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14. Another police personnel by name Phuleswar Konwer was examined as P.W.3. Though he furnished more details about the occurrence particularly gun shot from the house, over- powering by the police personnel, entering the house, apprehending the two accused and seizing arms and ammunitions and also identified both the accused in the court when he was examined, he also did not say anything about either banned organization (ULFA) or the accused and their activities. On the other hand, he fairly admitted that he did not know whether the arrested accused persons belonged to any banned organization. In other words, even the prime witness of prosecution did not whisper anything about the banned organization (ULFA) their connection and unlawful activities.

At about 12.30 A.M. midnight, I heard the sound of firing in the house. Out of fear we did not go out. Thereafter police called us. Police showed us some arms and disclosed that they recovered it from two ULFA men.

Except the above statement, he did not say anything about the accused persons and their activities.

16. P.W.6, Om Chetry, who is none else than the brother of P.W.5. deposed that he lives with his brother Uday Chetry, and is residing in the same house. Like P.W.5, he also deposed that at mid-night, he heard the sound of firing, woke up and both of them were called by the police. He also deposed that from police we came to know that both the guests are members of ULFA.

17. As rightly pointed out by learned Counsel appearing for the appellants/accused though the prosecution has claimed that P.W.5 and P.W.6 were important witnesses, their evidence clearly show that they did not know about the activities of the accused persons particularly whether they are members of ULFA. Both of them have stated that from the police only they came to know that both are members of ULFA. It is clear that they heard the above information about the accused persons from the police. In such situation and particularly in the light of the charge against the accused, it is but proper on the part of the prosecution to put-forth reliable and acceptable evidence/material to show that the accused were members of ULFA which is a banned organization. Apart from the above witnesses, the prosecution has examined two more witnesses in support of their case.

22. In view of the above discussion and in light of strict compliance to be followed to attract Section 3(1), the conviction under Section 3(1) and punishment under Sub- section 2(ii) of Section 3 of the TADA Act cannot be sustained. We are satisfied that the prosecution has miserably failed to establish the charge levelled against both the accused. The Designated Court has committed an error in accepting the prosecution case based on a mere reference of ULFA by P.Ws. 5 and 6. In fact, both of them have stated that it was the police who disclosed that they recovered some arms from two ULFA men and it is not their own assertion. Neither P.Ws.5 and 6 nor the remaining seven police personnel including Dy. Superintendent of Police, who were examined, whisper a word about the banned organization - ULFA and the alleged unlawful activities of the accused persons in terms of Section 3(1) of the Act. These material aspects have not been adverted to by the Designated Court.