TMI Blog2016 (12) TMI 1893X X X X Extracts X X X X X X X X Extracts X X X X ..... is court is of the opinion that accused 1 to 21 are guilty of offence under Section 25 (1B) (a) of the Arms Act, 1959. Hence we alter the conviction and sentence imposed by the court below under Section 5 (1) (a) read with Section 27 of the Arms Act to one under Section 25 (1B) (a) of the Arms Act. Whether the conviction and sentence imposed by the court below under Section 4 5 of the Explosive Substances Act, 1908, is sustainable or not? - HELD THAT:- The prosecution was successful in proving that the accused 1 to 21 were having possession and control over the material objects which were recovered from the scene. Going by the definition of 'explosive substances' contained in Section 2 (a) of the Act, it includes materials for making any explosive substances and also any material used or intended to be used in causing or aiding in causing any explosion. As per Section 4 (b) of the Act, having possession and control of any explosive substances with the intent to endanger life or to enable any other person by means thereof to endanger life or to cause serious injury to property, is punishable, despite whether any explosion does or does not takes place. Therefore the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the building at the place of occurrence for having a meeting of a Trust named 'Thanal', for the purpose of collecting funds for completing construction of the building which is owned by the said Trust. It is stated that, the said building was in fact remaining locked from outside at that time and the police authorities have entered the building by breaking open the lock. Even though some of the persons who were present there had left the scene on noticing the act of the police, accused Nos.1 to 18 remained there and the police have called them inside the room and taken them into custody. They have denied of having any connection with respect to the substances alleged to have recovered from the place of occurrence, and also denied the recovery of such material objects from the place. Whether an adverse inference with respect to guilt of the accused can be drawn, because they have failed in establishing the version put forth by them through the statement made under Section 313 Cr.P.C.? - HELD THAT:- In the case at hand, the prosecution has not conducted any investigation with respect to the source or procurance of the incriminating materials. There is no evidence add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed by the Union Government, represented through the National Investigation Agency, seeking enhancement of the sentence imposed against the above said accused. Crl.Appeal No.316 of 2016 is also filed by the National Investigation Agency challenging acquittal of the 22nd accused. The court below had convicted accused Nos.1 to 21 under Sections 120B and 143 read with Section 149 of the Indian Penal Code, Section 5(1)(a) read with Section 27 of the Arms Act 1959, Sections 4 and 5 of the Explosives Substances Act 1908 and Sections 18 and 18A of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as 'the UA(P) Act' for short]. The 1st accused was also convicted for offence under Section 153A, 153B(1) (c) of the I.P.C. Accused Nos.1 to 21 were sentenced for different periods of imprisonment and with fine. 2. The prosecution charge in brief is that, the accused are active members of the organisations named Popular Front of India (PFI) and Socialist Democratic Party of India (SDPI). In pursuance of a conspiracy hatched among themselves to acquire training in making and usage of weapons and explosives in order to retaliate against the alleged tortures fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 'Yoga' classes are going on. But they could not give any satisfactory explanation regarding the arms and explosives kept therein. A sword was seen kept in the corner of the hall and one piece of brick tied with an iron string was seen kept immersed in a bucket filled with petrol. A human target made with wooden frame was also found. In the noon, at about 12.30 the Circle Inspector of Valapattanam Police came to the spot along with Police force. The police procured the presence of 5 local people and the accused were shown to them and the articles were seized from the table kept inside the hall. One flag of SDPI and a Banner and various Pamphlets were also seized along with 'Tejus Newspaper' and a Receipt Book of 'Tejus Fortnightly'. Members of the 'Bomb Squad' of the police came to the spot at 14.15 hrs. All the articles were seized on preparing Ext.P9 search list and accused Nos.1 to 21 were arrested. PW1 reached the police station by 19.30 hours and registered Ext.P10 FIR. On search of the body of the accused, various documents like Identity Cards, Driving Licenses, etc. were seized, which were marked in evidence as Ext.P11 to P42. The Bombs sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nside with a jute bag spread over it. They saw something like a Bomb, broken glass pieces, iron nails, and ash coloured powder kept in a plastic cover on the table. There were also some winding wire and a roll of jute thread. In front of the table on a 'flex sheet' spread over the floor, something like a Bomb was seen kept and on the southern side it certain persons were seen sitting and three persons were seen standing in front of the table looking towards south. The persons sitting in the flex sheet were facing towards north. According to PW1 a person who was standing on the northern side of the table, who was later identified as the 1st accused was delivering a speech stating that, we the muslims in India are suffering various tortures from members of other religions, especially from hindus and that for preventing the same we have to gain training on weapons. According to PW1, he along with the police party had entered the hall by opening the door and at that time the speech was stopped. When questioned, the accused replied that 'Yoga' class was going on there. But when questioned about the articles seen on the table and on the flex sheet, they had no convincing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on 1-5- 2013, after obtaining orders from the court. The remnants of the defused Bombs were collected and entrusted with the Investigating Officer on marking the same as X1 to X4. PW4 is the Civil Police Officer who guarded the scene of occurrence and witnessed seizure of MO17 Scooter. He also supported the prosecution. PW10 had also supported the version regarding seizure of the Scooter from the scene of occurrence, on 25-4-2013. 