@ Panna Koch Vs. State of Assam  Insc
266 (22 February 2008)
Naolekar & P. Sathasivam
APPEAL NO.706 OF 2007 WITH CRIMINAL APPEAL NO.836 OF 2007 Mahendra Saikia @ Dilip
Saikia ....Appellant (s) Versus State of Assam .... Respondent(s) P. Sathasivam, J
These appeals, under Section 19 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as "the TADA Act")
are directed against the common judgment dated 19.04.2007 of the Designated
Judge at Assam, Gauhati in TADA Sessions Case No. 1 of 1996 whereby the
Designated Judge convicted Pulin Das @ Panna Koch appellant in Criminal Appeal
No.706 of 2007 and Mahendra Saikia @ Dilip Saikia appellant in Criminal Appeal
No. 836 of 2007 for offences under Section 3(2)(ii) of the TADA Act and
sentenced them to undergo rigorous imprisonment for five years and to pay a
fine of Rs.500/-, in default further R.I. for another six months.
Brief facts, in a nutshell, are as follows:
night of 08.12.1993, on secret information, the police party under the
leadership of S.P. Sonitpur and S.D.P.O., Bishwanath Chariali raided the house
of Uday Chetry. It was alleged that the extremist fired upon the police party
and the police party also fired in self-defence and as such there was exchange
of fire from both sides and thereafter Pulin Das @ Panna Koch appellant in
Crl.A.No.706 of 2007 and Mahendra Saikia @ Dilip Saikia appellant in Crl.A.
No.836 of 2007 were apprehended and arms and ammunitions were recovered from
their possession. On the basis of the above incident, an F.I.R. No.187/1993 was
recorded and the police registered a case under Sections 3/4/5 of the TADA Act. On 17.12.1995, Charge Sheet No.101 of 1995
in FIR No.187/1993 was filed against both the accused. On 30.08.2006,
statements of the appellants-accused were recorded under Section 313 of the
Criminal Procedure Code. The prosecution examined nine witnesses in support of
its case and exhibited the seizure list (Ex.1), the FIR (Ex.2), the sketch
map(Ex.3), the expert report (Ex.4), prosecution sanction(Ex.5) and the charge
sheet (Ex.6) and also exhibited the seized arms and ammunitions (Mat. Ex.1-4).
The Designated Court, Assam, Gauhati convicted the appellants herein under
Section 3(2)(ii) of TADA and sentenced each of them to undergo rigorous
imprisonment for five years and to pay a fine of Rs.500/-, in default further
rigorous imprisonment for another six months. However, the Designated Court acquitted the accused persons under
Section 5 of the TADA Act as there was no evidence available for possession of
unauthorized arms and ammunition. Being aggrieved by the said judgment, the
appellants preferred separate appeals before this Court.
Heard Mr. Nitin Sangra, learned counsel, for the appellant in Criminal Appeal
No.706 of 2007 and Mr. Vijay Hansaria, learned senior counsel, for the
appellant in Criminal Appeal No.836 of 2007 and Mr. Avijit Roy, learned
counsel, appearing for the State of Assam.
Since both the appellants/accused were convicted only under Section 3(2)(ii) of
the TADA Act, it is useful to refer to the said provision.
Punishment for terrorist acts .
Whoever with intent to overawe the Government as by law established or to
strike terror in the 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 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 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.
Whoever commits a terrorist act, shall,
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;
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."
