Full Judgment Text
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PETITIONER:
SUBHASH SINGH THAKURSHYAM KISHORE GARIKAPATTICHANDRAKANT ANN
Vs.
RESPONDENT:
STATE (THROUGH CBI)
DATE OF JUDGMENT: 06/11/1997
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
THE 6TH DAY OF NOVEMBER, 1997
Present:
Hon’ble Mr. Justice M.K.Mukherjee
Hon’ble Mr. Justice K.T.Thomas
V.R.Reddy, Additional Solicitor General, Arun Jaitley,
V.C.Mahajan, V.S.Kotwal, Rajinder Singh, S.R.Chitnis, K.T.S.
Tulsi, Gopal Subramanium, M.N.Sukumaran Nair, S.B.Wad,
Sr.Advs., H.R.Khan, I.U.Khan, Rajeev K.Singh, Chandra Kant
Nayak, R.N.Keshwani, D.K.Garg, Alok Mahajan, P.N.Gupta,
C.R.Dighe, Ms. Late Krishnamurti, Vikas Pahwa, Anil K.Gupta,
Ranjit Thomas, Ms.C.K. Sucharita, K.R.Nambiar, M.T.George,
M.Nizamudeen, ,Sunil Mehta, Arun
K.Sinha, A.Mariarputham, P.Parmeswaran, Y.P.Mahajan,
T.C.Sharma, Advs. with them for the appearing parties.
J U D G M E N T
The following Judgment of the Court was delivered:
CRIMINAL APPEAL NO.311 OF 1997
WITH
CRIMINAL APPEAL NO. 438 OF 1997
AND
CRIMINAL APPEAL NO.445 OF 1997
AND
CRIMINAL APPEAL NO. 447 OF 1997
AND
CRIMINAL APPEAL NO. 486 OF 1997
Jayendra Thakur @ Bhai Thakur
The Govt. of National Capital Territory of
Delhi/C.B.I
AND
CRIMINAL APPEAL NO. 418 OF 1997
Sabu V. Chacko
Union of India
AND
CRIMINAL APPEAL NO. 440 OF 1997
S.P. Rai
State through C.B.I
AND
CRIMINAL APPEAL NO. 374 OF 1997
M/s. East West Travel & Trade Links Ltd.
Union of India
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AND
CRIMINAL APPEAL NO. 545 OF 1997
Paresh Mohan Desai
The Govt of National Capital Territory of
Delhi/C.B.I.
AND
CRIMINAL APPEAL NO. 591 OF 1997
Mohd. Ahmed Mansoor
The State through C.B.I.
J U D G M E N T
Thomas J.
Out of twelve accused persons arraigned before a
Designated Court In Delhi, ten were convicted of different
offences under Terrorist and Disruptive Activities
(Prevention) Act 1987 (for short ’TADA’). They are the
appellants before us. Some of them were found to be members
of a terrorists gang called ’Davood Ibrahim Group.’ Three
persons, including a former Union Minister of State for
Power (Kalpnath Rai) were found to have harboured hardcore
terrorists, besides fastening such a finding with A12 (M/s
East West Travel and Trade Links Ltd). All of them except
the company were sentenced to varying terms of imprisonment
(three of them to life imprisonment) and fine ranging from
Rupees ten lakhs downwards. A-12, company was sentenced to a
whopping fine of Rs. fifty lakhs.
The incipient backdrop with events which culminated in
the nabbing of five accused (A1-Subhash Singh Thakur; 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 in incident which happened on
30.40.1991 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
gatecrashed 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).
For some time in early July 1993 the Delhi Police were
getting secret informations that certain members of a
terrorists gang having nexus with "Davood Ibrahim group"
have escaped from Bombay and perched in hideouts in Delhi.
Those hiding terrorists were closely watching the
developments following the arrest of one Amit Tyagi who
belong to yet another terrorists’ gang. They feared that the
police might track them down getting scent from the arrested
terrorist. Delhi Police were on the alert the arrested
terrorist. Delhi Police were on the alert to trace out such
hide-outs. Delhi Crime Branch Police formed a squad to
prevent any blitz being operated by the hiding terrorists.
On 23.7.1993 Delhi Crime Branch Police got secret
information about the movements of certain terrorists and
that they might proceed to Indira Gandhi International
Airport as part of an orchestrated cabal to strike at
designed targets. So a posse of police personnel, headed by
Shri Ajay Kumar, Assistant Commissioner of Police, proceeded
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to Gagan Vihar Extension, Vikas Marg, Delhi in six private
cars and reached there by 3.00 A.M. The police-party got
themselves divided into four different teams and each took
different strategic position by keeping a close vigil on the
suspected persons.
During the wee hours, around 4.00 A.M. accused 1 to 5
sneaked out from their hiding place in a Toyota car. The
police party stopped the car. When its driver tried to
reverse it in a bid to escape, the police-party surrounded
the vehicle. They caught the five accused red-handed with
lethal arms as well as ammunitions. A-1 Subhash Singh
Thakuar had a pistol (0.38 bore) and four live cartidges; A-
3 Shyam Kishore Garikapti had a country-made pistol and some
cartridges; A-4 Chanderkant Patil had a revolver (0.38 bore)
and four live cartridges; A5 Paresh Mohan Desai had a button
actuated Knife. With the help of Fateh Singh, SI of the Bomb
Disposal Squad, the hand-grenade was dismantled and
diffused. The police-party seized all the lethal weapons as
well as ammunitions under seizure memorandums prepared then
and there. Requisitions were forwarded to the DCP seeking
permission to proceed with the case and after obtaining
written permission they arrested the five accused and
brought them to the police station.
