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TMI Blog2003 (12) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the meaning thereof, our attention is invited to decisions in Romesh Thaper V. State of Madras, 1950 SCR 594, Dr. Ram Manohar Lohia V. State of Bihar, 1966 (1) SCR 709, and Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC 746. The Petitioners thus submitted that terrorist activity is confined only to State(s) and therefore State(s) only have the competence to enact a legislation. The learned Attorney General refuting this contention submitted that acts of terrorism, which are aimed at weakening the sovereignty and integrity of the country cannot be equated with mere breaches of law and order and disturbances of public order or public safety. He argued that the concept of "sovereignty and integrity of India" is distinct and separate from the concepts of "public order" or "security of State" which fall under List II enabling States to enact legislation relating to public order or safety affecting or relating to a particular State. Therefore, the legislative competence of a State to enact laws for its security cannot denude Parliament of its competence under List I to enact laws to safeguard national security and sovereignty of India by preventing and punishing acts of terrorism. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct target of violence but also by exposing them to a sense of insecurity. It is in this context that this Court held in Mohd. Iqbal M. Shaikh V. State of Maharashtra, (1998) 4 SCC 494, that: "...it is not possible to give a precise definition of terrorism or to lay down what constitutes terrorism. But... it may be possible to describe it as a use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. ... if the object of the activity is to disturb harmony of the society or to terrorize people and the society, with a view to disturb even tempo, tranquility of the society, and a sense of fear and insecurity is created in the minds of a section of society at large, then it will, undoubtedly be held to be terrorist act..." Our country has been the victim of an undeclared war by the epicenters of terrorism with the aid of well-knit and resourceful terrorist organizations engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and to whip communal passions. These are designed to position the people against the government by creating a feeling of insecurity. Terrorist acts are meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-state, inter-national or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavor. Rather it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organized groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements were trying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... groups or individuals the means to carry out acts of terrorism; and c). Sustain broad-based international cooperation in the struggle against terrorism. Therefore, the anti-terrorism laws should be capable of dissuading individuals or groups from resorting to terrorism, denying the opportunities for the commission of acts of terrorism by creating inhospitable environments for terrorism and also leading the struggle against terrorism. Anti - terrorism law is not only a penal statue but also focuses on pre-emptive rather than defensive State action. At the same time in the light of global terrorist threats, collective global action is necessary. Lord Woolf CJ in A, X and Y, and another V. Secretary of the State for the Home Department (Neutral Citation Number: [2002] EWCA Civ. 1502) has pointed out that "...Where international terrorists are operating globally and committing acts designed to terrorize the population in one country, that can have implications which threaten the life of another. This is why a collective approach to terrorism is important." Parliament has passed POTA by taking all these aspects into account. The terrorism is not confined to the borders of the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional soundness of POTA needs to be judged by keeping these aspects in mind. Now, we will revert to the issue of legislative competence. Relying on Rehman Shagoo Petitioners argued that Parliament lacks competence since the 'terrorism' in pith and substance covered under the Entry 1 (Public Order) of List II. Conclusion of this contention depends upon the true meaning of the Entry - 'Public Order'. A constitution Bench of this Court in Rehman Shagoo examined the constitutionality of the Enemy Agents (Ordinance), No. VIII of S. 2005 promulgated by His Highness the Maharaja under Section 5 of Jammu Kashmir Constitution Act, S. 1996. For a proper understanding of the ratio in Rehman Shagoo, it is necessary to understand the background in which the impugned Ordinance was promulgated. (See : Prem Nath Kaul V. The State of Jammu & Kashmir, 1959 Supp. (2) SCR 270, to understand the background that prevailed in the then Kashmir). Because any interpretation divorced from the context and purpose will lead to bad conclusions. It is a wellestablished canon of interpretation that the meaning of a word should be understood and applied in accordance with the context of time, social and conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to 'public order' under Entry 1 in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the State. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative field assigned to the States under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List. .. