TMI Blog1997 (11) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... kur; A2-Jaynendra Thakur @ Bhai Thakur; A3-Shyam Kishore Garikapti; A4-Chanderkant Patil and A5-Paresh Mohan Desai) has been delineated by the prosecution by referring to three different incidents which took place during the nascent stages. The first was an incident which happened on 30.4.1991 when a ruthless attack was launched on the villagers at Vadrai (a coastal village in Maharashtra) in retaliation for picking up the scattered silver bars strewn in the sea from a capsized vessel employed by some smugglers. (The said incident is referred to in the evidence as Vadrai incident). The second one happened in the City of Mumbai when a number of multistory buildings were blasted with bombs on 12.3.1993 in which a lot of people died and a lot others were seriously injured. (That incident is referred to in evidence as Bombay blast). The third is some terrorists armed with highly sophisticated weapons, had gate crashed into the JJ hospital Bombay where some former members of a terrorists gang were hospitalised and they were all shot dead by the intruders. (That incident is referred to as the JJ shoot-out case). 3. For some time in early July 1993 the Delhi Police were getting secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused CBI officials came to know that there were links between them and other hardcore terrorists. 7. On 24.10.1993, the CBI officials caught A-6 Ahmad Mansoor @ Suhel Ahmed from near Jama Masjid area in Delhi, being an active associate of the arrested persons besides being a member of the Davood Ibrahim group. It was further revealed that A-6 Ahmad Mansoor and other terrorists were sheltered by A-9 (Kalpnath Rai) in the guest house of National Power Transmission Corporation (NPTC) at Safdarjang Development Area in New Delhi. Such accommodation was arranged by A-9 through his Personal Secretary S.P. Rai (A-8). It was also revealed that A-10 (Brij Bhushan Saran Singh) a Member of Parliament had sheltered some terrorists in his residence at New Delhi. It was also known that A6-Ahmad Mansoor had received substantial financial help from A7 (Sabu V. Chako) who gave shelter to A1 (Subhash Singh Thakore) as well as one B.N. Rai (another hardcore terrorist) in his Hotel Hans Plaza . During investigation PW-45 (Superintendent of Police) recorded confessional statements made by A-1 to A-6 in the purported exercise of Section 15 of TADA. Sanction to prosecute A1 was accorded by the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a fine of rupees ten thousand. A6 was convicted under Section 3(5) of the TADA and was sentenced to undergo imprisonment for life and to pay a fine of rupees five lacs. 12. A7, A8, A9 and A12 were convicted under Section 3(4) of TADA. (A7 was sentenced to imprisonment for five years and a fine of rupees ten thousand. A8 was sentenced to imprisonment for five years and to pay a fine of rupees five hundred. A9 was sentenced to undergo imprisonment for ten years and to pay a fine of rupees ten lacs. A12 was sentenced to pay a fine of rupees fifty lacs and a period was fixed for its payment and provision was made for recovery of the fine in default of payment committed by the company.) A10 (Brij Bhusan Saran Singh) was however acquitted. 13. We heard arguments of different senior counsel for different appellants at length. Shri V.R. Reddy, Addl. Solicitor General argued for CBI in defence of the conviction and sentence passed on the respective appellants. 14. We deem it necessary to deal first with the contention pertaining to the requirement in Section 20A(1) of the TADA. If that contention deserves acceptance the entire charge and the subsequent proceedings would stand vit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said fact is mentioned in the FIR also. So the factual position is this. PW 10/A is the FIR. It could only have been made with the approval obtained from the DCP, though it might not have been a written approval. 19. Then the question is whether prior approval envisaged in Section 20A(1) of the TADA should necessarily be in writing. There is nothing in the sub-section to indicate that prior approval of the District Superintendent of Police should be in writing. What is necessary is the fact of approval which is sine qua non. for recording the information about the commission of the offence under TADA. The provision is intended to operate as a check against police officials of lower ranks commencing investigation into offences under TADA because of the serious consequences which such action befalls the accused. However, the check can effectively be exercised if a superior police official of the rank of DSP first considers the need and feasibility of it. His approval can be obtained even orally if such an exigency arises in a particular situation. So oral approval by itself is not illegal and would not vitiate the further proceedings. 