On 26.7.1993, investigation of this case was made over
to the Central) Bureau of Investigation as per orders of the
Government. On interrogation of the five accused CBI
officials came to know that there were links between them
and other hardcore terrorists.
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 Sing)
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 Thakur)
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. Section to prosecute A1 was accorded by the
Director of CBI, for the offence under Section 3(S) of TADA
and Section 25 of the Arms Act, 1959. Charge-sheet, at the
first instance, was filed against A1 to A6 for the said
offences. Learned Judge of the Designated Court, upon
consideration of the charge-sheet, found that there were
materials to proceed against A7 (Sabu Chako) for harbouring
some terrorists. Thereupon he issued summons to that
accused. Subsequently the CBI filed as supplementary charge-
sheet against A8 (SP Rai), A9 (Kalpnath Rai), A10 (Brij
Bhushan Saran Singh), A11 (Sanjay Singh) and A12 (M/s East
West Travel and Trade Links Ltd.) on the allegations that
those accused have harboured one or another terrorist during
some time or the other.
As A-11 (Sanjay Singh) could not be brought to trail,
inspite of many efforts, he was declared a proclaimed
offender and the case against him was hence split up.
Subsequently, the Director of CBI accorded sanction to
prosecute all the accused in the Designated Court. After
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hearing both the prosecution and the accused charges were
framed against different accused for different offences
under TADA and also under Section 25 of the Arms Act.
After a long drawn trial, examining a large number of
witnesses and marking a good number of documents and after
questioning each of accused under Section 313 of the Code of
Criminal Procedure (for short ’the Code’) and after
affording an opportunity to the accused for adducing defence
evidence the Designated Court convicted A1, A2 and A3 under
Section 3(5) and Section 5 of the TADA and also under
Section 25 of the Arms Act, (Each of them was sentenced to
undergo imprisonment for life and a fine of rupees ten lacs
under first count, imprisonment for five years and a fine of
rupees ten thousand under the second count, imprisonment for
three years and a fine of rupees ten thousand under the
third court)
A-4 was convicted under Section 3(4) and Section 5 of
the TADA as well as Section 25 of the Arms Act. (He was
sentenced to undergo imprisonment for life and a fine of Rs.
five lacs on the first count, imprisonment for five years
and a fine of rupees ten thousand on the second count, and
imprisonment for three years and a fine of rupees ten
thousand on the third count).
A-5 was convicted only under Section 25 of the Arms Act
and was sentenced to undergo imprisonment for the period he
had already undergone and to pay 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.
A7, A8, A8 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. A8 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.
We heard arguments of different senior counsel for
different appellants at length. Shri V.R. Reddy, Add1.
Solicitor General argued for CBI in defence of the
conviction and sentence passed on the respective appellants.
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 vitiated. The sub-
section reads like this:
"20A(1) Notwithstanding anything
contained in the Code, no
information about the commission of
an offence under this Act shall be
recorded by the police without the
prior approval of the District
Superintendent of Police."
All the senor counsel contended that the said
requirement was not complied with in this case before FIR
was registered in respect of each of the five accused
intercepted on 23.7.1993. PW1 (Prithvi Singh-Inspector of
Crime Branch) who claimed to have been in the raiding
operation has deposed that immediately after the arrest of
the armed men he sent a written application to DCP (same
rank as District Superintendent of Police) seeking
permission to register the case against first accused under
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the TADA. According to PW1 the application so forwarded is
Ext. PW1/A and DCP has accorded approval thereon. Similar
applications were forwarded by the persons who headed the
other three teams also and they to claimed to have obtained
similar approval. The said factual position adopted by the
Crime Branch was very hotly assailed during cross-
examination.
All the applications for approval were typewritten
records. PW1 has said during cross-examination, that one
typewriter was brought from the office of the ACP to the
venue of capture of the accused and all the applications
were got typewritten on it. The trial judge was not
persuaded to believe this part of the evidence of the
prosecution because the types found on different
applications could only have been produced from different
typewriters.
We scrutinised the application and we are satisfied
that there is considerable force in the contention of the
defence that all the applications were not typed on the same
typewriter. So the stand of the prosecution that written
requests were made by the police party for approval cannot
be believed and the contention of the defence on that score
was rightly repelled by the Designated Court.
But the above finding is not enough to end the travails
of the appellants in this case. Ex. PW-1/D is the report
(Rukka) which PW1 submitted to the Crime Branch Police
Station and Ex. PW10.A is the FIR prepared by the said
police on its basis. It is clearly mentioned in the former
that "permission for registration of the case was obtained
from DCP/CR after informing him of the facts and
circumstances." The 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.
The 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 arise in a
particular situation. So oral approval by itself is not
illegal and would not vitiate the further proceedings.
