2003 (12) TMI 639 - SC - Indian Laws

Constitutional validity of various provisions of the Prevention of Terrorism Act 2002 (POTA) - Doctrine of pith and substance - Misuse of TADA and Necessity of POTA - definition of abets -protection of witness - confessions made to police officers - seeking bail for an accused under POTA - Validity of Section 49 - HELD THAT - In our view the impugned legislation does not fall under Entry 1 of List II namely Public Order. No other Entry in List II has been invoked. The impugned Act therefore falls within the legislative competence of Parliament in view of Article 248 read with Entry 97 of List I and it is not necessary to consider whether it falls under any of the entries in List I or List III. We are however of the opinion that the impugned Act could fall within the ambit of Entry 1 of List I namely Defence of India . Thus the challenge advanced by Petitioners of want of legislative competence of Parliament to enact POTA is not tenable. The definition of abets as appears in the IPC will apply in a case under POTA. In order to bring a person abetting the commission of an offence under the provisions of IPC it is necessary to prove that such person has been connected with those steps of the transactions that are criminal. Mens rea element is sine qua non for offences under IPC. Learned Attorney General does not dispute this position. Therefore the argument advanced pertaining to the validity of Section 3(3) citing the reason of the absence of mens rea element stands rejected. Funding and financing play a vital role in fostering and promoting terrorism and it is only with such funds terrorists are able to recruit persons for their activities and make payments to them and their family to obtain arms and ammunition for furthering terrorist activities and to sustain the campaign of terrorism. Therefore seizure forfeiture and attachment of properties are essential in order to contain terrorism and is not unrelated to the same. Indeed it is relevant to notice a resolution passed by the United Nations Security Council Resolution No.1373 dated 28.9.2001 which emphasized the need to curb terrorist activities by freezing and forfeiture of funds and financial assets employed to further terrorist activities. It will also be interesting to notice the United Nations International Convention for the Suppression of the Financing of Terrorism but at the same time it is not necessary to go into those details in the present context. The scheme of the provisions indicate that the principles of natural justice are duly observed and they do not confer any arbitrary power and forfeiture can only be made by an order of the court against which an appeal is also provided to the High Court and the rights of bona fide transferee are not affected. Therefore for the present it is not necessary to pronounce the constitutional validity of these provisions and we proceed on the basis that they are valid. Appropriate methods to ensure the safety of individual witness - Keeping secret the identity of witness though in the larger interest of public is a deviation from the usual mode of trial. In extraordinary circumstances we are bound to take this path which is less travelled. Here the Special Courts will have to exercise utmost care and caution to ensure fair trial. The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness secret. It shall be appropriate for the concerned Courts to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30. Confessions made to police officers - In our considered opinion the provision that requires producing such a person before the Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover the Magistrate s responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer. It will deter the police officers from obtaining a confession from an accused by subjecting him to torture. It is also worthwhile to note that an officer who is below the rank of a Superintendent of Police cannot record the confession statement. It is a settled position that if a confession was forcibly extracted it is a nullity in law. Non-inclusion of this obvious and settled principle does not make the Section invalid. Ultimately it is for the concerned Court to decide the admissibility of the confession statement. Judicial wisdom will surely prevail over irregularity if any in the process of recording confessional statement. Therefore we are satisfied that the safeguards provided by the Act and under the law is adequate in the given circumstances and we don t think it is necessary to look more into this matter. Consequently we uphold the validity of Section 32. Validity of Section 49 - bail under POTA - Petitioners main grievance about this Section is that under Section 49(7) a Court could grant bail only if it is satisfied that there are grounds for believing that an accused is not guilty of committing such offence since such a satisfaction could be attained only after recording of evidence there is every chance that the accused will be granted bail only after minimum one year of detention; that the proviso to Section 49(7) which is not there under TADA makes it clear that for one year from the date of detention no bail could be granted; that this Section has not incorporated the principles laid down by this Court in Sanjay Dutt s case 1994 (9) TMI 351 - SUPREME COURT wherein it is held that if a challan is not filed after expiry of 180 days or extended period the indefeasible right of an accused to be released on bail is ensured provided that the same is exercised before filing of challan; that the prosecution is curtailing even this right under POTA. Therefore the petitioners want us to make the Section less stringent according to the settled principles of law. Learned Attorney General submitted that the provisions regarding bail are not onerous nor do they impose any excessive burden or restriction on the right of the accused; that similar provisions are found in Section 37 of the NDPS Act 1985 and in Section 10 of the UP Dacoity Affected Areas Act; that on a true construction of Section 49(6) and (7) it is not correct to conclude that the accused cannot apply for bail at all for a period of one year; that the right of the accused to apply for bail during the period of one year is not completely taken away; that the stringent provision of bail under Section 49(7) would apply only for the first one year of detention and after its expiry the normal bail provisions under Cr.P.C. would apply; that there is no dispute that the principle laid down by this Court in D.K Basu V. State of West Bengal 1996 (12) TMI 350 - SUPREME COURT will apply; that in the light of effective safeguards provided in the Act and effective remedies against adverse orders there is no frailty in Section 49. In spite of this bail could be obtained for an accused booked under POTA if the court is satisfied that there are grounds for believing that he is not guilty of committing such offence after hearing the Public Prosecutor. It is the general law that before granting the bail the conduct of accused seeking bail has to be taken into account and evaluated in the background of nature of crime said to have committed by him. That evaluation shall be based on the possibility of his likelihood of either tampering with the evidence or committing the offence again or creating threat to the society. Since the satisfaction of the Court u/s 49(7) has to be arrived based on the particular facts and after considering the abovementioned aspects we don not think the unreasonableness attributed to Section 49(7) is fair. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49. There is no challenge to any other provisions of the Act. In the result these petitions stand dismissed subject however to the clarifications that we have set out above on the interpretation of the provisions of the enactment while dealing with the constitutionality thereof.