20. That apart, one of the offences inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case consider that accused Subhash Singh Thakur, Jaynendra Thakur, Shyam Kishore Garikapatti, Chandrakant Patil, Paresh Mohanlal Desai and Mohd. Ahmed Mansoor should be prosecuted in the court of law for the said offences. NOW, THEREFORE, I...do hereby accord sanction Under Section 20A(2) of TADA(P) ACT, 1987 for the prosecution of S/Sh. Subhash Singh Thakur, Jaynendra Thakur, Shyam Kishore Garikapatti, Chandrakant Patil, Paresh Mohanlal Desai and Mohd. Ahmed Mansoor for the said offences in respect of abovesaid acts and taking of cognizance of the said offences by the court of competent jurisdiction. 23. Learned Counsel for the appellants made a multi- pronged onslaught on the aforesaid sanction. First is that the sanction is not sufficient to proceed against the accused under Section 3(4) and under Section 5 of the TADA. Second is, the sanctioning authority did not intend prosecution proceedings to be launched against the appellants for any offence other than those specifically mentioned in the sanction order. Third is, the sanction even in respect of offences mentioned therein is without application of mind of the sanctioning authority. 24. We may observe, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under the old Code, as settled by the decisions of various courts, was that any defect in sanction was not curable and hence the prosecution- itself would have been void, [vide Dr. Hori Ram Singh v. Emperor MR 1939 FC 43, Gokulchand Dwarkadas Morarka v. The King , Shreekantiah Ramayya Munipalli v. State of Bombay MR 1955 SC 287. 27. When Parliament enacted the present Code they advisedly incorporated the words any error or irregularity in any sanction for the prosecution in Section 465 of the present Code as they wanted to prevent failure of prosecution on the mere ground of any error or irregularity in the sanction for prosecutions. An error or irregularity in a sanction may, nevertheless, vitiate the prosecution only if such error or irregularity has occasioned failure of justice. 28. Learned Counsel adopted a twin contention on this aspect. First is that the defence has raised this objection at the earliest instance itself as they were concerned with the impact of such irregular sanction affecting the prosecution. Second is that non-mention of other offences in the sanction is not merely an irregularity but it will go to the root of it. 29. Sub-section (2) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a judicial scrutiny is satisfied on the materials placed before it that another offence has been made out and such satisfaction is of a higher calibre than the satisfaction of a sanctioning authority. The sanction envisaged in Section 20A is, of course, a curb imposed on the prosecution agency to approach the Designated Court with a case. But once such approach is validly made with the proper sanction then the court gets a wider jurisdiction to deal with the offenders in respect of all offences made out in the trial. 32. A-1, A-2, A-3 and A-6 were convicted under Section 3(5) of TADA in addition to other offences. For convenience, we reproduce the sub-section here: 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 term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 33. The sustainability of the conviction thereunder is assailed before us from different angles. First is that the provision itself is invalid due to stark vagueness. Second is, to claw down to the tentacles of the provision it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or damage to any property, or disruption of any supplies; (2) doing of such act should have been by using bombs, dynamites etc.; (3) or alternatively he should have detained any person and threatened to kill or injure him in order to compel the Government or any other person to do or abstain from doing anything. 38. He who does a terrorist act falling within the aforesaid meaning is liable to be punished under Sub-section (2) of Section 3. But there are some other acts closely linked with the above but not included in Sub-section (1), such as entering into a conspiracy to do the above acts or to abet, advise, incite or facilitate the commission of such acts. Such acts are also made punishable under Sub-section (3) which reads thus: (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 39. Can it be said that a person who conspires, abets, advises or incites or facilitates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (M/s. East West Travel Links). Before we take up the individual case against each one of them we may refer to the contentions severally made by the learned Counsel on a point of law as against the conviction under Section 3(4). Sub-section (4) of Section 3 of TADA reads thus: Whoever harbors or conceals, or attempts to harbor 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 