5) In Kartar
Singh vs. State of Punjab, (1994) 3 SCC 569, the legality and
the efficaciousness of Sections 3 and 4 were assailed on the following grounds,
These two sections cover the acts which constitute offences under ordinary laws
like the Indian Penal Code, Arms Act and Explosive Substances Act;
There is no guiding principle laid down when the executive can proceed under
the ordinary laws or under this impugned Act of 1987; and (3) This Act and
Sections 3 and 4 thereof should be struck down on the principle laid down in
State of W.B. vs. Anwar Ali Sarkar, AIR 1952 SC 75 and followed in many other
cases including A.R. Antulay vs. Union
of India and Ors., (1988) 2 SCC 764.
upholding the validity of Sections 3 and 4, the Constitution Bench laid down
that the Act tends to be very harsh and drastic containing the stringent
provisions and provides minimum punishments and to some other offences enhanced
penalties also. The provisions prescribing special procedures aiming at speedy
disposal of cases, departing from the procedures prescribed under the ordinary
procedural law are evidently for the reasons that the prevalent ordinary
procedural law was found to be inadequate and not sufficiently effective to
deal with the offenders indulging in terrorist and disruptive activities,
secondly that the incensed offences are arising out of the activities of the
terrorists and disruptionists which disrupt or are intended to disrupt even the
sovereignty and territorial integrity of India or which may bring about or
support any claim for the cession of any part of India or the secession of any
part of India from the Union, and which create terror and a sense of insecurity
in the minds of the people. Further the Legislature being aware of the
aggravated nature of the offences have brought this drastic change in the
procedure under this law so that the object of the legislation may not be
defeated and nullified.
6) In Hitendra
Vishnu Thakur and Others vs. State of Maharashtra and Others, (1994) 4 SCC 602,
while considering Section 3(1) and (2), two-Judge Bench of this Court basing reliance
on Kartar Singh case (supra), Usmanbhai Dawoodbhai Memon & Ors. vs. State
of Gujarat, (1988) 2 SCC 271 and Niranjan
Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya & Ors.,
(1990) 4 SCC 76 held thus:
Thus, unless the Act complained of falls strictly within the letter and
spirit of Section 3(1) of TADA and is committed with the intention as envisaged
by that section by means of the weapons etc. as are enumerated therein with the
motive as postulated thereby, an accused cannot be tried or convicted for an
offence under Section 3(1) of TADA. When the extent and reach of the crime
committed with the intention as envisaged by Section 3(1), transcends the local
barriers and the effect of the criminal act can be felt in other States or
areas or has the potential of that result being felt there, the provisions of
Section 3(1) would certainly be attracted. Likewise, if it is only as a
consequence of the criminal act that fear, terror or/and panic is caused but
the intention of committing the particular crime cannot be said to be the one
strictly envisaged by Section 3(1), it would be impermissible to try or convict
and punish an accused under TADA. The commission of the crime with the
intention to achieve the result as envisaged by the section and not merely
where the consequence of the crime committed by the accused create that result,
would attract the provisions of Section 3(1) of TADA. Thus, if for example a
person goes on a shooting spree and kills a number of persons, it is bound to
create terror and panic in the locality but if it was not committed with the
requisite intention as contemplated by the section, the offence would not
attract Section 3(1) of TADA. On the other hand, if a crime was committed with
the intention to cause terror or panic or to alienate a section of the people
or to disturb the harmony etc. it would be punishable under TADA, even if no
one is killed and there has been only some person who has been injured or some
damage etc. has been caused to the property, the provisions of Section 3(1) of
TADA would be squarely attracted. Where the crime is committed with a view to
overawe the Government as by law established or is intended to alienate any
section of the people or adversely affect the harmony amongst different
sections of the people and is committed in the manner specified in Section 3(1)
of TADA, no difficulty would arise to hold that such an offence falls within
the ambit and scope of the said provision.
late, we have come across some cases where the Designated Courts have
charge-sheeted and/or convicted an accused person under TADA even though there
is not even an iota of evidence from which it could be inferred, even prima
facie , let alone conclusively, that the crime was committed with the intention
as contemplated by the provisions of TADA, merely on the statement of the
investigating agency to the effect that the consequence of the criminal act
resulted in causing panic or terror in the society or in a section thereof.