The apart, one of the offence included in the FIR (Ex.
PW10/A) is Section 5 of the Explosive Substances Act. There
is no legal requirement to obtain prior permission from the
DSP to register a case for that offence. So the FIR as such
was not vitiated even otherwise. Perhaps investigation into
the offences could not have been commenced until approval
was obtained from the DSP. Be that as it may, as we found
that oral approval was obtained from the DSP concerned, that
is sufficient to legalise the further action.
I Ahmad Umar Saeed Sheikh vs. State of U.P. [1996 (11)
SCC 61] an FIR was registered under Sections 332, 307, 427
of the IPC and also under Sections 3 and 4 of the TADA. No
prior approval was obtained in that case under Section
20A(1) and hence it was contended that the entire FIR was
liable to be quashed. A Bench of two judges of this Court
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has repelled the contention and observed thus:
"It is of course true that when the
above FIR was recorded no prior
approval of the Superintendent of
Police was obtained as required
under Section 20A(1) but, as
noticed above, the FIR was recorded
not only for offences under TADA
but also for offences under the
Indian Penal Code for commission of
which the police officer concerned
was competent to lodge an FIR
without such approval. The absence
of approval of District
Superintendent of Police as
required under Section 20A(1) of
TADA at that stage only disentitled
the investigating agency to
investigate into the offences
relating to TADA but it had a
statutory right to investigate into
the other offence alleged in the
FIR."
The next hurdle which prosecution has to surmount was
regarding sanction under Section 20A(2) of the TADA. The
sanction accorded by the Director of the C.B.I. to prosecute
A-1 to A-6 has been marked in this case as Ext. PW-93/27.
The order narrates the facts leading to the seizure of arms
and ammunitions from A-1 to A-5 and also about the
activities of A-6. In the operative portion thereof the
Director has stated thus:
"AND WHEREAS I. K. Vijay Rama Rao,
Inspector General of Police, Delhi
Special Police Establishment &
Director, Central Bureau of
Investigation, New Delhi being the
competent authority to sanction
prosecution in respect of offences
u/s 3(5) of TADA (p) ACT, 1987 and
25 Arms Act, 1959 fully and
carefully examining the material
placed before me in regard to the
said allegations and circumstances
of the ace consider that accused
Scubas Sing Thakur, Jaynendra
Thakur, Shyam Kishore Garikapatti,
Chandrakant Patil, Paresh Mohanlal
Desai and Mod. Ahmed Mansoor should
br prosecuted in the court of law
for the said offences.
NOW, THEREFORE, I ........ do
hereby accord sanction u/s 20(A)
(2) of TADA (P) ACT, 1987 for the
prosecution of S/Sh. Subhash Singh
Thakur, Jayendra 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."
Learned counsel for the appellants made multi-pronged
onslaught on the aforesaid sanction. First is that the
sanction is not sufficient to proceed against the accused
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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.
We may observe, straightway, that we are not impressed
by the third point as we are satisfied, by reading the
sanction order, that the authority concerned was satisfied
of the facts constituting the offences mentioned therein. Of
course, Shri V.S. Kotwal, learned senior counsel contended
that sanctioning authority did not have necessary materials
before him to show that the arms seized on 23.7.1993 were
live arms. But the report of the officers who seized them to
the effect that they were live arms was available to the
Director of C.B.I. If he felt that such a report can be
believed it is not necessary that the Director should have
waited for the result of the analysis conducted by the
laboratory upon those arms. That the sanctioning authority
really intended to launch prosecution for the offence of
illegal possession of arms is quite clear from the
statements made in the order. True, the section for the
offence (Section 5 of TADA) has not been specifically
mentioned therein but that is of no serous consequence as
long as the authority has specified the facts and mentioned
further that for the offence arising from such facts,
sanction is accorded.
In this context we would refer to Section 465 of the
Code:
"465. Finding or sentence when
reversible by reason of error,
omission or irregularity.- (1)
Subject to the provisions
hereinbefore contained, on finding,
sentence or order passed by a court
of competent jurisdiction shall be
reversed or altered by a court of
appeal, confirmation or revision o
account of any error, omission or
irregularity in the complaint,
summons, warrant, proclamation,
order, judgment or other
proceedings before or during trial
or in any inquiry or other
proceedings under this Code, or any
error, or irregularity in any
sanction for the prosecution,
unless in the opinion of that
Court, a failure of justice has in
fact been occasioned thereby.
(2) In determining whether any
error, omission or irregularity in
any proceeding under this Code, or
any error, or irregularity in any
sanction for the prosecution has
occasioned a failure of justice,
the Court shall have regard to that
fact whether objection could and
should have been raised at an
earlier stage in the proceedings."
In the corresponding provision under the old Code (of
1898) the words "or any error or irregularity i any sanction
for the prosecution" were absent. Legal position under the
old Code, as settled by the decisions of various courts, was
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that any defect in sanction was not curable and hence the
prosecution itself would have been void. [vide Dr. Hori Ram
Singh vs. Emperor (AIR 1939 FC 43), Gokulchand Dwarkadas
Ramayya Munipalli vs. State of Bombay (AIR 1955 SC 287).
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.
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.