life and shall also be liable to fine. 47. The word harbors has not been defined in TADA. An endeavour was made, during arguments, to hook it with the meaning attached to the same word in the Indian Penal Code on the strength of Section 2(1)(i) of the TADA which reads thus:- Words and expressions used but not defined in this Act and defined in the code shall have the meanings respectively assigned to them in the code. 48. The Word Code in TADA must be understood as referring to the CrPC, 1973, as per Section 2(1)(b) of TADA. But the word harbor has not been defined in the Code. Section 2 of the Code which is a fasciculus of definition clauses contains an opening to the definition clauses i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the word harbor as receiving clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person shall be deprived of the same. In the other dictionaries the meaning of the said word is delineated almost in the same manner as above. It is, therefore, reasonable to attribute a mental1 element (such as knowledge that the harboured person was involved in a terrorist act) as indispensable to make it a penal act. That apart, there is nothing in the Act, either expressly or even by implication, to indicate that mens rea has been excluded from the offence under Section 3(4) of TADA. 55. There is a catena of decisions which has settled the legal proposition that unless the statute clearly excludes mens rea in the commission of an offence the same must be treated as essential ingredient of the criminal act to become punishable. (State of Maharashtra v. Mayer Hans George , Nathulal v. State of M.P. ). 56. If Section 3(4) is understood as imposing harsh punishment on a person who gives shelter to a terrorist without knowing that he was a terrorist such an understanding would lead to calam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess has stated so nor has any one identified the said Suhel Ahmed as one of the arraigned accused. An endeavour was, of course, made by the prosecution to show that A-6 had impersonated in other areas as Suhel Ahmed. Even if it was so, what should have been established is that A-6 had stayed in the hotel. But no witness said that fact during evidence. 62. Learned judge of the Designated Court has relied on two letters which he had received presumably from A-7 while the accused was languishing in jail during the pre-trial period. Learned judge while questioning A-7 under Section 313 of the Code whipped out those letters from his pocket, marked them as Ext. DA-7/1 and DA-7/2 and asked the following question: Question:- You had submitted to this Court document Ex. DA-7/1 DA-7/2 under your signatures. What have you got to say? Before A-7 answered the question he wanted to go through them and after going through the letters he answered thus: Both documents bear my signatures. They were prepared by my brother and my representatives but I had signed them without reading them. They were submitted to the court on my behalf but I was not having any knowledge whether these have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hans Plaza - nothing more and nothing else. We need not, therefore, proceed further to the other three requirements necessary to fasten him with liability under Section 3(4) of TADA. The result is, conviction of A-7 in this case cannot be upheld. 67. The case against A-8 (S.P. Rai) and A-9 (Kalpnath Rai) can be considered together so that much overlapping and repetitions can be averted. A-8 was the Additional Personal Private Secretary of A-9 during the time when the latter was Union Minister of State for Power. The charge against them is that they have sheltered two terrorists (A-1 Subhash Singh Thakur and another person called V.N. Rai ) in the guest house attached to the National Power Transmission Corporation (NPTC for short), now known as Power Grid Corporation. V.N. Rai is said to be an accused in JJ shoot out case. The finding of the Designated Court is that A-8 had harboured A-1 Subhash Singh Thakur and A-9 has harboured V.N. Rai during certain period in 1992. 68. Shri Jaitly, learned senior counsel who argued for the accused has contended that even assuming that a person by name V.N. Rai had stayed in the NPTC Guest House there is no evidence that he was a terrorist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspirator for an offence under this Act or rules made thereunder; provided that co- accused, abettor or conspirator is charged and tried in the same case together with the accused . In this context we may point out that the words or co-accused, abettor or conspirator in the proviso were not in the section until the enactment of Act 43 of 1993 by which those words were inserted. By the same amendment Act Section 21 was also recast which, as it originally stood, enabled the Designated Court to draw a legal presumption that the accused had committed the offence if it is proved that a confession has been made by a co-accused that the accused had committed the offence. 