see Main articles
here and
here
The Judgment of a two-member Bench of the Honorable Supreme Court of India in the case related to withdrawal of a case under POTA against Uday Pratap Singh and others by the State Government in Uttar Pradesh, is given below:
CASE NO.:
Writ Petition (crl.) 132-134 of 2003
PETITIONER:
S.K. Shukla & Ors
RESPONDENT:
State of U.P. & Ors.
DATE OF JUDGMENT: 10/11/2005
BENCH:
B.N. Agrawal & A.K. Mathur
JUDGMENT:
J U D G M E N T
(with SLP(Crl) No. 1521/2004, T.P.(Crl) Nos. 82-84/2004 &
Crl.A. 1511/2005 @ SLP (Crl) No. 5609/2004)
A.K. MATHUR, J.
All these cases are inter-related and common arguments
were raised, therefore, they are disposed of by this common
order.
Writ Petition Nos 132-134/2003 under Article 32 of the
Constitution of India is directed against the withdrawal of the
POTA order by the State Government dated 29th August 2003
against accused Udai Pratap Singh, Raghuraj Pratap Singh @
Raja Bhaiya & Akshay Pratap Singh @ Gapalji. The Union of
India was also permitted to be impleaded as a party-respondent.
In SLP (Crl) 5609 of 2004, the petitioner has challenged the
order passed by the POTA Review Committee dated 30.4.2004
under Section 60 of the Prevention of Terrorism Act, 2002 (15 of
2002) (hereinafter referred to as 'the POTA'). Leave granted.
In SLP (Crl) 1521 of 2004, the High Court order dated
24.2.2004 was challenged whereby accused Akshay Pratap
Singh @ Gopalji was granted bail in case No.10 of 2003, under
Section 3/4 of POTA, Police Station Kunda, District Pratapgarh,
U.P. on his furnishing a personal bond for Rs.1,00,000/- with two
sureties each in the like amount to the satisfaction of the Special
Judge, designated court, Kanpur.
T.P (Crl) Nos. 82-84/2004 have been filed by the petitioners
apprehending that there is likelihood of miscarriage of justice in
the State of U.P. seeking transfer of cases pending against the
accused persons from the Special Judge, Kanpur Nagar U.P. to
the Designated Court in Delhi
In order to appreciate the controversy involved in the
matter, it will be proper to take the first case i.e. SLP(Crl) 5609 of
2004 whereby the Review Committee reviewed the cases of all
the three respondents i.e. Raghuraj Pratap Singh alias Raja
Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias
Gopalji under Section 3/4 of the POTA Act and directed the State
Government to release all these accused persons and the
proceedings against them shall deem to have been withdrawn
from the date of this direction and they may be released from the
custody forthwith under Section 3/ 4 of the POTA Act by order
dated 30.4.2004. Aggrieved this order, the present petition was
filed by the appellant.
The prosecution case as disclosed in recovery memo
dated 25.1.2003 of 13.45 hrs lodged at P.S. Kunda by
Paramhans Mishra, Inspector In-charge, P.S. Kotwali Kunda that
he along with informant and other police officials raided the
house of Udai Pratap Singh for execution of warrant of arrest in
crime No. 55/1993 under Section 2/3 of the Gangster Act
pending before Special Judge, Allahabad. They entered through
main gate and went inside the Raj Mahal premises where they
found Shri Kesri Nandan, advocate, who told them that he is an
advocate for civil cases of Uday Pratap Singh. They found Uday
Pratap Singh present in Raj Mahal where he was standing with
one piece of AK 56 rife with black colour belt hanging on his
right shoulder. In the rifle, there was triangular sign on the butt
with 56 written in between it, then something was written in
Chinese language and the number was printed 1600232 and the
weapon was in perfect condition and on his shoulder there was
a bag with three pieces of magazines of AK 56 rifle. After
unloading the AK 56 rifle they found 36 bullets. When he was
asked to produce the licence, he could not show anything nor
was he ready to tell them how he had acquired all these items. It
is further alleged that when they entered into his bed room they
found (i) 25 bullets of .75, .65 bores (ii) 16 bullets of 400 NITRO
(iii) 1 bullet of .577 bore (iv) 3 other old rusted bullets which were
not able to read (v) 12 bullets of .405 (vi) 35 bullets of 77 mm and
(vii) 35 bullets which are old, rusted and not readable. After that
they found a square wooden box yellow colored polythene bag
which contained in it about 200 gms of explosive chips and in
gray colour polythene bag there was some suspicious black
power. In a white cotton bag there was blue colour polythene
which contained near about 400 gms suspicious brown colour
powder. In the same bed room in another corner 55 bullets .605
bore and 22 bullets of .22, two pieces of Motorola wireless set.
They further raided the mango gardens of Uday Pratap Singh
from two clues given by Bhole Tewari. On the western direction
of the Raj Mahal Bhadri, at 200 mtrs from the western wall at the
mango gardens of Uday Pratap Singh, the police discovered
freshly dug mud. After digging 3 ft deep with length of 5 ft and
width of 4 ft they discovered three polythene green bags and
they also found (i) one DBBL gun (ii) another DBBL gun .12 bore
(iii) another DBBL gun No.4136 C/1 (iv) another DBBL gun
number destroyed (v) one rifle (vi) one SSBBL gun No.3077-1994
(vii) one SBBL gun number 12194-B.2 (viii) five pieces of SSBBL
guns (ix) two pieces of Mauzre guns (x) two pieces of Muzzle
loading guns (xi) thirteen pieces of swords (xii) two pieces of
Hachet (xiii) two pieces of iron spears (xiv) one cane with
concealed sword (xv) one iron axe with cap and (xvi) one big
knife with handle.