Such orders result in the misuse of TADA. Parliament, through Section 20-A of
TADA has clearly manifested its intention to treat the offences under TADA
seriously inasmuch as under Section 20-A(1), notwithstanding anything contained
in the Code of Criminal Procedure, no information about the commission of an
offence under TADA shall even be recorded without the prior approval of the
District Superintendent of Police and under Section 20-A(2), no court shall
take cognisance of any offence under TADA without the previous sanction of the
authorities prescribed therein. Section 20-A was thus introduced in the Act
with a view to prevent the abuse of the provisions of TADA.
would, therefore, at this stage like to administer a word of caution to the
Designated Courts regarding invoking the provisions of TADA merely because the
investigating officer at some stage of the investigation chooses to add an
offence under same (sic some) provisions of TADA against an accused person,
more often than not while opposing grant of bail, anticipatory or otherwise.
The Designated Courts should always consider carefully the material available
on the record and apply their mind to see whether the provisions of TADA are
even prima facie attracted.
Thus, the true ambit and scope of Section 3(1) is that no conviction under
Section 3(1) of TADA can be recorded unless the evidence led by the prosecution
establishes that the offence was committed with the intention as envisaged by
Section 3(1) by means of the weapons etc. as enumerated in the section and was
committed with the motive as postulated by the said section. Even at the cost
of repetition, we may say that where it is only the consequence of the criminal
act of an accused that terror, fear or panic is caused, but the crime was not
committed with the intention as envisaged by Section 3(1) to achieve the
objective as envisaged by the section, an accused should not be convicted for
an offence under Section 3(1) of TADA. To bring home a charge under Section
3(1) of the Act, the terror or panic etc. must be actually intended with a view
to achieve the result as envisaged by the said section and not be merely an
incidental fall out or a consequence of the criminal activity.
crime, being a revolt against the society, involves some violent activity which
results in some degree of panic or creates some fear or terror in the people or
a section thereof, but unless the panic, fear or terror was intended and was
sought to achieve either of the objectives as envisaged in Section 3(1), the
offence would not fall stricto sensu under TADA. Therefore, as was observed in Kartar
Singh case by the Constitution Bench : (SCC p. 759, para 451) "Section 3
operates when a person not only intends to overawe the Government or create
terror in people etc. but he uses the arms and ammunition which results in
death or is likely to cause death and damage to property etc. In other words, a
person becomes a terrorist or is guilty of terrorist activity when intention,
action and consequence all the three ingredients are found to exist."
State through Superintendent of Police, CBI/SIT vs. Nalini and Others, (1999) 5
SCC 253, three-Judge Bench of this Court held thus:
"Under Section 3 of TADA in order there is a terrorist act three essential
conditions must be present and these are contained in sub-section (1) of
Section 3 (1) criminal activity must be committed with the requisite intention
or motive, (2) weapons must have been used, and (3) consequence must have
the light of the language used and interpreted by this Court in various
decisions, it is clear from Section 3(1) that whoever with intent
overawe the Government as by law established; or
strike terror in the people or any section of the people; or
alienate any section of the people; or
adversely affect the harmony amongst different sections of the people, does any
act or things by using
or dynamite, or
explosive substances, or
lethal weapons, or
or noxious gases or other chemicals, or
other substances (whether biological or otherwise) of a hazardous nature in
such a manner as to cause or as is likely to cause
to any person or persons,
of or damage to or destruction of property, or
of any supplies or services essential to the life of the community, or
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' punishable under the said Section.
view of the same, an activity which is sought to be punished under Section 3(1)
of TADA has to be such which cannot be classified as a mere law and order
problem or disturbance of public order or disturbance of even tempo of the life
of the community of any specified locality but is of the nature which cannot be
tackled as an ordinary criminal activity under the ordinary penal law by the
normal law enforcement agencies because the intended extent and reach of the
criminal activity of the 'terrorist' is such which travels beyond the gravity
of the mere disturbance of public order even of a 'virulent nature' and may at
times transcend the frontiers of the locality and may include such
anti-national activities which throw a challenge to the very integrity and
sovereignty of the country in its democratic polity. The Designated Court must not act mechanically and
record conviction without examining whether or not from the evidence led by the
prosecution an offence under Section 3 (1) is made out.