Sub-section (2) of Section 465 of the Code is not a
carte blanche for rendering all trials vitiate on the ground
of the irregularity of sanction if objection thereto was
raised at the first instance itself. The sub-section only
says that "the court shall have regard to the fact" that
objection has been raised at the earlier stage in the
proceedings. It is only one of the considerations to be
weighed but it dos not mean that if objection was raised at
the earlier stage, for that very reason the irregularity in
the sanction would spoil the prosecution and transmute the
proceedings into a void trial.
Shri V.R. Reddy, learned Add1. Solicitor General,
adopted another contention in this context. According to hm,
Section 12(2) of the TADA is sufficient to equip the
Designated Court with valid jurisdiction to convict any
accused for any other offence whether or not sanction for
such offence was also accorded. The said sub-section reads
as under:
"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 under 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 or, as the
case may be, such other law, for
the punishment thereof."
There the words "in the course of any trial under this
Act of any offence" pertain to the trial in respect of an
offence for which sanction has been accorded by the
authority as contemplated under Section 20A(2) of the TADA.
Similarly, the words "any other offence under this Act or
any rule made thereunder or under any other law" denote all
offences other than those falling in the first category. The
intention of the Parliament in conferring such a power on
the Designated Court is to prevent unmerited escape of
offenders from the clutches of penal consequences even in
cases where the Designated Court is satisfied during a valid
trial that some other offence has been established beyond
reasonable doubt. Once cognizance of any offence under TADa
has been taken validly by the Designated Court with a proper
sanction the court is not disabled from convicting an
accused for any other offence proved during the trial,
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whether or not sanction has been accorded in respect of such
other offence. The raisin d’etre is that it is the court of
law which 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.
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 a 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."
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 is not
enough that the accused concerned is a terrorist by himself,
but he should have membership in a terrorists gang which is
involved in terrorist acts. The third is that both
ingredients i.e. membership of terrorists’ gang and
involvement of such gang terrorist acts, must have taken
place after the sub-section was enacted. According to the
counsel there is utter lack of evidence in this case in that
regard.
Sub-section 3(5) was inserted in TADA by Act 43 of 1993
which into force on 23.5.1993. Under Article 20(1) of the
Constitution "no person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of the act charged as an offence". So it is not
enough that one was member of terrorists gang before
23.5.1993.
There are two postulates in sub-section (5). First is
that the accused should have been a member of "a terrorists
gang" or "terrorists organisation" after 23.5.1993. Second
is that the said gang or organisation should have involved
in terrorist acts subsequent to 23.5.1993. Unless bot
postulates exist together Section 3(5) cannot be used
against any person.
"Terrorist act" is defined in Section 2(h) as having
the meaning assigned to it in Section 3(1). That sub-section
reads thus:
"Whoever with intent to overawe the
Government as by law established or
to strike terror in people or any
section of the people or to
alienate any section of the people
or to adversely affect the harmony
amongst different sections of the
people does any act or thing by
using bombs, dynamite or other
explosive substances or
inflammables substances or fire-
arms or other lethal weapons of
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poisons or noxious gases or other
chemicals or by any other
substances (whether biological or
otherwise) of a hazardous nature in
such a manner as to cause, or as is
likely to cause, death of, or
injuries to, any person or persons
or loss of, or damage to, or
destruction of, property or
disruption of any supplies or
services essential to the life of
the community, or detains any
person and threatens to kill or
injure such person in order to
compel the Government or any other
person to do or abstain from doing
any act, commits a terrorist act."
The requirements of the sub-section are: (1) the person
should have done an act in such a manner as to cause, or as
is likely to cause death or injuries to any person or damage
to any property, or disruption of any supplies; (2) doing of
such act should have been by using bombs dynamites etc.; (3)
o 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 form doing
anything.
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 by 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
terrorists 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."
Can it be said that a person who conspires, abets,
advises or incites or facilitates the commission of the acts
specified in sub-section (1) was not committing a terrorist
act? It would be illogical delink the acts enumerated in
sub-section (3) from those specified in sub-section (1) for
the purposes of understanding the meaning of "terrorist act"
indicated in Section 3(5).
It is a cardinal principal of interpretation of law
that the definition given in a statute is not always
exhaustive unless it is expressly made clear in the statute
itself. They key words in the definition section (section 2)
themselves are clear guide to show that the definitions
given thereunder are to be appropriately varied if the
context so warrantees. The key words are these: "In this
Act, unless the context otherwise requires".
Therefore the meaningful understanding should be this.
For the purpose of sub-section (2) the terrorist acts are
those specified in sub-section (1) whereas fro the purpose
of sub-section (5) the terrorist acts would embrace not only
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those enumerated in sub-section (1) but those other acts
closely linked to them and indicated in sub-section (3)
also.
When so understood, if there is any evidence to show
that the gang to which A-1, A-2, A-3 or A-6 or any of them
was a member, has done any such act after 23.5.1993 then the
accused concerned is liable to be convicted under Section
3(5) of TADA.
But the fact is, in none of the charges framed against
the above accused there is any specification that any
terrorist act has been committed by a gang subsequent to
23.5.1993, nor has any evidence, whatsoever, been adduced to
show that any terrorists gang (of which those accused are
the members or not) has committed any terrorist act after
the said date.