On 26th January, 2003 they recovered one 30 spring field
self loading rifle, one 30 carbine, 11 cartridges of 30 spring field
rifle and 30 cartridges of 30 carbine. These huge catchy of arms
were recovered on the raid by the police on 25/26th January 2003
and, therefore, an order under POTA was passed against all the
three accused namely, Raghuraj Pratap Singh alias Raja Bhaiya,
Udai Pratap Singh and Akshay Pratap Singh alias Gopalji by the
State Government. All this recovery of arms, ammunition and
other weapons were detailed in the order. It was also disclosed
that a conspiracy was hatched by Uday Pratap Singh to cause a
massacre and/or to create terror after killing some VIPs. In this
order it was mentioned that statement of one Shri Rajendra
Yadav was recorded on 30.2.2003 wherein he stated that
Raghuraj Pratap Singh alias Raja Bhaiyya and Akshay Pratap
Singh alias Gopalji have brought AK-47 (56) rifle and given it to
Udai Pratap Singh. It was also alleged that after this statement
he was murdered on 3.3.2003 and the father of the deceased
filed an FIR No.16 of 2003 under Section 302/34/506/120B IPC in
P.S. Kunda, Distt. Pratapgarh for causing the murder under a
conspiracy hatched by Raghuraj Pratap Singh, Akshay Pratap
Singh and Udai Pratap Singh. It was alleged that these persons
kept the huge arms and ammunition including AK-56/AK-47 in
their house and whoever speaks against them meet the same
fate. It was also alleged that they propose to take some action
against Chief Minister Mayawati. It was also mentioned in the
order that the said AK-56 rifle was brought by Raghuraj Pratap
Singh in presence of Akshay Pratap Singh and was given to Shri
Udai Pratap Singh. On the basis of this, State Government
granted permission to launch prosecution under Section 50 of
the POTA Act to prosecute the accused persons namely,
Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and
Akshay Pratap Singh alias Gopalji under Sections 3(2), 3(3), 3(7)
and 4 of POTA Act by order dated 5.5.2003. The petitioner has
given details of the large number of criminal cases pending
against these persons. Shri Raghuraj Pratap Singh is said to be
involved in 37 cases for various offence under Sections 302,
307,147, 148, 120-B, 320 IPC. The petitioner has also given a
chart of the cases pending against Uday Pratap Singh for
various offences under Sections 302, 307, 397 etc. totalling
around 50 cases. The petitioner has also given a chart
mentioning the cases against Akshay Pratap Singh for the
offence under Sections 302, 307 & the Gangster Act and many
other cases under Indian Penal Code totalling around 32 cases.
After this order was passed by the State Government against the
accused persons political events took a turn. A new regime
came in power. This regime after resuming the power revoked
the order by an order dated 29.8.2003. This order was
challenged by the petitioner in the Writ Petition (Crl) 132-134 of
2003 under Article 32 of the Constitution before this Court.
Meanwhile the accused also filed a review petition under
Section 60 of POTA before the Reviewing Committee appointed
under the POTA Act. They also filed petition before the Central
Government. The Reviewing Committee headed by Justice
Naseem Uddin and Rajendra Kumar Dubey, ex Commissioner in
U.P. reviewed the matter and held that since there is no case
against the applicants under the POTA and no prima facie case
is found under Sections 3 and 4 of the POTA Act, therefore,
there is no basis for proceeding against accused under POTA
and the State of U.P. was directed to release all the three
applicants. This is the subject matter of the Special Leave
Petition (Crl) 5069 of 2004. All the arguments were directed on
whether the order passed by the Review Committee is
sustainable in law or not. In fact, before this order of the Review
Committee the State Government has already passed the order
for withdrawing the cases against all the accused under the
POTA Act by order dated 29.8.2003 but since the order was
passed by the Review Committee therefore we shall now deal
with this petition first that whether this order of the Review
Committee can be sustained or not.
Before we address ourselves and examine the validity of
this order passed by the Review Committee under Section 60 of
the POTA Act, it will be relevant to review the necessary
provisions of the POTA Act. The said Act i.e Prevention of
Terrorism Act, 2002 was promulgated by the Parliament with a
view to prevent terrorists activities and the matters connected
therewith. The terrorist act has been defined in Section 2(1)(g)
which reads as under:
"2(1)(g) : "Terrorist Act" has the meaning
assigned to it in sub-section (1) of Section 3 and
the expression "terrorist" shall be construed
accordingly;"
Section 3 reads as under:
"3.(1) Whoever,
(a) with intent to threaten the unity, integrity, security or
sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using bombs,
dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances
(whether biological or otherwise) of a hazardous nature or by
any other means whatsoever, in such a manner as to cause, or
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 causes damage or destruction of any
property or equipment used or intended to be used for the
defence of India or in connection with any other purposes of
the Government of India, any State Government or any of their
agencies, 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;
(b) is or continues to be a member of an association declared
unlawful under the Unlawful Activities (Prevention) Act, 1967
or voluntarily does an act aiding or promoting in any manner
the objects of such association and in either case is in
possession of any unlicensed firearms, ammunition, explosive
or other instrument or substance capable of causing mass
destruction and commits any act resulting in loss of human
life or grievous injury to any person or causes significant
damage to any property,
commits a terrorist act.
Explanation:- For the purposes of this sub-section, "a terrorist
act" shall include the act of raising funds intended for the
purpose of terrorism.
(2) Whoever commits a terrorist act, shall:-
(a) if such act has resulted in the death of any
person, be punishable with death or
imprisonment for life and shall also be liable to
fine:
(b) in any other case, 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.