8. From the evidence let in by the prosecution they succeeded in establishing that, on the relevant date and time accused Nos.1 to 21 had assembled inside the building in question and they were having possession and control over two Bombs, various materials used for manufacturing Bombs, MO1 sword, the effigy made out out of wooden rafters and 5 numbers of wooden sticks. The testimony of PW1 is that he heard the accused No.1 delivering a speech explaining about necessity of acquiring training on arms in order to prevent the tortures faced by muslims in India from members of other religions, especially from hindus. According to him, he heard the said speech when he along with his police party had peeped into the hall through the door on the northern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1 to 21 from the scene, they have not spoken anything about the alleged speech. Question as to whether the court can accept the sole oral testimony of PW1 as a convincing evidence worth credence to find that the 1st accused had made a speech as alleged, at the relevant time. Learned Special Prosecutor appearing for NIA contended that there is nothing to discredit the evidence of PW1 about this aspect. It is contended that the evidence of PW1 in this regard cannot be rejected merely for lack of corroboration through evidence of other witnesses. 9. In this regard, learned Special Prosecutor had cited a decision of the Hon'ble Supreme Court in Praveen Kumar V. State of Karnataka ((2003) 12 SCC 199). But the issue dealt with therein is with respect to acceptability of evidence coming within the purview of Section 27 of the Evidence Act. It is held by the hon'ble apex court that, normally in cases where evidence let in by the prosecution as to a fact depends solely on police witnesses, the courts seek corroboration as a matter of caution and not as a matter of routine. It is only a rule of prudence which makes the court to seek corroboration from an independent source in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which include Bombs, other explosives, substances used for manufacturing Bombs, MO1 sword, wooden sticks and the effigy. The prosecution had adduced evidence regarding searches conducted at the houses of accused Nos.3, 22 24 and about the recovery of some printed materials as well as weapons. The accused No.24 stands not yet chargesheeted in the case. Accused No.22 stands acquitted. The Pamphlets recovered from the house of 3rd accused is not supportive of in any manner to prove that the accused 1 to 21 have organized the camp for the purpose of imparting training on manufacture of Bombs in order to protest the alleged tortures faced by members of the muslim community from other religions, especially from hindus. 11. Based on the above conclusions, we are persuaded to analyse sustainability of the conviction imposed for each of the offences. The prosecution had succeeded in proving that accused Nos.1 to 21 were found to be in possession and control of MO1 sword, two Bombs which were defused by PW8, MO 9 series glass pieces and MO11 series to MO13 substances used for manufacturing Bombs. Whether the possession of those material objects would attract any offence punishable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. As already discussed above, the prosecution was successful in proving that the accused 1 to 21 were having possession and control over the material objects which were recovered from the scene. Going by the definition of 'explosive substances' contained in Section 2 (a) of the Act, it includes materials for making any explosive substances and also any material used or intended to be used in causing or aiding in causing any explosion. As per Section 4 (b) of the Act, having possession and control of any explosive substances with the intent to endanger life or to enable any other person by means thereof to endanger life or to cause serious injury to property, is punishable, despite whether any explosion does or does not takes place. Therefore the prosecution has made out a case against accused 1 to 21 making them guilty of offence punishable under Section 4 (b) (i). The prosecution had also succeeded in proving that, accused 1 to 21 were knowingly in possession and control of the explosive substances so as to give rise to a reasonable suspension that such possession and control was not for any lawful object. The accused 1 to 21 had failed to show that they had in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween religions, especially between muslims and hindus, by delivering a speech which is likely to disturb public tranquility and by making assurances prejudicial to the national integration and for that purpose they used the Bombs and Sword for training youngsters for terrorist activities and also imparted training in making of country Bombs, the evidence adduced has not supported any such allegations regarding creating of any communal enmity between muslims and hindus. This court had already found that the sole evidence adduced through PW1 with respect to the alleged speech made by the 1st accused is not acceptable to sustain a conviction. Further, the Pamphlets and other printed materials recovered from the place of occurrence as well as from the house of the 3rd accused, do not disclose any thing to establish that the unlawful assembly or the possession and control of the arms and the explosives substances, was intended for any purpose to promote enmity between different communities or that it is to disturb public tranquility or to use it any manner prejudicial to the national unity and integrity. Therefore, this court is of the considered opinion that the conviction imposed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to be analysed is as to whether the unlawful assembly of accused Nos.1 to 21 and their possession and having control over the arms and explosive substances was with any intention