74. The legal presumption linked to an accused vis-a-vis a confession made by a co-accused has been deleted by Parliament through Act 43 of 1993 and as a package inserted the words mentioned above in Section 15. 75. What is the effect of such deletion from Section 21 and addition to Section 15 of TADA? It should be remembered that under Section 25 and 26 of the Evidence Act no confession made by an accused to a police officer, or to any person while he was in police custody could be admitted in evidence, and und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove legal position the confession made by A-1(Subhash Singh Thakur), A-2(Jaynendra Thakur) and A-3(Shyam Kishore Garikapti) cannot be used against A-4(Chanderkant Patil), even as for corroborative purposes because the former set of accused were not tried for the offence under Section 3(4) of TADA. So the first condition set forth in Section 30 of the Evidence Act is nonexistent. Though under Section 15 of TADA such a confession is admissible in evidence even when the confessor and the co-accused are tried in the same case (no matter that they are not tried together for the same offence) the utility of such a confession as against the co-accused gets substantially impaired for all practical purposes unless both of them are tried for the same offence. Consequently in the present trial the confessions made by the first three accused would remain at bay so far as A-4(Chanderkant Patil) is concerned as for Section 3(4) of TADA. The further corollary is since there is no substantive evidence against A-4 regarding Section 3(4) of TADA he cannot be convicted under this Section. 80. Now we have to consider the case of prosecution that the police party conducted a raid during the wee hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in that team. 84. The third team consisted of PW-6(Roop Lal, SI), PW-7(Surendra Singh, Constable), PW-11 (Rajendra Singh, ASI) and PW-12(Mahabir Singh, HC) as well as others. They caught hold of A-3 (Shyam Kishore Garikapati) and seized a country-made pistol as well as a live cartridge from him. That version is spoken to by the aforesaid witnesses besides PW-1 (Prithvi Singh). 85. The fourth team consisted of PW-1 (Prithvi Singh, Inspector), PW-2(Jagdish, ASI), PW-3(Rakesh, Constable) and a few other policemen. They caught A-1 (Subhash Singh Thakur) Who had in his possession one hand- grenade wrapped in a raxine bag.. Immediately a requisition was sent to the Bomb Disposal Squad for defusing the grenade, which was promptly reciprocated. After it was defused the same was taken into custody. That version is fully supported by the aforesaid witnesses. 86. As against the said version of the prosecution the five accused had put forth a totally different version in their defence. According to them the police took them into custody from different places on 19.7.1993 and detained them under illegal custody and concocted the present version for the purpose of nailing them to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee, J) is a party, the aforesaid position has been stated in unambiguous terms, the relevant portion 6f which is extracted below: Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony. 92. In Balbir Singh v. State this Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated by this Court time and again vide Paras Ram v. State of Haryana , Same Alana Abdullla v. State of Gujarat , Anil alias A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Jain) would be apposite in this context. He is the owner of premises No. 105 Gagan Vihar Extension, Delhi (which was in the name of his wife) which was rented out to A-4 (Chanderkant Patil). The witness has said in evidence that A-4 was staying in that apartment and in July 1993 he accommodated 4 or 5 friends in the same apartment with the permission of the landlord. The most important aspect of his testimony is, he had seen A-4 in the apartment till 23.7.1993. Of course a suggestion was put to him that he would have seen A-4 only till 18th or 19th of July 1993, but the witness had emphatically repudiated that suggestion. This evidence of PW-14 gives us almost a guarantee that A-4 was. not taken into police custody before 23.7.1993 and that his case in defence that he was actually nabbed by police on 19.7.1993 is not a true version. 98. Thus we can unhesitatingly concur with the finding of the trial court that the prosecution version regarding the rounding up of A-1 to A-5 during the wee hours of 23.7.1993 with arms and ammunition, is true. 99. The upshot is the following: Prosecution has not established any case against A-5 to A-9 and A-12. Hence they are entitled to acq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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