(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.
(4) Whoever voluntarily harbours or conceals, or attempts to
harbour or conceal any person knowing that such person is a
terrorist shall be punishable with imprisonment for a term
which shall not be less than three years but which may extend
to imprisonment for life and shall also be liable to fine:
Provided that this sub-section shall not apply to any case in
which the harbour or concealment is by the husband or wife of
the offender.
(5) Any person who is a member of a terrorist gang or a
terrorist organization, which is involved in terrorists acts, shall
be punishable with imprisonment for a term which may extend
to imprisonment for life or with fine which may extend to
rupees ten lakh or with both.
Explanation: For the purposes of this sub-section, "terrorist
organization" means an organization which is concerned with
or involved in terrorism.
(6) Whoever knowingly holds any property derived or obtained
from commission of any terrorist act or has been acquired
through the terrorist funds shall be punishable with
imprisonment for a term which may extend to imprisonment
for life or with fine which may extend to rupees ten lakh or with
both.
(7) Whoever threatens any person who is a witness or any
other person in whom such witness may be interested, with
violence, or wrongfully restrains or confines the witness, or
any other person in whom the witness may be interested, or
does any other unlawful act with the said intent, shall be
punishable with imprisonment which may extend to three
years and fine."
Section 4 reads as under:
"Where any person is in unauthorized possession of any:-
(a) arms or ammunition specified in columns (2)
and (3) of Category I or Category III(a) of Schedule
1 to the Arms Rules, 1962, in a notified area,
(b) bombs, dynamite or hazardous explosive
substances or other lethal weapons capable of
mass destruction or biological or chemical
substances of warfare in any area, whether
notified or not,
he shall be guilty of terrorist act notwithstanding anything
contained in any other law for the time being in force, and be
punishable with imprisonment for a term which may extend to
imprisonment for life or with fine which may extend to rupees
ten lakh or with both.
Explanation: in this section, "notified area" means such area
as the State Government may, by notification in the Official
Gazette, specify."
Section 60 lays down that the Central Government and the
State Government constituting a Review Committing for
purposes of reviewing the cases. Section 60 reads as under:
"60(1) The Central Government and each State Government
shall, whenever necessary, constitute one or more Review
Committees for the purposes of this Act.
(2) Every such Committee shall consist of a Chairperson and
such other members not exceeding three and possessing
such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is,
or has been, a Judge of a High Court, who shall be appointed
by the Central Government, or as the case may be, the State
Government, so however, that the concurrence of the Chief
Justice of the High Court shall be obtained in the case of a
sitting Judge:
Provided that in the case of a Union territory, the appointment
of a person who is a Judge of the High Court of a State shall
be made as a Chairperson with the concurrence of the Chief
Justice of the concerned High Court.
4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003
(4) Without prejudice to the other provisions of this Act, any
Review Committee constituted under sub-section (1) shall, on
an application by any aggrieved person, review whether there
is a prima facie case for proceeding against the accused under
this Act and issue directions accordingly.
(5) Any direction issued under sub-section (4):
(i) by the Review Committee constituted by the
Central Government, shall be binding on the
Central Government, the State Government and
the police officer investigating the offence; and
(ii) by the Review Committee constituted by the
State Government, shall be binding on the State
Government and the police officer investigating
the offence.
(6) Where the reviews under sub-section (4) relating to the
same offence under this Act, have been made by a Review
Committee constituted by the Central Government and a
Review committee constituted by the State Government, under
sub-section (1), any direction issued by the Review Committee
constituted by the Central Government shall prevail.
(7) Where any Review Committee constituted under sub-
section (1) is of opinion that there is no prima face case for
proceeding against the accused and issues directions under
sub-section (4), then, the proceedings pending against the
accused shall be deemed to have been withdrawn from the
date of such direction."
A perusal of these relevant Sections shows that Section 3
deals with terrorist activities and we are specially concerned
with sub-section (3) which, inter alia, states that 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. Therefore the ambit of Terrorist Act is very
wide and in this any person who commits or advocate, abets,
advises or incites or knowingly facilitates the commission or
involved in preparation to a terrorist act can be roped in under
the wide definition of the Terrorist Act. In fact, the sub-section
(1) of Section 3 clearly says that whoever with intent to threaten
the unity, integrity, security or sovereignty of India or to strike
terror in the people or a section of the people does any act or
thing by using bombs, dynamite or other explosive substances
or inflammable substances or firearms or lethal weapons or
poisons or noxious gases or other chemicals or by any other
substances of a hazardous nature or by any other means
whatsoever, in such manner as to cause death 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 causes damage or destruction of
any property or equipment used or intended to be used for the
defence of India or in connection with any other purposes of the
Government of India, any State Government or any of their
agencies, or detains any persons 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. That shows that if
any person with the help of any bombs, dynamite or explosive
substance or by fire arm or lethal weapons terrorize people or
any section of people then such action will amount to a terrorist
activity and the preparation thereof will also be punishable.
Therefore, the question before us is whether the possession of
the weapons by the accused persons in their houses were lethal
weapons and the possession of the explosive substances were
preparation of the terrorist act or not. Secondly, whether
unauthorized possession under Section 4(a) of the Arms Act and
ammunition specified in column 2 and 3 and category (1) or
category 3(a) of Schedule 1 to the Arms Act, 1959 in notified
area would attract the wrath of this provision. Likewise, whether
possession of hazardous explosive or lethal weapons capable of
mass destruction by these accused persons can be prosecuted
or not under Section 4(b) of the Act.