In the light of stark paucity of materials in evidence
and in view of total want of any averment in the charges
regarding any activity after the said date it would be an
idle exercise to further probe into the width and amplitude
of the expression "terrorists gang" or "terrorist
organisation" or as to whether A-1, A-2, A-3 or A-6 were
members of any such gang.
The result of the above discussion is that conviction
of A-1 to A-6 for the offence under Section 3(5) of TADA
cannot be sustained under law.
Now, we proceed to consider whether the offence under
section 3(4) of TADA has been made out against A-7 (Sabu
V.Chako), A-8(SP Rai), A-9 (Kalpnath Rai) and A-12 (M/s East
West Travel Links). Before we take up the individual case
against each one of them we may refer to the contention
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 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 life and shall also be liable
to fine."
The word "harbours" has not been defined in TADA. An
endeavour was made, during arguments, to hook 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 expression used but not
defined in this Act and defined in
the code shall have the meanings
respectively assigned to them in
the code."
The Word "Code" in TADA must be understood as referring
to the Code of Criminal Procedure. 1973, as per Section
2(1)(b) of TADA. But the word "harbour" 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 in the Indian Penal Code by the following words in
clause ’Y’ of Section 2 of the Code:
"Words and expression used herein
and not defined but defined in the
Indian Penal Code (45 of 1860) have
the meanings respectively assigned
to them in that Code."
On the strength of the above provision learned counsel
contended that the word "harbour", which is not defined in
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TADA, must be understood in the same manner as it is
understood in the Indian Penal Code.
There are two hurdles in the way to adopt the IPC
definition of the word "harbour" as for TADA. First is that
TADA permits reliance to be made only on the definitions
included in the Procedure Code and not on the definitions in
the IPC. Second is, the word "harbour" as such has not been
used in the Procedure Code and hence the question of side-
stepping to Penal Code definitions does not arise.
Be that as it may, we would refer to the expression
"harbour" as understood in IPC, for, TADA is essentially a
penal statute and hence the meaning attached to the words in
the IPC can have a bearing on the words used in TADA, unless
they are differently defined in the Code.
Section 52-A of India Penal Code defines the word
"harbour" as including:
"Supplying a person with shelter,
food, drink, money, clothes, arms,
ammunition or means of conveyance,
or the assisting a person by any
means, whether of the same kind as
those enumerated in this section or
not to evade apprehension."
Sections 136 and 312 of IPC are the provisions
incorporating two of the offence involving "harbour" in
which the common words used are "whoever knowing or having
reason to believe." Another offence in the Penal Code
involving "harbour" is section 157 wherein also the words
"whoever harbours knowing that such person etc." are
available. It was contended that mens rea is explicitly
indicated in the said provisions in the Penal Code whereas
no such indication is made in Section 3(4) of TADA and
therefore, the elements of mens rea must be deemed to have
been excluded from the scope of Section 3(4) of TADA.
The word "harbours" used in TADA must be understood in
its ordinary meaning as for penal provisions. In Black’s Law
Dictionary its meaning is shown as "to afford lodging to, to
shelter, or to give a refuge to". Quoting from Susnjar vs.
U.S., CCA Ohio, 27 F.2d 223, 224, the celebrated
lexicographer has given the meaning of the word harbour 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 mental
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.
There is 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 vs. Mayer Hans
George, AIR 1965 SC 722, Nathulal vs. State of M.P., AIR
1966 Sc 43).
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 calamitous consequences. Many an
innocent person, habituated to offer hospitality to friends
and relatives or disposed to zeal of charity, giving
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accommodation and shelter to others without knowing that
their guests were involved in terrorist acts, would then be
exposed to incarceration for a long period.
For all the above reasons we hold that mens rea is an
essential ingredient for the offence envisaged in Section
3(4) of TADA.
On the above understanding of the legal position we may
say at this stage that there is no question of A-12 -
company to have had the mens rea even if any terrorist was
allowed to occupy the rooms in Hotel Hans Plaza. The company
is not a natural person. WE are aware that in many recent
penal statutes, companies or corporations are deemed to be
offenders on the strength f the Acts committed by persons
responsible for the management of affairs of such company or
corporations e.g. Essential Commodities Act, Prevention of
Food Adulteration Act etc. But there is no such provision in
TADA which makes the company liable for the acts of its
officers. Hence, there is no scope whatsoever to prosecute a
company for the offence under Section 3(4) of TADA. The
corollary is that the conviction passed against A-12 is
liable to be set aside.
A-7 (Sabu V. Chacko) the Regional Manager of A-12
company has been convicted of the offence under Section 3(4)
on the strength of a finding that he had harboured A-6 Ahmed
Mansoor in Hotel Hans Plaza, New Delhi on different days
during a period between February and October 1993. For
proving the said offence against him prosecution should have
established four facts. They are: (10 A-6 Ahmed Mansoor had
stayed in the Hotel; (2) Such stay was arranged at the
behest of A-7; (3) A-6 himself was a terrorist; and (4) A-7
knew that A6 was a terrorist.
Shri. Gopal Subramaniyam, learned senior counsel who
argued for A-7 contended that even the first fact has not
been established in this case and hence there is no need to
proceed to the other essentials.