Though the appellants/accused were charged under Section 5 for possession of
arms and ammunitions along with Section 3(1) and (2), since the Designated
Court itself acquitted them in respect of offence under Section 5, in the
absence of appeal by the State there is no need to consider the same.
Now, let us consider whether prosecution has established the charge under
Section 3(2) (ii) of the TADA Act. Before going into the oral evidence examined
on the side of the prosecution in support of their claim, since learned counsel
appearing for the respondent/State insisted us to see the contents of
charge-sheet (Annexure 3), we verified the same.
written ejahar received from the complainant has been treated as FIR. The
following materials available under clause 7 of the charge-sheet read thus:-
"The fact of the case is that on 8.12.93 on secret information, it is
known that some ULFA outfit members have taken shelter in the house of Uday Chetry
situated at Christian Pura under Dhekiajuli P.S.
the said house was gheroed by the outfit members. Thereafter the outfit members
Das @ Panna Koch,
Saikia @ Dilip Saikia were arrested. From their possession, one revolver, one
303 rifle, one stand gun and some cartridges were recovered.
mentioned while they were nabbed, they opened fire upon police for which there
were exchange of fire from both sides. Accordingly, a case under Sections 3, 4
and 5 of TADA Act was registered and started investigation."
charge-sheet proceeds that the accused are ULFA outfit members. In order to
prove the charge against the accused persons, the prosecution has examined as
many as nine witnesses.
P.W.1 - Abdul Rahman, a Constable, who proceeded along with the other members
of the police party to Christianbasti has not stated anything about the accused
particularly their activities. He merely stated that "police arrested two
inmates of that house and seized some arms and ammunitions". In the
cross-examination, he admitted that he was away from the house and did not see
who made the firing and he did not know whether any gun was fired or not. He
also admitted that he did not know whether any arms and ammunitions or any
other articles were seized from the accused persons.
Sharma, one of the police personnel, who visited the house of P.W. 5 was
examined as P.W.2. He mainly referred about possession of arms and ammunitions
in the residence where the accused were apprehended. In the cross- examination,
he stated that 6/7 empty cartridges were seized from the place of occurrence.
He further deposed that there were five or six persons inside the house where
the accused persons were arrested and there were also women in that house.
According to him, he did not know who fired from inside the house. He also did
not whisper a word about the character and activities of the accused.
Another police personnel by name Phuleswar Konwer was examined as P.W.3. Though
he furnished more details about the occurrence particularly gun shot from the
house, over- powering by the police personnel, entering the house, apprehending
the two accused and seizing arms and ammunitions and also identified both the
accused in the court when he was examined, he also did not say anything about
either banned organization (ULFA) or the accused and their activities. On the
other hand, he fairly admitted that he did not know whether the arrested accused
persons belonged to any banned organization. In other words, even the prime
witness of prosecution did not whisper anything about the banned organization
(ULFA) their connection and unlawful activities.
Next witness one Phuleswar Das who is also one of the police personnel was
examined as P.W.4. Though he mentioned that he heard some firing at the place
of occurrence, he did not say anything about the accused and their activities.
Uday Chetry, resident of the house in question was examined as P.W.5. According
to him, on 08.12.1993, after attending a kirtan party, he returned home at 10
p.m. His wife told him that two guests have come and they are sleeping after
taking food. He also returned to bed after food. The following statement made
by him before Court is relevant and the same is reproduced hereunder:- "At
about 12.30 A.M. midnight, I heard the sound of firing in the house. Out of
fear we did not go out.
police called us. Police showed us some arms and disclosed that they recovered
it from two ULFA men."
the above statement, he did not say anything about the accused persons and
P.W.6, Om Chetry, who is none else than the brother of P.W.5. deposed that he
lives with his brother Uday Chetry, and is residing in the same house. Like
P.W.5, he also deposed that at mid-night, he heard the sound of firing, woke up
and both of them were called by the police. He also deposed that from police we
came to know that both the guests are members of ULFA.