Learned counsel for the appellant has seriously
challenged the order passed by Review Committee. Learned
counsel for the petitioner submitted that in fact the Review
Committee did not appreciate the scope of Section 4 of the Act
properly. He submitted that though the cases of these accused
persons are covered under Section 4(a) because of unauthorized
possession of arms and ammunition, but in case it is not
covered under Section 4(a), then alternatively it is squarely
covered under Section 4(b) because there is no need to notify
the area under Section 4(b) as required under Section 4(a) of the
Act.
Shri Shanti Bhushan, learned senior counsel appearing for
the State supported the order of the Review Committee. Shri
Rao, learned senior counsel appearing for the accused
respondents also strenuously urged that the order passed by
the Review Committee is correct and the Review Committee has
not committed any irregularity or illegality.
Section 4 has already reproduced above has two parts, one
with the possession of the arms and ammunition specified in
column 2 and 3 of the category 1 or category 3(a) of Schedule 1
of the Arms Rules, 1962, the unauthorized possession of them in
notified area is punishable. Now the category 1 of Schedule
under the Arms Rules, 1962 read with category 3(a) of the
Schedule 1 reads as under:
SCHEDULE I
(See rule 3)
Category
Arms
Ammunition
1
2
3
I
(a) Prohibited arms as defined in
Section 2 (1) (i) and such other arms as
the Central Government, may, by
notification in the Official Gazette,
specify to be prohibited arms.
Prohibited ammunition as defined in
Section 2 (1) (h) and such other
articles as the Central Government
may, by notification in the Official
Gazette, specify to be prohibited
ammunition.
(b) Semi-automatic fire-arms, other
than those included in categories 1 (c)
and III (a), smooth bore guns having
barrel of less than 29" in length.
Ammunition for arms of category I
(b).
(c) Blot action or semi-automatic rifles
of ".303" or 7.62 mm. bore or any
other bore which can chamber and fire
service ammunition of .303" or 7.62
mm. calibre; muskets of .410" bore of
any other bore which can fire .410"
musket ammunition ; pistols, revolvers
or carbines of any bore which can
chamber .380" or .455" rimmed
cartridges or service 9 mm. or ".445"
rimless cartridges.
Ammunition for fire-arms of cate-
gory I (c).
(d) Accessories for any fire-arms
designed or adapted to diminish the
noise or flash caused by the firing
thereof.
Nil.
II
Machinery for manufacture or proof-
testing of a fire-arm.
Machinery for manufacturing
ammunition.
III
Fire-arms other than those in
categories I, II and IV, namely :
Ammunition for fire-arms other
than those in categories I, II and IV,
namely :
(a) Revolvers and pistols.
Ammunition for fire-arms of cate-
gory III (a).
(b) Breech- loading rifles other than
.22 bore rifles mentioned in category
III (c) below.
Ammunition for fire-arms of cate-
gory III (b).
(c) 22 bore (low velocity) rifles using
rimfire cartridges, breech-loading
smooth-bore guns and air-rifles.
Ammunition for fire-arms of cate-
gory III (c).
(d) Air-guns and muzzle-loading guns.
Ammunition for fire-arms of cate-
gory III(d).
IV
Curios and historical weapons, other
than those excluded under Section 45
(c).
Curios and historical ammunition.
V
Arms other than fire-arms : Sharp-
edged and deadly weapons, namely-
swords(including sword-stick),
daggers, bayonets, spears (including
lances and javelins; battle-axes, knives
(including kirrpans and khukries) and
other such weapons with blades longer
than 9" or wider than 2" other than
those designed for domestic,
agricultural, scientific or industrial
purpose, steel batton; "Zipo" and
other such weapons called "life pre-
serves"; machinery for making arms,
other than category II; and any other
arms which the Central Government
may notify under Section 4.
Nil.
VI
VI (a) Articles containing explosives
or fulminating material; fuses and
friction
tubes other than blank fire
cartridges.
VI (b) Ingredients as defined in
Section 2 (b) (VII).
Note.
Parts and accessories of any arms or ammunition and charges for fire-arms and
accessories for charges belong to the same category as the arms or ammunition.
The second category i.e. Section 4(b) which says that the
unauthorized possession of bombs, dynamites, hazardous
explosive substances or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances of
a hazardous nature capable of mass destruction whether
notified or not notified. Therefore, the possession of bombs,
dynamite or hazardous explosive substance or lethal weapons
in an unauthorized manner is punishable in itself and need not
be in notified area. Therefore, Section 4(a) and (b), the
possession of the arms mentioned in clause (a), unauthorized
possession thereof in notified area is prohibited whereas in
Section 4(b) any bomb, dynamite, hazardous explosive or lethal
weapon capable of a mass destruction is punishable
irrespective of the fact that the area is notified or not notified.
The qualification of the notified area is not required in Section
4(b).
