TMI Blog1994 (8) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appropriate Division Bench for decision on merits in accordance with the answers we give to the questions of law. Accordingly, only those facts which are material for appreciating the questions of law which are being decided by us require mention in this order. The questions of law indicated in the said order of reference, to be decided by us, are three, namely - (1) The proper construction of Section 5 of the TADA Act indicating the ingredients of the offence punishable thereunder and the ambit of the defence available to a person accused of that offence ; (2) The proper construction of clause (bb) of sub- section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein; and (3) The proper construction and ambit of sub-section (8) of Section 20 of the TADA Act indicating the scope for bail thereunder. The only material facts for answering the above question are these: The petitioner is one of the several accused persons in case No. 1 of 1993 being trial in the Designated Court for Greater Bombay in connection with the bomb blasts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with am-munition was in these circumstances for self defence on account of the serious threats to the members of his family, unrelated to any terrorist activity and, therefore, mere unauthorised possession of the weapons and ammunition by him in these circumstances cannot constitute an offence under Section 5 of the TADA Act. and has to be dealt with only under the Arms Act, 1959. The petitioner claims to be released on bail on this basis and places reliance on certain other facts pertaining to his conduct to support his assertion that his action in unconnected with any terrorist or disruptive activity. It is unnecessary here to refer to any other facts which may be material only for the purpose of considering the case of petitioner on the merits for grant of bail. The Designated Court has refused bail to the petitioner. These special leave petitions are against the order of the Designated Court, in substance, for grant of bail to the petitioner. On these facts, the aforesaid questions of law arise for determination by us. These questions arise in a large number of cases of persons accused of offences punishable under the TADA Act and detained for that reason. It is the genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, proposed that persons who are in possession of certain arms and ammunition specified in the Arms Rules, 1962 of other explosive substances unauthorisedly in an area to be notified by the State Government, 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 with fine. It is further proposed to provide that confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device shall be admissible in the trial of such person for an offence under the proposed legislation or any rules made thereunder. It is also proposed to provide that the Designated Court shall presume, unless the contrary is proved, that the accused had committed an offence where arms or explosives or any other substances specified in Section 3 were recovered from his possession, or where by the evidence of an expert the finger prints of the accused were found at the site of offence or where a confession has been made by a co-accused that the accused had committed the offence or where the accused had made a confes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning assigned to the expression disruptive activity and prescribes the punishment fcr the same. Then comes Section 5 which says that a person in mere unauthorised possession of certain arms and ammunition etc. specified therein, in a notified area is 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 . This offence is more grave and the punishment more severe that the offence of mere unauthorised possession of the same arm and ammunition etc. provided in the Arms Act. Section 6 provides from enhanced penalties in certain cases. Section 8 provides for forfeiture of property of persons convicted of any offence punishable under this Act in . addition to the punishment awarded for the offence. This Section also provides for forfeiture of property of certain other persons accused of any offence under this Act. Part III containing .Section 9 to 19 relates to constitution of Designated Courts . There place of sitting, jurisdiction and power with respect to other offences, apart from the procedure to be followed by the Designated Courts and certain other matters relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be less than five years but which may extend to imprisonment for Ufe 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 Ufe and shall also be liable to fine. (4) Whoever 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 Ufe and shall also be liable to fine. (5) Any person who is a member of a terrorists gang or a terrorists organisation, which is involved in terrorist act, shall be punishable with imprisonment for a terms which shall not be less than five years but which may extend to imprisonment for Ufe and shall also Uable to fine. (6) Whoever 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 terms which shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused may, under the Code, be charged at the same trial if the offence is connected with such other offence (2) If, 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 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, as the case may be, such other law, for the punishment thereof. xxxx xxxx xxxx 15. Certain confession made to police officers to be taken into