Summary

Issues Involved:
1. Legislative Competence of Parliament to Enact POTA.
2. Misuse of TADA and Necessity of POTA.
3. Definition and Interpretation of "Abets" in POTA.
4. Validity of Sections 4, 6, 7, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 27, 30, 32, and 49 of POTA.

Summary:

1. Legislative Competence of Parliament to Enact POTA:
The petitioners argued that the provisions of POTA fall under Entry 1 (Public Order) of List II, thus Parliament lacks legislative competence. They cited decisions in *Rehman Shagoo*, *Romesh Thaper*, *Dr. Ram Manohar Lohia*, and *Madhu Limaye*. The Attorney General countered that terrorism affects national security and sovereignty, distinct from public order, and Parliament has competence under List I. The Court held that terrorism is a national threat, not confined to a single state, and thus Parliament is competent to enact POTA.

2. Misuse of TADA and Necessity of POTA:
The petitioners raised concerns about the misuse of TADA and high acquittal rates. The Court stated it cannot examine the necessity of POTA, as it is a policy matter. The possibility of abuse is not a ground to declare a statute unconstitutional.

3. Definition and Interpretation of "Abets" in POTA:
Petitioners contended that Section 3(3) of POTA lacks the requirement of *mens rea*. The Court clarified that "abets" is not defined in POTA but refers to the IPC definition, which includes *mens rea*. Thus, the argument against Section 3(3) was rejected.

4. Validity of Sections 4, 6, 7, 8, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22, 27, 30, 32, and 49 of POTA:
- Section 4: The Court held that "possession" implies conscious possession, thus no infirmity.
- Sections 6, 7, 8, 10, 11, 15, 16, 17: The Court found these provisions essential for combating terrorism and observed principles of natural justice.
- Sections 18 & 19: The Court upheld these sections, stating that declaring an organization as a terrorist organization is a reasonable restriction under Article 19(4).
- Sections 20, 21 & 22: The Court clarified that these sections require *mens rea* and upheld their validity.
- Section 27: The Court held that this section does not violate Article 20(3) as obtaining samples is not testimonial compulsion.
- Section 30: The Court upheld the section, emphasizing the need to protect witness identity in exceptional circumstances.
- Section 32: The Court upheld the section, noting additional safeguards for recording confessions.
- Section 49: The Court interpreted the proviso to Section 49(7) to mean that after one year, normal bail provisions apply, and upheld the section.

Additional Cases:
- W.P.(Crl.) 129/2002: The Court upheld the constitutional validity of Section 21 and deferred the factual examination to the Special Court.
- W.P.(Crl.) 28/2003: The petition challenging Sections 21(2) and proviso to Sections 49(6) and 49(7) was dismissed.
- W.P.(Crl.) 48/2003: The challenge to the constitutional validity of various sections and Entry 21 of the Schedule to POTA was de-linked for separate hearing.

In conclusion, the Supreme Court upheld the constitutional validity of POTA, addressing each issue raised by the petitioners and providing clarifications where necessary.