So far as Section 4(a) is concerned, the Review Committee
had discussed the matter in greater details and it was found that
the notification under Section 4(a) was not issued prior to the
recovery of the arms and ammunition at the house of Udai
Pratap Singh on 23.1.2003. It was submitted that the raid in the
house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap
Singh and Akshay Pratap Singh alias Gopalji were politically
motivated as these persons did not support the Government of
Mayawati, the raid was conducted and POTA cases were
launched against them. When the new Government came
headed by Chief Minister Mulayam Singh Yadav then this order
was revoked under POTA as Raghuraj Pratap Singh supported
this Government. We are not concerned with the political
overtone of the matter. We are examining the matter purely from
the legal point of view. The question before us is that on the
relevant date whether the whole area of Uttar Pradesh was
notified area or not under Section 4(a) of the Act. Much
argument was addressed in this case and the original records of
the Secretariat and of the Government Press was placed before
us for our perusal. It may also be relevant to mention here that a
committee was appointed on the complaint made by some of the
legislators that the raid at the house of Udai Pratap Singh was
made prior to issue of the notification of the notified area. The
committee after considering full enquiry found that notification
of notified area was promulgated on 29.1.2003 and it was
communicated to the district on 31.3.2003 and it reached them
thereafter. Since this finding was seriously debated before us
also, therefore we perused the report of the committee as well,
we called the original record to satisfy ourselves when exactly
was notification issued. After going through the note sheet of
the Secretarial file as well as the record of the Government
printing press, Lucknow, we are satisfied that in fact the
notification declaring whole of State of Uttar Pradesh as a
notified area was not published on 23.1.2003. But the decision
on the note-sheet was taken on 22.1.2003 and a communication
was sent to the Government Press for publication of it on
23.1.2003 but in fact it was published as per the record of the
Government Press on 29.1.2003 though it was dated notification
dated 23.1.2003. Therefore after close scrutiny of the records of
the Government Secretariat's files as well as original registers of
the Government Press, we are of the opinion that the view taken
by the Review Committee to this extent is correct that the whole
area was notified on 29.1.2003 only and not on 23.1.2003 - the
date of the notification. The requisition reached the Government
Press for publication 5.30 on 27.1.2003 and it was published and
ready for dispatch on 29.1.2003 and accordingly it was
dispatched to the Home Department on 29.1.2003. Therefore,
from these facts it is clear that the finding accorded by the
Review Committee that the notification notifying the State of
U.P. as a notified area under Section 4(a) was published in the
Extra Ordinary Gazette of U.P. on 29.1.2003 and it was
dispatched thereafter to all the districts magistrates. Therefore,
it became effective from the date of its publication. Normally
under the State General Clause Act, an Act comes into force on
the date when the assent of the Governor or the President as the
case may be, is first published in the official gazette of the State.
Therefore, publication in the gazette is essential as it affects the
rights of the public. Since this prohibitory notification notifying
that the possession of certain kinds of arms in the notified area
is prohibited, therefore, it would come into effect from the date
when it was published in the official gazette.
Therefore, so far as this part of the finding given by the
Review Committee that notification under Section 4(a) had not
come into existence at the time when the raid at the premises of
Udai Pratap Singh was conducted, this finding of the POTA
Review Committee is correct. As a result of this finding so far
as charge under Section 4(a) cannot be sustained.
Now, coming to alternative submission of the learned
counsel that Section 4(b) where unauthorized possession of the
bombs, dynamites or hazardous explosive substance or lethal
weapons capable of mass destruction is concerned, in that case
the area need not be notified. The unauthorized possession
thereof itself has been found to be punishable under this
Section. Learned counsel submitted that this aspect seems to
have been completely missed by the Review Committee. The
Review Committee only concentrated with regard to the
question of Section 4(a), but did not examine the matter with
reference to sub-section (b) of Section 4 of the Act. The two
expressions which appear in Section 4(b) are relevant for our
purposes i.e. the possession of "hazardous explosive
substance" or "lethal weapons capable of mass destruction" .
Learned counsel for the petitioner has submitted that the
hazardous explosive substances were recovered from the house
of Udai Pratap Singh cannot be dismissed as an explosive of low
intensity and in that connection learned counsel has invited our
attention to the expression hazardous and also invited our
attention to the findings given by the forensic experts. The
explosive substances recovered were sent for Forensic Science
Laboratory, U.P. Agra and Forensic Science Laboratory in their
report has observed as under:
"On the analysis explosive substances Nitrate,
Sulpher, Potassium and Charcoal were found in
the Exhibit. Organic chemical and DLC method
has been used."
Our attention was also invited to the observation of the
bomb disposal/disbursement certificate it was mentioned that
'low intensify'. Therefore the question is whether this explosive
can be said to be as hazardous substance or not. Firstly, it is
unlikely that a law abiding citizen will keep such quantity of the
explosive at his house. It is not an explosive for purpose of
firecrackers. In the light of the facts mentioned above, keeping
of such explosive at their house does not show that it was
meant for a bonafide purpose. The question is whether this
substance is hazardous in nature or not. The very fact of
keeping such huge quantity of explosive in house is on the face
of it is a hazardous and it is not kept normally by a person
unless who deals in explosive with authorized licence for that
purpose. The possession of such explosive without any
authorized licence is a serious matter. Though, it is dealt
separately because the accused has already been charged
under the Explosive Act. But in this present context can such
unauthorized possession by a person can be said to be a
bonafide, is it not a hazardous or injurious to the public at large?
The hazardous has been defined in Collins Cobuild English
Language Dictionary as "something that is hazardous is
dangerous, especially to people's health or safety. The
hazardous has also been defined in the New Oxford Dictionary
of English as "Risky; dangerous". Aiyar's Advanced Law
Lexicon at page 826 defines 'Hazardous substance' as :
"A solid waste, or combination of solid wastes
which because of its quantity, concentration or
physical, chemical or infectious characteristics may
cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or
incapacitating reversible, illness or pose a
substantial present or potential hazard to human
health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise
managed."
The explosive substance has also been defined in Section
2 of the Explosive Substance Act, 1908 which reads as under:
"2. In this Act the expression "Explosive
Substance" shall be deemed to include any
materials for making any explosive substance;
also any apparatus, machine, implement or
material used, or intended to be used, or adapted
for causing, or aiding in causing, any explosion in
or with any explosive substances; also any part of
any such apparatus, machine or implement."
Therefore considering the hazardous substance under
Section 4(b) mean that possession of it by any person be it
notified area or otherwise is also punishable under the Act.
