petitioner has
challenged the order passed by the High Court of Judicature, Allahabad
releasing Akshay Pratap Singh @ Gopalji on bail.
Since the bail has already been granted and he was in detention for a long
time, we do not propose to interfere with the bail order, but observation made
by the learned Judges in the order cannot be sustained as it is contrary to our
finding. Therefore, SLP(Crl) 1521 of 2004 is dismissed.
Writ Petition (Crl) 132-134 of 2003 This petition is filed against the order
passed by the State Government dated 29.8.2003 whereby public prosecutor was
directed to withdraw the POTA cases against the accused persons. An application
was moved by public prosecutor for withdrawal of theses cases before Special
Judge, though no order was passed permitting withdrawal of these cases.
However, in view of our finding in SLP (Crl) 5609 of 2004, we cannot affirm
the order of the State Government for withdrawal of these cases and
consequential application made by the public prosecutor for withdrawal of these
cases. The order passed by the Government dated 29.8.2003 as well as
application moved by the special public prosecutor before the Special Judge,
Kanpur Nagar cannot be sustained and accordingly the order passed by the State
Government and the application moved by the special public prosecutor before
the Special Judge at Kanpur, both are rejected. In this connection our
attention was invited to 1983(1) SCC 438, 1980(3) SCC 435, 1996(2) SCC 610,
2002(3) SCC 510. In these cases it has been laid down that the public
prosecutor has to shoulder a greater responsibility for withdrawal of the cases
under Section 321 Cr.P.C. In Sheonandan Paswan vs. State of Bihar and others 1983
(1) SCC 438, it was held, that the settled law laid down by the Supreme Court
has been that the withdrawal from the prosecution is an executive function of
the Public Prosecutor and the ultimate decision to withdraw from the
prosecution is his. Before an application is made under Section 321, the Public
Prosecutor has to apply his mind to the facts of the case independently without
being subject to any outside influence. The Government may suggest to the
Public Prosecutor that a particular case may not be proceeded with, but nobody
can compel him to do so. However, Section 321 of the Code does not lay any bar
on the Public Prosecutor to receive any instruction from the Government before
he files an application under that section. If the Public Prosecutor received
such instructions, he cannot be said to act extraneous influence. On the
contrary, the Public Prosecutor cannot file an application for withdrawal of a
case on his own without instruction from the Government, since a Public
Prosecutor cannot conduct a case absolutely on his own, or contrary to the
instruction of his client, namely, the Government. Unlike the Judge, the Public
Prosecutor is not an absolutely independent officer. He is appointed by the
government for conducting in court any prosecution or other proceedings on
behalf of the Government concerned. So there is the relationship of counsel and
client between the Public Prosecutor and the Government. If the Government
gives instructions to a Public Prosecutor to withdraw from the prosecution of a
case, the latter after applying his mind to the facts of the case may either
agree with instructions and file a petition stating grounds of withdrawal or
disagree therewith having found a good case for prosecution and refuse to file
the withdrawal petition. In the latter event the Public Prosecutor will have to
return the brief and perhaps to resign, for, it is the Government, not the
Public Prosecutor, who is in the know of larger interest of the State".
The Public Prosecutor cannot act like a post box or act on the dictate of the
State Governments. He has to act objectively as he is also an officer of the
Court. At the same time court is also not bound by that. The courts are also
free to assess whether the prima face case is made or not. The court, if
satisfied, can also reject the prayer. However in the present case we have
examined the matter and found that there is a prima facie case to proceed
against the accused persons under Section 4(b) of the Act and other provisions
of the Explosive or Arms Act,
therefore, the sanction granted by the Government and application moved by
public prosecutor for withdrawal of the cases cannot be sustained. Hence writ
petition Nos.132-134 of 2004 is accordingly allowed and the order of the State
Government dated 29.8.2003 withdrawing the cases against the accused persons is
quashed, likewise direction to the public prosecutor for withdrawing the cases
from the Court.
Transfer Petition No.82-84 of 2004 This petition relates to transfer of the
cases from State of U.P. to any other court under Section 406 Cr.P.C. 1993 in
criminal case No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA
Act titled as State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya
and Akshya Pratap Singh @ Gopalji pending before the Designated Court under
POTA at Kanpur to the Designated Court under POTA at Delhi or before any other
Special Judge at Delhi.
Likewise, crime case Nos. 113/2002 and 209/2002 under Sections 2/3 of U.P.
Gangster and Anti-social Activities (Prevention) Act, 1986 titled as State vs
Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap Singh
@ Gopalji pending in the court of Special Judge (Gangster Act), Allahabad, U.P.
to the court of Special Judge at Delhi or to any other court at Delhi.
The petitioner has stated that there will be no chance of fair trial in the
State of U.P. as most of the witnesses are afraid to speak against the
respondents and even one Shri Rajender Yadav was killed as he deposed against
these persons. It was also mentioned that the State Government is not serious.
The State Government has already withdrawn the POTA cases against the accused
persons and directed the public prosecutor to withdraw these cases. In this
background, there is no likelihood of fair trial in the State of U.P. The
respondents failed to file counter affidavit, but an affidavit has been filed
by one Dinesh Priyadarshi on behalf of respondents No. 2 to 4. But no affidavit
was filed by the respondents though they were made a party to the petition. We
failed to understand why the affidavit has not been filed by respondents
themselves. It is alleged that accused Raghuraj Pratap Singh alias Raja is an
independent MLA who is supporting the present government and is a Minister in
the government. After going through the transfer petition and counter affidavit
on behalf of the respondents, we are of the opinion that there is likelihood of
miscarriage of justice in the background mentioned above. It is alleged that
murder of Shri Rajender Yadav has taken place and his younger brother is
connected with this case. Therefore in the interest of justice both these cases
be transferred to any other court where, in a proper atmosphere, the matter can
be dealt with fairly. In the interest of justice, we direct that criminal case
No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA Act titled as
State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya
Pratap Singh @ Gopalji, and case No.
113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti Social
Activities(Prevention) Act, 1986 titled as State of U.P. vs.
Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya & Akshya Pratap
Singh pending in the Court of Special Judge(Gangster Act), Allahabad, U.P. be
transferred to a Special Judge in M.P. Let the Hon. Chief Justice nominate any
Special Judge to try these cases. The transfer petitions are accordingly