Full Judgment Text
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CASE NO.:
Appeal (crl.) 602 of 2004
PETITIONER:
Vijaykumar Baldev Mishra @ Sharma
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 18/05/2007
BENCH:
Markandey Katju
JUDGMENT:
J U D G M E N T
MARKANDEY KATJU, J.
1. I have perused the judgment of my learned brother Hon’ble S.B.
Sinha, J. in this case. The facts of the case have been narrated in the
judgment of my learned brother and hence I am not repeating the same. I
entirely agree with the reasoning and conclusion of my learned brother.
2. However, there is an important constitutional point which though not
taken in the Criminal Appeal before us, is of such great importance that I
wish to express my opinion on the same.
3. The Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as "The Act") stated initially in Section 1(4) thereof
that the said Act will remain in operation for a period of two years from
24.5.1987, but thereafter by amendments from time to time the period of two
years was extended to four years, then six years and lastly for eight years.
4. Thus Section 1(4) of the Act as it stood ultimately read as follows :
"It shall remain in force for a period of [eight
years] from the 24th day of May, 1987, but its expiry
under the operation of this sub-section shall not affect \026
(a) the previous operation of, or anything
duly done or suffered under this Act
or any rule made thereunder or any
order made under any such rule, or
(b) any right, privilege, obligation or
liability acquired, accrued or incurred
under this Act or any rule made
thereunder or any order made under
any such rule, or
(c) any penalty, forfeiture or punishment
incurred in respect of any offence
under this Act or any contravention of
any rule made under this Act or of
any order made under any such rule,
or
(d) any investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid
and any such investigation, legal proceeding or remedy
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may be instituted, continued or enforced and any such
penalty, forfeiture or punishment may be imposed as if
this Act had not expired."
5. There was no further extension of the period for which the Act
remained in force, and hence the Act automatically came to an end on
24.5.1995.
6. However, Section 1(4) of the Act also stated that the expiry of the
aforesaid period of the Act would not affect any right or liability incurred
when the Act was in force, and legal proceedings can be instituted or
continued as if the Act has not expired, provided the act in question was
committed when the Act was in force. It is under this provision that
prosecutions under TADA have been continued although the life of the Act
has expired.
7. In my opinion the provision that legal proceedings can be instituted or
continued even after the Act has expired, is clearly violative of Article 14 of
the Constitution of India. We may test the constitutional position by taking
a hypothetical case. Supposing a law is made which makes an act
committed by a person a crime on one day, but the same law says that the
same act will not be a crime if committed on the next day. Surely such a law
will be violative of Article 14 unless there is very strong and rational basis
for such classification and differentiation.
8. From the common sense point of view too, it does not stand to reason
that a certain act will be treated as a crime if committed within one time
period, but it will not be a crime if it is committed thereafter.
9. Of course, if there is good rational ground for making such a
differentiation, Article 14 may not be violated but then it will be for the State
Authorities to justify such a classification on some reasonable and rational
basis, failing which it will clearly violate Article 14 of the Constitution.
10. In the present case, Section 1(4) of the Act says that the offence
created by Section 3 of the Act will be punishable as a crime if the act was
committed on or before 24.5.1995, but if the same act was committed after
24.5.1995, it will not be a crime. To my mind this is ex facie violation of
Article 14 of the Constitution and hence Section 1(4) of Act to the extent it
says that acts mentioned in Section 3 committed on or before 24.5.1995 can
still be treated as a crime and punished under the TADA, though the same
act committed after 24.5.1995 cannot, is in my opinion clearly ultra vires
Article 14 and hence is liable to be struck down as unconstitutional.
11. Since this point has not been raised in the appeal I am not giving any
final opinion in the matter, but the point, to my mind, is of such a vital and
wide constitutional importance that I thought it fit to express my opinion on
the same, so that this opinion can be considered in other cases where
prosecutions under TADA are going on or where convictions have been
made in relation to the offences under Section 3 alleged to have been
committed before 24.5.1995.
12. As regards those who have already undergone the entire sentence for
which they were convicted under TADA obviously nothing can be done, but
regarding those who have undergone only part of the sentence or regarding
those who are facing prosecution or investigation under TADA such
prosecution or investigation are liable to be quashed in view of the opinion
expressed above.
13. It is of course made clear that the above opinion has nothing to do
with Article 20(1) of the Constitution, which deals with ex post facto laws.
14. With the above observation the appeal is allowed and the impugned
order is set aside. The appellant is directed to be released forthwith unless
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required in some other case.