Learned Counsel Shri Shanti Bhushan and Shri Rao tried
to play it down that as per the finding of the bomb demolishing
squad it is of low intensity and cannot fall in category of
hazardous substance. We regret, we cannot accept their
submission. This explosive is capable of creating a havoc if it is
used for preparing a bomb, it is capable of mass destruction.
Any person in this background possessing this hazardous
explosive substance cannot be credited to have it for bonafide
purpose. Therefore, the fact that hazardous substance was
found at the house of Udai Pratap Singh clearly shows that the
case is covered by Section 4(b) and it cannot be played down
simply because it has been reported by the bomb demolishing
squad that it is of low intensity. This explosive substance is
certainly hazardous and is capable of being used for preparation
of bomb or other explosive material for scaring the people or for
causing mass destruction be it in terms of the human beings or
any building or otherwise. This aspect of the matter seems to
have not been adverted by the Review Committee.
Similarly, learned counsel for the appellant has also
placed much emphasis on the expression "other lethal
weapons". AK-56 is a weapon of such a mass destruction that
if it is fired then it can at a time kill number of persons because
of his lethal potentiality. The expression "lethal" has also been
defined in Aiyar's Advanced Law Lexicon which reads as under:
"Lethal weapon. A deadly weapon. The term "lethal weapons"
means deadly weapons. "Guns, Swords, pistols, knives, and
the like are lethal weapons as matter of law, when used within
striking distance of the party assaulted. Others are lethal or
not according to their capability of producing death or great
bodily harm in t he manner in which they are used."
A lethal weapon is a weapon capable of causing an injury, and
if it is barreled and if a shot, bullet, or other missile can be
discharged from it, it is a firearm. A signal pistol firing a
cartridge with explosive ballistic and containing a
phosphorous and magnesium flare is a lethal weapon
To give 'legal' is natural meaning, such a weapon should be
proved to be one capable of causing injuries of a more than
trivial nature and of a kind which it might reasonably be
expected could lead to death."
Stroud's Judicial Dictionary of Words & Phrases defines
'lethal weapon' as under:
"A lethal weapon is a weapon capable of causing an injury,
and if it is barreled and if a shot, bullet, or other missile can be
discharged from it, it is a firearm. A signal pistol firing a
cartridge with explosive ballistite and containing a
phosphorous and magnesium flare is a lethal weapon".
AK-56 is a very dangerous weapon and it is used in the
warfare as well as in terrorist activities very frequently. The
possession of which in an unauthorized manner is itself is an
offence under Section 4(b) of the Act. Learned counsel has also
brought to our notice the potentiality of creating mass
destruction by a weapon like AK-56 and invited our attention to
the literature of the AK-47 and AK-56, AK-56 is, in fact, the
improved version of AK-47. AK-47 literature which has been
brought to our notice reads as under:
"AK-47.net: AK-47:- The AK-47 was designed by Mikhail
Timofeyevich Kalashnikov as a replacement for the SKS and
as a rifle that could be used by Soviet tank crews. In 1946,
while working at the Kovrov weapons plant, Kalashnikov
began work on the AK-47. The AK-47 was accepted as the
standard rifle for the Soviet Army in 1949 and retained that
status until it was succeeded by the AKM. To this day
between 30 and 50 million copies and variations of the AK-47
have been produced world wide, making it the most widely
used rifle in the world.
The AK-47 is chambered in 7.62X39 and features hardwood
furniture with a fixed stock. The AK-47 has a 16 inch barrel
with a muzzle nut to protect the threads. The AK-47 features a
stamped receiver with a non ribbed cover plate and magazine.
The rifle can be fired in two different firing modes; semi and
full auto. The AK-47 has a 800 meter leaf sight that is only
adjustable for range. All windage adjustments must be made
by using the front sight. The AK-47 weighs 4,300 g and has a
rat e of fire of 600rpm. The rifle will accept most synthetic and
metal magazines, generally 30 rounds in capacity. The rifles
effective killing range is 1,500 meters, and is generally not
used for more than 300 meters. The original AK-47 was not
outfitted for the use of a bayonet, however the design was
changed and a bayonet was added. The AK-47 also features a
hollow compartment in the buttstock which was used to keep
the cleaning kit."
(Source of information is www.ak-47.net/ak47/akru/ak47.html)
AK-56 has the same features except some minor
improvement on it, reads as under:
"Caliber: 7.62X39
Action: Gas operated, rotating bolt
Overall length: 874 mm
Weight: 3.80 kg.
Magazine capacity: 30 rounds
The type 56 assault rifle was adopted by PLA in 1956, along
with Type 56 carbine (which was a licence built Soviet SSKS
copy). The type 56 assault rifle was, in turn, also a licensed
copy of the Soviet AK-47 assault rifle, with minor
modifications.
Type 56 is a gas operated, selective fire weapon. The receiver
is machined from steel, the two lugged bolt locks into receiver
walls. Type 56 ha AK-47 style controls with reciprocating
charging handle and massive safety-fire selector lever at the
right side of the receiver. The furniture was made from wood,
and compact version with underfolding metallic buttstock was
also available. The only visible difference from Soviet AK-47 is
a permanently attached spike beyonet, which folds under the
barrel when not in use."
The design features has been quoted from the Janes
Information Group reads as under:
"Type 56 basic version with a fixed wooden stock, Type 56-1
with a vertically folding metal stock, and Type 56-II with a
horizontally folding metal stock. Except for the differences in
the stock and the lack of a tool kit with the basic variant, the
two versions with folding stock are identical to the basic
variant.
The Type 56 is such a reliable weapon that it can function
normally after total immersion in mud and water. The fully
chromed barrel ensures effective operation even at very low
temperatures. Unlike the Aks, the Type 56 is fixed with a
foldable bayonet, but the two later version versions have no
bayonet.