consideration. - (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (9) The limitations on granting of bail specified in sub-section (8) are in addition the limitations under the Code or any other law for the time being in force on granting of bail. 21. Presumption as to offences under Section 3. - (1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved - (a) that the arms or explosive or any other substances specified in Section 3 were recovered from the possession of the accused there is reason to believe that such arms or explosive or other substances of a similar nature, were used in the commission of such offence : or (b) that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; the designated Court shall presume unless the contrary is proved, that the accused had committed such offence. (2) In a prosecution for an offence under sub-section (3) of Section 8, if it is proved that the accused rendered any financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length. Ammunition for arms of category I (b). I(c) Bolt 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 or any other bore which can fire .410 musket ammunition; pistols, revolvers, or carbines of any bore which can chamber an fire .380 or .455 rimmed cartridges or service 9 mm. or.45 rimless cartridges. Ammunition for fire-arms of category l(c). I(d) Accessories for any fire-arms designed or adapted to diminish the noise of flash caused by the firing thereof. XXX XXX XXX 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 :- III(a) Revolvers and pistols Ammunition for fire-arms of category III(a). xxxx 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 or ammunition. In the Arms Act, 1959, Section 24A inserted by Act No. 25 of 1983 w.e.f. 22.6.1983 contains provision relating to the Prohibition as to possession of notified arms in disturbed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time being in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. Admittedly, this punishment prescribing a minimum sentence of five years imprisonment for unauthorised possession of any of the specified arms etc. with the maximum extending to life imprisonment, is more severe as compared to the punishment for the corresponding offence under the Arms Act. In addition to it, the other provisions of the TADA Act which include admissibility of some evidence against the accused which is in admissible under the general law coupled with a longer period available for completing the investigation enabling longer custody of the accused and the overall more stringent provisions of the TADA Act loads the prosecution more heavily against the accused under the TADA Act. The TADA Act was enacted to make special provisions for the prevention of. and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto in the background of escalation of the terrorist and disruptive activities in the country. There is also material availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be taken in all the States throughout the country. Persons aware of instances of abuse, including the National Human Rights Commission, can assist by reporting such instances with particulars to that machinery for prompt and effective cure. However, that is no reason, in law, to doubt its constitutionality or to alter the proper construction when there is a felt need by the Parliament for enacting such a law to scope with, and prevent terrorist and disruptive activities threatening the unity and integrity of the country. The settled rule of construction of penal provisions is, that if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction and if there are two reasonable constructions, we must give the more lenient one ; and if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. See London North Eastern Railway v. Berriman, [1946] 1 All ER 255 (HL). p. 270 ; Tolaram Relumal and Anr. v. The State of Bombay, [1955] 1 SCR 158 and State of Madhya Pradesh v. M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erspective we must proceed to spell out the ingredients of the offence created by section 5 of the TADA Act and the extent of the right of the accused to defend himself of that charge. We have already indicated the ingredients of the offence punishable under Section 5 of the TADA Act. The meaning of the first ingredient of possession of any such arms etc. is not disputed. Even though the word possession is not preceded by any adjective like knowingly , yet it is common ground that in the context the word possession must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of possession in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. (See Warner v. Metropolitan Police Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, (1950) AC 458. The next ingred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government s power to notify an area under Section 2(l)(f) must have relation to curbing terrorist and disruptive activities in the notified area is well founded for otherwise the State Government s power would be unfettered and unguided which would render Section 5 vulnerable. Shri Kapil Sibal, learned counsel for the petitioner submitted that the unauthorised conscious possession of any such specified arms and ammunition etc. in a notified area may not necessarily be related to, or associated with, a terrorist or disruptive activity and it may be possible for the accused to show that the object even of the unauthorised possession was different, for example, self-defence. He submits that the accused must have the opportunity in law of raising such a defence and proving its. The construction of Section 5 suggested by Shri Soli J. Sorabjee as amicus curiae, as well