There is enough evidence in this case to show that a
person called "Suhel Ahmed" had stayed in the said hotel
during the said period. We do not think it necessary to
refer to the evidence in that respect as it is not a
disputed fact. However, there must be evidence to show that
the said Suhel Ahmed is A-6 Mansoor. Unfortunately no
witness has started 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 not witness said that fact during
evidence.
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.
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They were submitted to the court on
my behalf but I was not having any
knowledge whether these have been
submitted to the court or not."
The above letters, read as a whole, were in substances
a litany of his innocence. Such as:
"My lord, Sir, I suffered all these
9 months for not being guilty. Sir
I have a family. I have only a
small dram, to lead a good life
with my family without any over
ambitions.
with pain and sorry I request you
to please take appropriate actions
against the people who tell and
spread the untold story which you
or CBI never told. Because that is
an assasination of the character of
a person who does not know anything
or did not do anything wrong. My
Lordship, I have never even heard
the name of A1 to A6. or met them
in any life before I came to jail.
I the name of Jesus I can assure
you these things. My Lordship, I am
swearing in the name of God, I am
an innocent man, Please relieve me
from this agony and pain. Please
relieve me from this agony and
pain. If not, I do not think I can
take all these things for long.
Please have pity on me."
But the unfortunate aspect is, learned judge has
extricated one sentence out of those letters and used it as
though it was art of prosecution evidence against the
accused and jettisoned the entire remaining bulk of the
letters which are lengthy supplications for kindness and
mercy.
It was illegal on the part of the learned judge of the
Designated Court to have used any part of the said letters,
especially when those letters were not adduced as evidence
in the case through any procedure known to law. Not even an
affidavit has been filed by any one atheist for formally
proving those letters in evidence. Section 314 of the Code
is intended to afford opportunity to an accused "to explain
any circumstance appearing in the evidence against him." It
is trite that an accused cannot be confronted during such
questioning with any circumstances which is not in evidence.
Section 313 of the Code is not intended to be used as an
interrogation. No trial court can pick out any paper of
document from outside the evidence and abruptly slap it on
the accused and corner him for giving an answer favourable
or unfavourable. The procedure adopted by the learned judge
is using the said two letters is not permitted by law. We
therefore, disapprove the said course and dispel the said
letters book bell and candle.
What remains as against A-7 is that one person by name
Suhel Ahmed had stayed in Hotel 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.
The case against A8. (S.P. Rai) and A-9 (Kalpnath Rai)
can be considered together so that much overlappings and
repetitions can be averted. A-8 was the Additional Personal
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Private Secretary of A-9 during the tie 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.
Shri Jaitley, 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 and that there is no shred
of evidence that A-9 knew that the said person was a
terrorist.
There seems to be some evidence to show that a person
by name "B.M. Rai" had stayed in the Guest House concerned.
PW-21 was the Senior Manager (Admn.) in the Power Grid
Corporation. He said that a person called V.N. Rai had to
be accommodated in the guest house on the recommendation of
A-8. This was corroborated by PW-38 who was Add1. General
Manager of the said corporation, though there is a little
discrepancy in the name mentioned by the last two witnesses
(one said it was on B.N. Rai, the other witness said that
the name is B.M. Rai), but nobody had identified the person
called B.N. Rai or B.M. Rai in the trial court. There is
nothing to show that the said person had anything to do with
any terrorist activity. Of course prosecution made an
endeavour to show that the person called B.N. Rai is the
same person arraigned in JJ shoot out case by name "Vijendra
Rai". Apart from the absence of any connecting nexus between
Vijendra Rai in JJ shoot out case and B.N. Rai (or B.M. Rai)
who stayed in the guest house, there is no legal evidence
whatsoever to prove that Vijendra Rai himself was a
terrorist.
It appears that there is some evidence in this case to
show that A-1 had stayed in the NPTC Guest House but there
is no evidence to show that is stay was at the instance of
A-8 S.P. Rai. Hence it is unnecessary to proceed to consider
the next aspect whether A-8 was having any knowledge then
that A-1 was a terrorist.
The result of the above discussion is that A-8 and A-9
cannot be convicted of the offence under Section 3(4) of
TADA.
Turning to the case against A-4 that he had harboured
A-1, A-2 and A-3, we must observe that the only evidence on
record on that score is the statement recorded from those
three accused by the Superintendent of Police. Those
statements are described as confessional statements. To what
extent those confessional statements have involved A-4 need
be considered only if the confession of one accused can be
used against another accused.
Section 15 of the TADA provides that "notwithstanding
anything in the Code or in the Indian Evidence Act ...... a
confession made by a person before a police officer not
lower in rank than a Superintendent of Police ...... 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
conspirator in 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 conspiration" 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
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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-"
The legal presumption linked to an accused vis-a-vis a
confession made by a co-accused had been deleted by
Parliament through Act 43 of 1993 and as a package inserted
the words mentioned above in Section 15.