All Type 56 assault rifles fire in either semiautomatic or
automatic mode and have an effective range of about 300 m.
At full cyclic rate, they can fire about 600 rounds per minute
semiautomatic. Both the Type 56-I and Type 56-II can mount a
grenade launcher."
The above potentiality of AK-56 is capable of causing mass
destruction. It fires about 600 rounds per minutes, it means 600
bullets if hit all the 600 targets, it can lead to a mass destruction.
Therefore, the possession of such unauthorized weapon is
dangerous and is capable of mass destruction. It is a lethal
weapon capable of mass destruction and unauthorized
possession thereof is itself punishable. This aspect was also
not been adverted by the Review Committee. The Review
Committee only directed that an unauthorized possession of the
weapons which have been specified in column 2 and 3 of
category 1 or category 3(a) of Schedule 1 to the Arms Rules
possession of it in the notified area is punishable. But if at the
same time one of the weapons falls in the category of Section
4(b), then it does not mean that since it falls in category 4(a), it
stands excluded from category of Section 4(b). If the weapon
falls in the category of Section 4(b) also under the head 'lethal
weapon', then irrespective of the fact that it falls in the category
(a) will not be excluded from category of Section 4(b). We
cannot read both the provisions of clause (a) and (b) to be of
exclusive of each other. Both the provisions have to be read
harmoniously. If the weapon which is specified in clause (a) is
equally covered under clause (b) under the heading of 'lethal
weapon', then it would not mean that it shall stand excluded
from Section 4(b). We have to keep in view the purpose for
which this Act was enacted i.e. prevention of the terrorists
activities and we cannot interpret provisions of Section 4(a) and
(b) to be exclusive of each other [Ref : 2005 (6) SCALE 177]. If
the weapons enumerated in clause (a) are also covered in clause
(b), then it does not go out of the net of clause (b). This aspect
was not addressed by the Review Committee at all. The Review
Committee put a complete gloss over possession of the
explosive substance, that it is not a hazardous or capable of
mass destruction because of its low intensity.
Secondly, the Review Committee has also has entered into
the merit of the matter that accused persons Raghuraj Pratap
Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap
Singh alias Gopalji cannot be connected with the recovery of
these catchy of arms. The role of the Review Committee is very
limited and the Review Committee has to see a prima facie case
and cannot enter into the merit that whether ultimately the
conviction will be entailed or not or the evidence is so weak to
connect the other accused persons. The role given to the
Review Committee under sub-section (4) of Section 60 is very
limited and it has only to see whether there is a prima facie case
for proceeding against the accused under the Act or not. The
Review Committee has traveled beyond its scope, the
sufficiency of evidence cannot be gone into by the Review
Committee. It is also not the job of the Review Committee
whether confession is admissible or not. Role assigned to
Review Committee is very limited and if the prima facie case
connects the accused on the basis of the material with the
prosecution then it is not for the Review Committee to dilate on
that as if they are trying the cases under the Act. As we have
already mentioned above that we need not enter into the political
controversy that whether first order passed was politically
motivated or the second order passed was also equally
politically motivated by other party in power, we do not want to
go into these questions. The use of the Act for personal benefit
of the political parties has to be condemned in no uncertain
terms. This Act cannot be used for the political ends; it is meant
for the benefit of the nation so that the terrorists activities do not
disturb the sovereignty or integrity of the nation. So far as this
case is concerned, we are of the opinion that there is prima facie
case for prosecuting the accused persons. These accused
persons were charged under Section 3(3) read with Section 4
(a)(b) of the Act. But so far as Section 4(a) is concerned, for
reasons mentioned above, it cannot proceed now. But it can
proceed so far as under Section 3(3) & Section 4(b) of the Act is
concerned along with Arms Act & Explosives Act. Therefore,
we allow this appeal in part. We set aside the order of the
Review Committee and hold that the respondents can be
prosecuted under Section 3(3) and Section 4(b) of the Act and
other provisions of the Explosive and Arms Act. The accused,
Mr. Udai Pratap Singh and Raghuraj Pratap Singh alias Raja
Bhaiya may surrender before the Judge, Designated Court,
under POTA Act/Sessions Judge, Kanpur Nagar within a week
and apply for bail. In case they fail to appear before the Judge,
the Judge, Designated Court under POTA Act, Kanpur Nagar get
them arrested. So far as Akshay Pratap Singh is concerned,
as he is already on bail, he need not to surrender. However, any
observation made in this order will not prejudice their trial.
SLP(Crl) 1521 of 2004
This petition is directed against the order passed by the
High Court granting the bail. By this petition, the petitioner has
challenged the order passed by the High Court of Judicature,
Allahabad releasing Akshay Pratap Singh @ Gopalji on bail.
Since the bail has already been granted and he was in detention
for a long time, we do not propose to interfere with the bail
order, but observation made by the learned Judges in the order
cannot be sustained as it is contrary to our finding. Therefore,
SLP(Crl) 1521 of 2004 is dismissed.
Writ Petition (Crl) 132-134 of 2003
This petition is filed against the order passed by the State
Government dated 29.8.2003 whereby public prosecutor was
directed to withdraw the POTA cases against the accused
persons. An application was moved by public prosecutor for
withdrawal of theses cases before Special Judge, though no
order was passed permitting withdrawal of these cases.