as by the National Human Rights Commission in its written submissions is the same. Shri Sibal further submitted that unless such an opportunity to the accused to prove his innocence of the graver offence punishable under Section 5 of the TADA Act is read into it, even though he may be punished for mere unauthori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession with this awareness, within a notified area. This statutory presumption is the essence of the third ingredient of the offence created by Section 5 of the TADA Act. The question now is about the nature of this statutory presumption. The position which emerges is this. For constituting the offence made punishable under Section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. Once the prosecution has proved unauthorised conscious possession of any of the specified arms ammunition etc. in a notified area by the accused, the conviction would follow on the strength of the presumption unless the accused proved the nonexistence of a fact essential to constitute any of the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution. There is no controversy about the facts necessary to constitute the first two ingredients. For proving the non-existence of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a situation, the accused is punished in the same manner as any other person found to be in unauthorised possession of any such arms and ammunition etc. outside a notified area. The presumption in law is of the greater and natural danger arising from its unauthorised possession within a notified area more prone to terrorist or disruptive activities. The Statement of Objects and Reasons for enacting the TADA Act clearly states as under : ..................It is also proposed to provide that the Designated Court shall presume, unless the contrary is proved, that the accused had committed an offence where arms or explosives or any other substances specified in Section 3 were recovered from his possession, or where by the evidence of an expert the finger prints of the accused were found at the site of offence or where a confession has been made by the co-accused that the accused had committed the offence or where the accused had made a confession of the offence to any other person except a police officer............... (emphasis supplied ) The above extract gives a clear indication of the purpose for enacting Section 21 in the TADA Act creating the statutory presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the statutory presumption so read into Section 5 is in consonance with the scheme of the statute and section 5 read in the context makes the statutory presumption implicit in it. The clear words in Section 21 that the Designated Court shall presume, unless the contrary is proved is an unambiguous expression that the presumption thereunder is a rebuttable presumption. The language in Section 21 of the TADA Act has to be contrasted with the Section 112 of the Indian Evidence Act, 1972 which shows that the presumption under section 112 of the Indian Evidence Act is irrebuttable whereas the presumption under Section 21 of the TADA Act is rebuttable. It may here be noticed that Section 5 is attracted only in case of unauthorised possession in a notified area, of arms and ammunition specified in columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms Rules, 1962 which are prohibited arms, semi-automatic fire ares, smooth bore guns, bolt action or semi-automatic rifles of certain categories, revolvers and pistols, and their ammunition, or bombs, dynamite or other explosive substances, which are all inherently more dangerous weapons. None of these weapon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t intended to strike at the carrying of firearms simpliciter, if engaged in knowingly and without lawful authority. (at pages 469-70) (emphasis supplied) The mental element of knowledge as requirement of the ingredient carry or possess was read into this provision but the requirement of any special intent as a matter of implication as an element of the offence was negatived. That was the construction made of a provision similar to Section 5 of the TADA Act where death penalty was provided for the offence in similar legislation. On principle, there is no requirement of reading anything more than the rebuttable presumption into Section 5 of the TADA Act indicated by us. A decision of the Supreme Court of Canada in Louis Beaver v. Her Majesty The Queen, [1957] S.C.R. 531 is also useful in this context. The offence there related to possession of the forbidden narcotic substance. It was held that the element of knowledge formed part of the ingredient of possession when mere possession of the substance amounted to an offence. However, it was clearly stated that it would be within the power of Parliament to enact that mere physical possession without any guilty knowledge const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. xxxx xxxx xxxx .........However, their Lordships were in agreement that if the linguistic construction of the State did not clearly indicate on whom the burden should lie the court should look to other considerations to determine the intention of Parliament, such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance, for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words arms ammunition in Section 5 should be read conjunctively and so read, the conclusion is that a person in possession of only both, a fire-arm and the ammunition therefore, is punishable under Section 5 and not one who has either the firm-arm or the ammuni-tion alone. Section 5 applies where any person