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbances of 'public order' disturbing the 'even tempo of the life of community of any specified locality' - in the words of Hidayathulla, C J in Arun Ghosh v. State of West Bengal (1970) 1 SCC 98 but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this country or by antinationals throwing a challenge to the very existence and sovereignty of the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requirement of 'mens rea' element. They added that this provision has been incorporated in POTA in spite of the contrary observation of this Court in Kartar Singh, wherein it was held that the word 'abets' need to have the requisites of intention or knowledge. Consequently, they want us to strike down Section 3(3) as the same is prone to misuse. In Kartar Singh, this Court was concerned with the expression "abet" as defined under Section 2(1)(a) of TADA and hence considered the effect of different provisions of the TADA to ascertain true meaning thereof. As the meaning of the word "abet" as defined therein is vague and in precise, actual knowledge or reason to believe on the part of the person to be brought within the definition should be brought into that provision instead of reading down that provision. That kind of exercise is not necessary in POTA. Under POTA the word "abets" is not defined at all. Section 2(1)(i) of POTA says "words and expressions used but not defined in this Act and defined in the Code shall have the meaning respectively assigned to them in the Code." According to Section 2(1)(a) of POTA "Code" means 'Code of Criminal Procedure, 1973 (2 of 1974).' Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 16 and 17: Contentions have been raised in regard to provisions relating to seizure, attachment and forfeiture of proceeds of terrorism. Provisions relating to seizure, attachment and forfeiture have to be read together. Section 2(c) of POTA sets out the meaning of 'proceeds of terrorism' and reads as follows: " 'proceeds of terrorism' shall mean all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, and shall include cash irrespective of person in whose name such proceeds are standing or in whose possession they are found." Explanation to Section 3 gives the meaning of 'a terrorist act' in the context of sub-section (1) of Section 3 so as to include the act of raising funds intended for the purpose of terrorism. Section 6 debars a person from holding or possessing any proceeds of terrorism and also makes it clear that it is liable to be forfeited. Section 7 authorises an investigating officer, not below the rank of Superintendent of Police with the prior approval in writing of the Director General of Police of the State, to seize such property or attach the same and ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ultimately convicted. Here only on conviction, forfeiture of property can take place. In this connection, it is relevant to take note of the provisions of Sections 15, 16 and 17. Section 15 renders certain transfers to be null and void in cases where after the issue of an order under Section 7 or notice under Section 9 any property is transferred by any mode whatsoever, such transfer shall for the purpose of the Act be ignored and if such property is subsequently forfeited, the transfer of such property shall be deemed to be null and void. Section 16 enables a special court trying a person for an offence under the Act to pass an order that all or any of the properties, movable or immovable or both belonging to him, during the period of such trial, be attached, if not already attached under the Act. On conviction of such person, the special court may, by an order, declare that any property, movable or immovable or both belonging to the accused and specified in the order, shall stand forfeited to the Central Government or the State Government, as the case may be. Section 17 provides that in cases where any share of a company shall stand forfeited, then, the company shall, on recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must belong to the accused convicted of any offence of TADA Act or rule thereunder; (3) the property should be specified in the order; (4) even though attachment can be made under Section 8(2) during the trial of the case, the forfeiture can be ordered only in case of conviction and not otherwise." However, ultimately, they do not press these contentions to be considered in these proceedings by stating that the various facets as set above can really be seen in actual fact situation and for the present, they call upon the Court to clarify that the expression "modified" or "annulled" used in Section 10(2) shall apply even in a case of forfeiture of the proceeds of terrorism against a person who is not prosecuted under POTA. It is not necessary to interpret these expressions and as and when an appropriate case arises, appropriate interpretation can be given on the said expressions. There is a scheme for forfeiture of the proceeds of terrorism followed by a show cause notice to be issued and thereafter on a decision being made, an appeal lies thereto and the order of forfeiture, by itself, will not prevent the court from inflicting any other punishment for which the person may be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1997 (6) SCC 514, that: "...It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence..." Section 14 confers power to the investigating officer to ask for furnishing information that will be useful for or relevant to the purpose of the Act. Further more such information could be asked only after obtaining a written approval from an officer not below the rank of a Superintendent of Police. Such power to the investigating officers is quiet necessary in the detection of terrorist activities or terrorist. It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over professional communication beyond what is permitted