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 under Section 162 of the Code no statement
made by any person during investigation to a police officer
could be used in a trial except for the purpose of
contradiction. In view of the aforesaid ban imposed by the
legislature Section 15 of the TADA provides an exception to
the ban. But it is well to remember that other confessions
which are admissible even under the Evidence Act could be
used as against a co-accused only upon satisfaction o
certain conditions. such conditions are stipulated in
Section 30 of the Evidence Act, which reads thus:
"When more persons than one are
being tried jointly for the same
offence, and a confession made by
one of such persons affecting
himself and some other of such
persons is proved, the court may
take into consideration such
confession as against such other
person as well as against the
person who makes such confession."
The first condition is that there should be a
confession i.e. inculpatory statement. Any exculpatory
admission is not usable for any purpose whatsoever as
against a co-accused. The second condition is that the maker
of the confession and the co-accused should necessarily have
been tried jointly for the same offence. In other words, if
the co-accused is tried for some other offence, though in
the same trial, the confession made by one is not usable
against the co-accused. Third condition is that the
confession made by one accused should affect himself as well
as the co-accused. In other words, if the confessor absolves
himself from the offence but only involves the co-accused in
the crime, while making the confession, such a confession
cannot be used against the co-accused.
Even if no conditions are satisfied the use of a
confession as against a co-accused is only for a very
limited purpose i.e. the same can be taken into
consideration as against such other person. It is now well
settled that under Section 30 of the Evidence Act the
confession made by one accused is not substantive evidence
against a co-accused. It has only a corroborative value,
(vide Kashmira Singh vs. State of Madhya Pradesh - AIR 1952
SC 159, Nathu vs. State of Uttar Pradesh - AIR 1956 SC 56,
Haricharan Kurmi vs. State of Bihar - AIR 1964 SC 1184)
A confession made admissible under Section 15 of the
TADA can be used as against a co-accused only in the same
conditions as stipulated in Section 30 of the Evidence Act.
In view of the above legal position the confession made
by A-1(Subhash Singh Thakur), A-1(Jaynendra Thakur and A-
3(Shyam Kishore Garikapti) cannot be used against A-
4(Chanderkant Patil), even as for corroborative purposes
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because the former set of accused were not tried for the
offence under Section 3(4) of TADA. So the first condition
set for the in Section 30 of the Evidence Act is non-
existent. 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.
Now we have to consider the case of prosecution that
the police party conducted a raid during the wee hours of
23.7.1993 and rounded up A-1 to A-5 red-handed with illegal
arms and ammunition while they were proceeding in a Toyota
car.
We have to observe, at the outset on this point, that
even if prosecution story is accepted by us and the finding
of the Designated Court is upheld on this point we are
unable to uphold the conviction of A-5 (Paresh Mohan Desai)
under Section 25 of the Arms Act. A-5 was found in
possession of only a knife the length of which is 9.2".
Possession of a knife, if that has to amount to an offence
under the aforesaid provisions, must be of such a knife
which should answer the description specified in the
notification issued under Section 4 of the Arms Act. The
notification which was in force at the relevant time was No.
13/203/78-Home(G). What is prohibited under the notification
is possession of a knife having a length of 7.62 cm. and a
width of 7.2 cm. or above. In the charge framed against A-5
(Paresh Mohan Desai) there is no averment that he possessed
a knife of the above description. Nor is there any
indication in the document evidencing seizure of the knife
regarding its width. In view of the total absence of
anything in the evidence that A-5 possessed a knife of the
description specified in the notification, he would be
entitled to an acquittal of the said offence.
According to the evidence, the police party went to
Gagan Vihar Extension, Vikas Marg, New Delhi in 6 motorcars
and they reached the place by about 3 A.M. and they got
divided themselves into four different squads and remained
at four different spots within the proximity of the iron
gate of the colony. When they spotted the Toyota car moving
out of the colony the police party stopped it before the
vehicle could cross the gate. It was surrounded by the
police personnel and the lethal weapons which were found in
the possession of the miscreants were seized.
PW-1 (Prithvi Singh, Inspector of Crime Branch) has
said in his evidence that the first squad caught hold of A-4
(Chanderkant Patil) and seized a revolver and live
cartridges from him. That version is fully supported by PW-8
(Lalit Kumar, HC) and PW-9 (Rajinder Gautam, Inspector) who
were in that team. the second squad caught hold of A-2 (Bhai
Thakur) and seized one 0.38 pistol and 4 live cartridges
from him. That version is supported, inter alia, by PW-4
(Mehak Sing, SI) and PW-5 (Ashok kumar, HC), who were in
that team.
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
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hold of A-3 (Shyam Kishore Garikapati) and seized a country-
made pistol as well as alive cartridge for him. That version
is spoken to by the aforesaid witnesses besides PW-1
(Prithvi Singh).
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 the 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 taken
into custody. That version is fully supported by the
aforesaid witnesses.
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
purposes of nailing them to a charge under TADA.
Learned counsel, who argued for different accused,
amongst the first five, cited before us a fact which looms
large in all the confessions recorded by PW-45
(Superintendent of Police, Special Task Force of CBI). On
three dates during the second week of August 1993, the
confessional statements of those accused have been recorded
by PW-45. What has been highlighted by the counsel is that
narration of the activities in all the confessional
Statements stopped with 18.7.1993 and none among those
confessors mentioned anything beyond 18.7.1993.