is in possession of any arms and ammunition specified in column 2 and 3 of Category I or Category III (a) of Schedule I to the Arms Rules, 1962, or ..........unauthorisedly in a notified area . After specifying the forbidden arms and ammunition, Section 5 proceeds to include in that category other substances by using the expression or bombs, dynamite or the explosive substances . It is clear that unauthorised possession in a notified area is forbidden of any arms and ammunition which is specified or bombs or dynamite or other explosive substance . The other forbidden substances being r.ead disjunctively, the only questions being read disjunctively, the only question is : Whether in this context the words arms and ammunition in Section 5 should be read conjunctively? We do not think so. Schedule I to the Arms Rules specifies the categories of both arms and ammuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption arising against him of the commission of an offence by mere unauthorised possession of any such arms etc. within a notified area is manifest from the Statement of Objects and Reasons. This is in consonance with the basic principle of criminal jurisprudence and the basic right of an accused generally recognised. We must attribute to the Parliament the legislative intent of not excluding the right of an accused to prove that he is not guilty of the graver offence under section 5 of the TADA Act and, therefore, he is entitled to be dealt with under the general law which provides a lesser punishment. The provision of a minimum sentence of five years imprisonment for unauthorised possession of any of the specified arms etc. with the maximum punishment of life imprisonment under Section 5 of the TADA Act is by itself sufficient to infer such a legislative intent, more so, when such intent is also more reasonable. The practical considerations in prosecution for an offence punishable under Section 5 of the TADA Act affecting the burden of proof indicate that the intended use by the accused of such a weapon etc. of which he is in unauthorised possession within a notified area is know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion) say that an accused person seeking bail under section 20(4) has to make an application to the court for grant of bail on grounds of the default of the prosecution and the court shall release the accused on bail after notice to the public prosecutor uninfluenced by the gravity of the offence or the merits of the prosecution case since Section 20(8) does not control the grant of bail under Section 20(4) of TADA and both the provisions operate in separate and independent field. It is, however, permissible for the public prosecutor to resist the grant of bail by seeking an extension under clause (bb) by filing a report for the purpose before the court. However, no extension shall be granted by the court without notice to an accused to have his say regarding the prayer for grant of extension under clause (bb).In this view of the matter, it is immaterial whether the application for bail on ground of default under Section 20(4) is filed first or the report as envisaged by clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. If the period prescribed by clause (b) of Section 20(4) has expired and the court does not gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Section 20(4) (bb) as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only upto the filing of the challan and does not survive for enforcement on the challan being filed in the court against him. Shri Sibal submitted that the decision of the Division Bench in Hitendra Vishnu Thakur cannot be read to confer on the accused an indefeasible right to be released on bail under this provision once the challan has been filed if the accused continues in custody. He stated unequivocally that on filing of the challan, such a right which accrued prior to filing of the challan has no significance and the question of grant of bail to an accused in custody on filing of the challan has to be considered and decided only with reference to the provisions relating to grant of bail applicable after filing of the challan, since Section 167 Cr. P.C. has relevance only to the period of investigation. Learned Additional Solicitor general, in reply, agreed entirety with the above submission of Shri Sibal and submitted that principle enunciated by then Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y arms and ammunition specified in columns 2 and 3 of Category I or Category in (a) of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances. No further nexus with terrorist or disruptive activity is required to be proved by the prosecution in view of the statutory presumption indicated earlier. The accused in his defence is entitled to prove the non existence of a fact constituting any of these ingredients. As apart of his defence, he can prove by adducing evidence, the non-existence of facts constituting the third ingredient as indicated earlier to rebut the statutory presumption. The accused is entitled to prove by adducing evidence, that the purpose of his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity. If the accused succeeds in proving the absence of the said third ingredient, then his mere unauthorised possession of any such arms and ammunition etc. is punishable only under the general law by virtue of Section 12 of the TADA Act and not under Section 5 of the TADA Act. (2)(a) Section 20(4)(bb) of the TADA Act only requires production of the accused before the court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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