under Section 126 of the Evidence Act. There is also no law that permits a newspaper or journalist to withhold relevant information from Courts though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against Press Council. (See also : Pandit M.S.M Sharma V. Shri Sri Krishan Sinha, 1959 Supp (1) SCR 806, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates that before a statutory declaration is made in respect of an organization which is listed in the schedule a prior opportunity of hearing or representation should be given to the affected organization or its members: that the rule of audi alteram partem is not absolute and is subject to modification; that in light of post-decisional hearing remedy provided under Section 19 and since the aggrieved persons could approach the Review Committee there is nothing illegal in the Section; that furthermore the constitutional remedy under Articles 226 and 227 is also available; that therefore, having regard to the nature of the legislation and the magnitude and prevalence of the evil of terrorism cannot be said to impose unreasonable restrictions on the Fundamental Rights under Article 19(1)(c) of the Constitution. The right of citizens to form association or union that is guaranteed by Article 19(1)(c) of the Constitution is subject to the restriction provided under Article 19(4) of the Constitution. Under Article 19(4) of the Constitution the State can impose reasonable restrictions, inter alia, in the interest of sovereignty and integrity of the country. POTA is enacted to protect so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee. Considering the nature of legislation and magnitude or presence of terrorism, it cannot be said that Section 18 of POTA imposes unreasonable restrictions on fundamental right guaranteed under Article 19(1)(c) of the Constitution. We uphold the validity of Sections 18 and 19. Sections 20, 21 & 22: Petitioners assailed Sections 20, 21 and 22 mainly on the ground that no requirement of mens rea for offences is provided in these Sections and the same is liable to misuse therefore it has to be declared unconstitutional. The Learned Attorney General argued that Section 21 and its various sub-sections are penal provisions and should be strictly construed both in their interpretation and application; that on a true interpretation of the Act having regard to the well settled principles of interpretation Section 21 would not cover any expression or activity which does not have the element or consequence of furthering or encouraging terrorist activity or facilitating its commission; that support per se or mere expression of sympathy or arrangement of a meeting which is not intended or designed and which does not have the effect to further the activities of any terrorist organization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73) 2 SCC 372, for the general principles concerning the exclusion or inclusion of mens rea element vis-'-vis a given statute). The prominent method of understanding the legislative intention, in a matter of this nature, is to see whether the substantive provisions of the Act requires mens rea element as a constituent ingredient for an offence. Offence under Section 3(1) of POTA will be constituted only if it is done with an -'intent'. If Parliament stipulates that the 'terrorist act' itself has to be committed with the criminal intention, can it be said that a person who 'profess' (as under Section 20) or 'invites support' or 'arranges, manages, or assist in arranging or managing a meeting' or 'addresses a meeting' (as under Section 21) has committed the offence if he does not have an intention or design to further the activities of any terrorist organization or the commission of terrorist acts? We are clear that it is not. Therefore, it is obvious that the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent of furthering or encouraging terrorist activity or facilitating its commission. In other words, these Sections are limited only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of 11 judges in Kathi Kalu Oghad's case (supra) have looked into a similar situation and it is ruled therein (at pages 30 -32) that: "...The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not 'to be a witness'...when an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or any specimen of his handwriting, he is not giving any testimony to the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus the giving of finger impression or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'... ..They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable..." (Emphasis Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair trial can be evolved; that the Section requires the Court to be satisfied that the life of witness is in danger and the reasons for keeping the identity of the witness secret are required to be recorded in writing; that, therefore, it is reasonable to hold that the Section is necessary for the operation of the Act. Section 30 of POTA is similar to Section 16 of TADA, the constitutional validity of which was upheld by this Court in Kartar Singh's case (supra) (see pages 683 - 689 of SCC). In order to decide the constitutional validity of Section 30 we don't think it is necessary to go into the larger debate, which learned Counsel for both sides have argued, that whether right to cross-examine is central to fair trial or not. Because right to crossexamination per se is not taken away by Section 30. This Section only confers discretion to the concerned Court to keep the identity of witness secret if the life of such witness is in danger. We cannot shy away from the unpleasant reality that often witnesses do not come forward to depose before