However, in view of our finding in SLP (Crl) 5609 of 2004, we
cannot affirm the order of the State Government for withdrawal
of these cases and consequential application made by the public
prosecutor for withdrawal of these cases. The order passed by
the Government dated 29.8.2003 as well as application moved by
the special public prosecutor before the Special Judge, Kanpur
Nagar cannot be sustained and accordingly the order passed by
the State Government and the application moved by the special
public prosecutor before the Special Judge at Kanpur, both are
rejected. In this connection our attention was invited to 1983(1)
SCC 438, 1980(3) SCC 435, 1996(2) SCC 610, 2002(3) SCC 510. In
these cases it has been laid down that the public prosecutor has
to shoulder a greater responsibility for withdrawal of the cases
under Section 321 Cr.P.C. In Sheonandan Paswan vs. State of
Bihar and others 1983 (1) SCC 438, it was held, that the settled
law laid down by the Supreme Court has been that the withdrawal
from the prosecution is an executive function of the Public
Prosecutor and the ultimate decision to withdraw from the
prosecution is his. Before an application is made under Section 321,
the Public Prosecutor has to apply his mind to the facts of the case
independently without being subject to any outside influence. The
Government may suggest to the Public Prosecutor that a particular
case may not be proceeded with, but nobody can compel him to do
so. However, Section 321 of the Code does not lay any bar on the
Public Prosecutor to receive any instruction from the Government
before he files an application under that section. If the Public
Prosecutor received such instructions, he cannot be said to act
extraneous influence. On the contrary, the Public Prosecutor cannot
file an application for withdrawal of a case on his own without
instruction from the Government, since a Public Prosecutor cannot
conduct a case absolutely on his own, or contrary to the instruction
of his client, namely, the Government. Unlike the Judge, the Public
Prosecutor is not an absolutely independent officer. He is appointed
by the government for conducting in court any prosecution or other
proceedings on behalf of the Government concerned. So there is the
relationship of counsel and client between the Public Prosecutor and
the Government. If the Government gives instructions to a Public
Prosecutor to withdraw from the prosecution of a case, the latter after
applying his mind to the facts of the case may either agree with
instructions and file a petition stating grounds of withdrawal or
disagree therewith having found a good case for prosecution and
refuse to file the withdrawal petition. In the latter event the Public
Prosecutor will have to return the brief and perhaps to resign, for, it is
the Government, not the Public Prosecutor, who is in the know of
larger interest of the State". The Public Prosecutor cannot act like
a post box or act on the dictate of the State Governments. He
has to act objectively as he is also an officer of the Court. At the
same time court is also not bound by that. The courts are also
free to assess whether the prima face case is made or not. The
court, if satisfied, can also reject the prayer. However in the
present case we have examined the matter and found that there
is a prima facie case to proceed against the accused persons
under Section 4(b) of the Act and other provisions of the
Explosive or Arms Act, therefore, the sanction granted by the
Government and application moved by public prosecutor for
withdrawal of the cases cannot be sustained. Hence writ
petition Nos.132-134 of 2004 is accordingly allowed and the
order of the State Government dated 29.8.2003 withdrawing the
cases against the accused persons is quashed, likewise
direction to the public prosecutor for withdrawing the cases
from the Court.
Transfer Petition No.82-84 of 2004
This petition relates to transfer of the cases from State of
U.P. to any other court under Section 406 Cr.P.C. 1993 in
criminal case No.3/2003 in crime case No.10/03 under Sections 3
& 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj
Pratap Singh @ Raja Bhaiya and Akshya Pratap Singh @ Gopalji
pending before the Designated Court under POTA at Kanpur to
the Designated Court under POTA at Delhi or before any other
Special Judge at Delhi.
Likewise, crime case Nos. 113/2002 and 209/2002 under
Sections 2/3 of U.P. Gangster and Anti-social Activities
(Prevention) Act, 1986 titled as State vs Udai Pratap Singh,
Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap
Singh @ Gopalji pending in the court of Special Judge (Gangster
Act), Allahabad, U.P. to the court of Special Judge at Delhi or to
any other court at Delhi.
The petitioner has stated that there will be no chance of fair
trial in the State of U.P. as most of the witnesses are afraid to
speak against the respondents and even one Shri Rajender
Yadav was killed as he deposed against these persons. It was
also mentioned that the State Government is not serious. The
State Government has already withdrawn the POTA cases
against the accused persons and directed the public prosecutor
to withdraw these cases. In this background, there is no
likelihood of fair trial in the State of U.P. The respondents failed
to file counter affidavit, but an affidavit has been filed by one
Dinesh Priyadarshi on behalf of respondents No. 2 to 4. But no
affidavit was filed by the respondents though they were made a
party to the petition. We failed to understand why the affidavit
has not been filed by respondents themselves. It is alleged that
accused Raghuraj Pratap Singh alias Raja is an independent
MLA who is supporting the present government and is a Minister
in the government. After going through the transfer petition
and counter affidavit on behalf of the respondents, we are of the
opinion that there is likelihood of miscarriage of justice in the
background mentioned above. It is alleged that murder of Shri
Rajender Yadav has taken place and his younger brother is
connected with this case. Therefore in the interest of justice
both these cases be transferred to any other court where, in a
proper atmosphere, the matter can be dealt with fairly. In the
interest of justice, we direct that criminal case No.3/2003 in
crime case No.10/03 under Sections 3 & 4 of POTA Act titled as
State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja
Bhaiya and Akshya Pratap Singh @ Gopalji, and case No.
113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti
Social Activities(Prevention) Act, 1986 titled as State of U.P. vs.
Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya &
Akshya Pratap Singh pending in the Court of Special
Judge(Gangster Act), Allahabad, U.P. be transferred to a Special
Judge in M.P. Let the Hon. Chief Justice nominate any Special
Judge to try these cases. The transfer petitions are accordingly
allowed.