rightly pointed out by learned counsel appearing for the appellants/accused
though the prosecution has claimed that P.W.5 and P.W.6 were important
witnesses, their evidence clearly show that they did not know about the
activities of the accused persons particularly whether they are members of
ULFA. Both of them have stated that from the police only they came to know that
both are members of ULFA. It is clear that they heard the above information
about the accused persons from the police. In such situation and particularly
in the light of the charge against the accused, it is but proper on the part of
the prosecution to put-forth reliable and acceptable evidence/material to show
that the accused were members of ULFA which is a banned organization. Apart from
the above witnesses, the prosecution has examined two more witnesses in support
of their case.
One Durga Mohan Brahma, Inspector of Police, has been examined as P.W.7. His
entire evidence is available from pages 39-41 of the paper-book. We scanned the
same. Nowhere he mentioned anything about the activities of the accused and
ULFA. His evidence is also not helpful to the prosecution.
The next witness examined on the side of the prosecution is P.W.8, Bhadra Kanta
Buragobain. He has nothing to do with the charge framed since according to him,
he examined arms and ammunitions on 15.12.1995 though seized on 08.12.1993. We
have already referred to the fact that the Designated Court itself acquitted the accused persons from the charge under
Section 5 of the Act.
The last witness examined on the side of the prosecution was P.W.9, namely, Jogesh
Barman. He was, at the relevant time, working as D.S.P. H.Q. at Tezpur.
According to him, he received an order from S.P. Sonitpur for completion of the
investigation of the case. He further deposed that after going through the
materials from the CD, he submitted charge-sheet against both the accused
persons. Though P.W.9 is a D.S.P. Senior Officer of the District, he also did
not whisper about ULFA, the connection of the accused persons with the said
organization and their activities etc.
a case of this nature, particularly, in the light of the stringent provisions
as provided in sub-section (1) of Section 3 as well as Section 20A which
mandates that no information about the commission of an offence under this Act
shall be recorded by the police without prior approval of the D.S.P, and no
court shall take cognizance of any offence under this Act without previous
sanction of the Inspector General of Police or Commissioner of Police, we are
of the view that P.W.9 D.S.P. ought to have explained all the details about the
ULFA organization its activities and the alleged connection of the accused
persons. It is the bounden duty of the prosecution to examine highest police
officer of the district, namely, Superintendent of Police or equivalent officer
about the above- mentioned relevant materials. We have already highlighted the
relevant ingredients and conditions to be fulfilled before initiating
prosecution under Section 3(1) of the TADA Act.
most of the prosecution witnesses adverted to seizure of arms and ammunitions
and the accused were charged for an offence under Section 5 which speaks about
possession of unauthorized arms etc. in specified areas, the Designated Court
acquitted them on the said charge and admittedly the State has not preferred
view of the above discussion and in light of strict compliance to be followed
to attract Section 3(1), the conviction under Section 3(1) and punishment under
sub- section 2(ii) of Section 3 of the TADA Act cannot be sustained.
satisfied that the prosecution has miserably failed to establish the charge levelled
against both the accused. The Designated Court
has committed an error in accepting the prosecution case based on a mere
reference of ULFA by P.Ws. 5 and 6. In fact, both of them have stated that it
was the police who disclosed that they recovered some arms from two ULFA men
and it is not their own assertion.
P.Ws.5 and 6 nor the remaining seven police personnel including Dy.
Superintendent of Police, who were examined, whisper a word about the banned
organization - ULFA and the alleged unlawful activities of the accused persons
in terms of Section 3(1) of the Act. These material aspects have not been
adverted to by the Designated Court.
For the reasons stated above, both the appeals succeed and are hereby allowed.
The conviction of the appellants under Section 3(1)(2)(ii) of the TADA Act with
sentence and fine thereunder is set aside. The appellants are directed to be
released forthwith, if not required in any other offence.
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