Court even in serious cases. This precarious situation creates challenges to our criminal justice administration in general and terrorism r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may possibly be frustrated. Under compelling circumstances this can be dispensed with by evolving such other mechanism, which complies with natural justice and thus ensures a fair trial. The observations made in this regard by this Court in the decisions to which we have adverted to earlier have been noticed by this Court in Kartar Singh's case (supra) and has upheld the validity of a similar provision subject, of course, to certain conditions which form part of Section 30 now. The present position is that Section 30(2) requires the court to be satisfied that the life of a witness is in danger to invoke a provision of this nature. Furthermore, reasons for keeping the identity and address of a witness secret are required to be recorded in writing and such reasons should be weighty. In order to safeguard the right of an accused to a fair trial and basic requirements of the due process a mechanism can be evolved whereby the special court is obligated to satisfy itself about the truthfulness and reliability of the statement or disposition of the witness whose identity is sought to be protected. Our attention has been drawn to legal position in USA, Canada, New Zealand, Australia and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 32: This Section made it lawful of certain confessions made to police officers to be taken into consideration. Concerning the validity and procedural difficulties that could arise during the process of recording confessions the Petitioners submitted that there is no need to empower the police to record confession since the accused has to be produced before the Magistrate within forty-eight hours, in that case magistrate himself could record the confession; that there is no justification for extended time limit of forty eight hours for producing the person before Magistrate; that it is not clear in the Section whether the confession recorded by the police officer will have the validity after Magistrate has recorded the fact of torture and has sent the accused for medical examination; that it is not clear as to whether both the confession before the police officer as well as confession statement before the Magistrate shall be used in evidence; that the Magistrates cannot be used for mechanically putting seal of approval on the confessional statements by the police; that, therefore, the Section has to be nullified. Validity of this Section was defended by the learned Attorney Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow 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. (See : Kartar Singh's case (supra) page 678, para 248 - 249 of SCC). Ultimately, it is for the concerned Court to decide the admissibility of the confession statement. (See : Kartar Singh's case (supra) page 683, para 264 of SCC). 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. Section 49: Section 49 mainly deals with procedure for obtaining bail for an accused 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of ordinary offences. Usually the overt and covert acts of terrorism are executed in a chillingly efficient manner as a result of high conspiracy, which is invariably linked with antinational elements both inside and outside the country. So an expanded period of detention is required to complete the investigation. Such a comparatively long period for solving the case is quite justifiable. Therefore, the investigating agencies may need the custody of accused for a longer period. Consequently, Section 49 (6) and (7) are not unreasonable. 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 under Section 49(7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail procedure under the Code after that period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under Section 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. 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. W.P.(Crl.) 129/2002 : A case was registered against the petitioner under Section 13(1)(a) of the Unlawful Activities Prevention Act, 1967, Section 21(2) and (3) of the Prevention of Terrorism Act, 2002 (POTA) read with Sections 109 and 120B of the Indian Penal Code on 4.7.2002. When the petitioner returned to Chennai from Chicago on 11.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts arising in this case. We are sure that the Special Court will decide the matter in the light of decision pronounced by us in Writ Petition (C) No. 389 of 2002 above. The writ petition is disposed of with aforesaid observations. W.P.(Crl.) 28/2003 : The petitioner in this writ petition seeks for declaration that Section 21(2) and the proviso to Section 49(6) and 49(7) of POTA are illegal and ultra vires the Constitution of India. Inasmuch as we have upheld the constitutional validity of Section 21(2) and proviso to Section 49(6) and 49(7) of POTA in the judgment pronounced by us in Writ Petition (C) No. 389 of 2002 above, this writ petition is dismissed. W.P.(Crl.) 48/2003 : In this writ petition, apart from challenging the constitutional validity of Sections 1(4), 3 to 9, 14, 18 to 24, 26, 27, 29 to 33, 36 to 53 which has been upheld by us in the judgment pronounced by us in Writ Petition (C) No. 389 of 2002 above, the constitutional validity of Entry 21 of the Schedule to POTA is also challenged. On that aspect no specific arguments have been addressed by any of the parties. This matter will have to be heard separately and hence, this writ petition is de-linked from othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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