to commit a 'terrorist act' or was in any manner preparatory to the commission of a 'terrorist act'. Learned Special Prosecutor argued that the intention with respect to the unlawful assembly and their possession and control over the substances need to be inferred as one intended to strike terror among people, even assuming that there is no evidence to prove that it is intended to threaten the unity, integrity, security or sovereignty of the country. He further contended that, use of such explosive substances for the purposes of demonstration would satisfy the ingredients of the usage, contemplated under clause (a) of Section 15. It is also contended that such usage, when it becomes likely to cause death or injury, can be considered as usage coming within the purview of that sub clause, dehorse whether any death or injury has sustained to any person or any damage or destruction had caused to any property. As we already discussed, the prosecution has not established through any convincin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rorism from other form of violence therefore appears to be the deliberate and systematic use of coercive intimidation. Even though crime committed by a 'terrorist' and an ordinary criminal would be overlapping to an extent, but then, it is not the intention of the legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. The hon'ble apex court further observed that, every 'terrorist' may be a criminal. But every criminal cannot be given the label of a 'terrorist', only to set in motion the more stringent provisions of TADA. It is held that the criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as enumerated in Section 3(1) and which causes or are likely to result in the offence as mentioned in the said Section. 17. Learned counsel for the appellant also placed reliance on another decision of the hon'ble Supreme Court in Bonkya alias Bharat Shivaji Mane and others v. State of Maharashtra (AIR 1996 SC 257). The hon'ble apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) and A.R.Antulay v. Union of India (1988 2 SCC 764). Quotation of the relevant paragraph is that; The Act intends 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 reason 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. It is held by the honourable Supreme Court in Pulin Das (supra) that, 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 should be 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 intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding assembly of the accused persons or their possession and control over the explosive substances and the arms, cannot be inferred as one intended for striking terror or as preparatory to commit any terrorist act. Nor it can be inferred that the possession of those substances are intended to endanger or likely to endanger any person or property. Therefore no offence under the UA(P) Act is made out, is the contention. 21. Per contra, the Special Prosecutor appearing on behalf of the N.I.A. contended that, the accused persons failed in giving any proper or convincing explanation with respect to their presence at the place of the occurrence and also with respect to the possession and control over the explosive substances and arms. Therefore it is contended that, the court has to draw an inference that the unlawful assembly and the possession and the control of explosive substances and arms are preparatory to commit a terrorist act, coming within the purview of Section 15 of the UA(P) Act. He had placed reliance on a decision of the honourable Supreme Court Munna Kumar Upadhyay v. State of Andhra Pradesh [(2012)6 SCC 174]. It is held therein that, the statement of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which is owned by the said Trust. It is stated that, the said building was in fact remaining locked from outside at that time and the police authorities have entered the building by breaking open the lock. Even though some of the persons who were present there had left the scene on noticing the act of the police, accused Nos.1 to 18 remained there and the police have called them inside the room and taken them into custody. They have denied of having any connection with respect to the substances alleged to have recovered from the place of occurrence, and also denied the recovery of such material objects from the place. 23. Question to be considered is as to whether an adverse inference with respect to guilt of the accused can be drawn, because they have failed in establishing the version put forth by them through the statement made under Section 313 Cr.P.C. In the case at hand, the prosecution has not conducted any investigation with respect to the source or procurance of the incriminating materials. There is no evidence adduced as to who had purchased those materials or from where it was purchased. The prosecution had also failed in bringing any evidence to prove that the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the said accused was revealed to PW1 from the spot of occurrence itself, even before conducting the search. If that would have been the case, there was no reason to omit the name of 22nd accused in Ext.P10. It is evident from the records that the 22nd accused was implicated in the crime only through a report submitted on 26.4.2013, which had reached to the court only on 2.5.2013. With respect to seizure of the Scooter from a place near to the place of occurrence after 2 days of the occurrence, there is no clear evidence to show that he was using the vehicle during the relevant time. The testimony of PW21 who is the brother-in-law of the brother of accused No.22 is that, he was using the vehicle during the relevant time. With respect to seizure of the weapons from the house of the 22nd accused, the prosecution case itself was that the building belongs to the mother of the 22nd accused and it was occupied by PW21 on rental basis. There is no evidence to show that the accused No.22 was present in the said house. There is no convincing evidence available to hold that accused No.22 was occupying the room from where recoveries were effected. For the above said reasons, the court be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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