As the first blush, we also felt that the said
circumstance is a formidable one lending credence to the
defence version. But a closer scrutiny of the evidence
dissuaded us from attaching any such significance to the
said circumstance. It cannot be assumed that PW-5
Superintendent of Police was unaware when he recorded the
confessional statement that the police version was in favour
of the arrest of those accused on 23.7.1993. Very probably
the confessors had no significant activity to be narrated
after 18.7.1993 and it cannot be believed that those
confessors were unaware of what happened to themselves
subsequent to that date.
The second point of attach was that the police party
did not examine a single independent witness to support the
case that the 5 accused were rounded up on the early hours
of 23.7.1993, nor did they secure the signature of at least
one such independent person in any of the documents prepared
at the time of seizure of the arms and ammunition.
As a legal proposition it was argued that it would be
unsafe to base a conclusion on the evidence of police
officers alone without being supported by at least one
independent person from the locality. To reinforce the said
contention Shri. V.S.Kotwal, Senior Advocate cited the
decision of this Court in Pradeep Narayan Madqaonkar &
others vs. State of Maharashtra [1995 (4) SCC 255] wherein
want of independent witnesses of the locality rendered
suspicious a raid conducted by the police.
There can be no legal proposition that evidence of
police officers, unless supported by independent witnesses,
is unworthy of acceptance. Non-examination of independent
witness of even presence of such witness during police raid
would cast an added duty on the court to adopt grater care
while scrutinising the evidence of the police officers. If
the evidence 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
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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 of 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 of 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."
In Balbir Singh vs. [1996 (11) SCC 139] 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 vs.
State of Haryana [1992 (4) SCC 662], Sama Alana Abdulla vs.
State of Gujarat [1996 (1) SCC 427], Anil alias Andya
Sadashiv Nandoskar vs. State of Maharashtra [1996 (2) SCC
589], Tahir vs. State (Delhi) [1996 (3) SCC 338].
The factual position is also to be mentioned now. PW-1
Prithvi Singh has said in evidence that the police party
had, in fact, tried to get one or two persons who cam by
that way to remain as witnesses for the action they were
about to take but none of them obliged. We should not forget
that the time of the raid was during the odd hours when
possibly no pedestrian would have been trekking on the road
nor any shopkeeper remaining in his shop nor a hawker moving
around on the pavements.
Learned counsel then pointed out from evidence that the
Daily Dairy which was maintained in the police station
contained entries of all what happened on the early hours of
the crucial date. They are not produced. Counsel, therefore,
argued that an adverse inference can be made from the non-
production of such diaries.
We do not find any force in the said contention No
doubt Daily Diary is a document which is in constant use in
police station. But no prosecution is expected to produce
such diaries as a matter of course in every prosecution case
for supporting the police version. If such diaries are to be
produced by prosecution as a matter of course in every
case, the function of the police station would be greatly
impaired. It is neither desirable nor feasible for the
prosecution to produce such diaries in all cases. Of course
it is open to the defence to move the court for getting down
such diaries if the defence wants to make use of it.
Regarding to the occurrence on the early house of
23.7.1993, we have before us the consistent version of 11
witnesses, of course all of them police officers, who have
participated in the action. To support their version we have
before us in evidence Ext. PW-1/D Rukkha which reached the
police station during the early hours of the same ay itself
which contains a narration of the events which took place at
Gagan Vihar extension Delhi. There is no reason to doubt
that the said Rukkha wold have been concocted subsequently
because an FIR was registered in the same police station the
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strength of the facts revealed in the said Rukkha. The FIR
is (Ext. PW-10/A). We put on record that nobody had argued
before us that the said FIR a subsequent creation or was
ante-dated.
A reference to the evidence of PW-14 (Rajinder Kumar
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 ut 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 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 as actually nabbed by police
19.7.1993 is not a true version.
Thus we can unhesitatingly concur with the finding of
the trial court that the prosecution version regarding the
rounding of A-1 to A-5 during the wee hours of 23.7.1993
with arms and ammunition, is true.
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 acquittal. We therefore, set aside the
conviction and sentence passed on them and acquit them. WE
also set aside the conviction and sentence passed on A-1 to
A-3 under Section 3(5) of TADA and on A-4 under Section
3(4) of TADA. But A-1, A-2, A-3 and A-4 cannot escape
conviction under Section 5 of TAA and Section 25 of the Arms
Act. We confirm their conviction under the said offences.
However, we are not satisfied that the minimum sentence
of imprisonment for 5 years awarded by the trial court to A-
1 to A-4 for the offence under Section 5 to TADA is
commensurate to the gravity of the offence. Perhaps the
trial court would have been persuaded to award that sentence
in view of the fact that those accused were sentenced to
imprisonment under Section 3(5) of TADA. Now that we have
set aside the conviction of those accused of the offence
under Section 3(5) of TADA we think that the sentence of
imprisonment awarded to A-1 to A-4 for the offence under
Section 5 of TADA must be enhanced. We can consider that
aspect only after hearing A-1 to A-4 on the point. Hence we
direct the Registry to serve notice on the counsel for A-1
to A-4 on the proposal to enhance the sentence for the
offence under Section 5 of TADA.