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J U D G M E N T NANAVATl, J.

This appeal arises out of the judgment and order of the Principal Sessions Judge and Designated Court, Coimbatore, in C.C No. 61 of 1992. As the learned Judge acquitted the accused, the State has filed this appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA Act').

The prosecution case is that Shivarajan alias Raghu (Respondent/Accused No.1) and Vigneswaran alias Vicky (Respondent/Accused No.2) who were Sri Lankan nationals and members of LTTE came to India sometime in 1989 without any travelling documents. So also, Guna and Dixon who were Sri Lankan nationals and members of LTTE had come to India in the like manner. Since then they were engaged in obtaining explosive substances, manufacturing bombs and sending them to LTTE in Sri Lanka. In the said clandestine activity they were helped and assisted by Respondent Nos.3 to 9 (Accused Nos. 3 to 9) who are Indian nationals. Till the assassination of Rajiv Gandhi on 21.5.91, they could carry on the said activity without any hinderance. Thereafter it became difficult for them to do so as the whole of Tamil Nadu was declared as a Notified Area with effect from 23.6.91, under Section 2(1)(f) of TADA Act and also because the Government of India and the Government of Tamil Nadu tightened security measures within the State of Tamil Nadu. The police was also on look out for Sri Lankans who did not possess passport and visa for staying in India and had also required the house owners to report to it if such Sri Lankans were found to be occupying their houses. Due to such strict measures A-1, A-2, Guna and Dixon found it difficult to obtain accommodation for their residence and for manufacturing bombs and storing them and, therefore, they went on changing houses after taking them on rent by making misrepresentations. Since February 1991 A-1 and Guna had taken on rent one house bearing Door No.11/12A situated in Shivaji Colony in Coimbatore. Dixon and others were occupying a different house in Coimbatore. As the LTTE was in desperate need of hand grenades and bombs and wanted them to be supplied latest by the end of first week of August 1991, A-1 to A-5 and A-7 to A-9 and Guna met at the house of A-1 in Shivaji Colony and decided to manufacture and send them to Sri Lanka and also to strike terror in the people by using bombs or other explosives and thereby causing damage to Indian property or death, or injuries to Indian leaders and other persons if they came in their way. All the nine accused along with Guna and Dixon continued to manufacture different parts of hand grenades and plastic bombs and store them at different places. A-1 and A-2 were required to change their residence from Shivaji Colony to a house in Dr. Muthuswamy Colony as the owner of the house objected to their suspicious activities. On 28.7.91, A-1 and A-2 after making necessary arrangements for transporting the hand grenades and plastic bombs manufactured by them with the help of other accused and which were to be filled with explosives at Trichy returned to the house in Dr. Muthuswamy Colony. They found police standing near their house. So they went to another house where some more articles were kept. There they came to know that Guna and Dixon had committed suicide as the police surrounded their house.

In the evening A-1 and A-2 were going on a Kinetic Honda scooter. P.W.1 Pandurangan, a traffic police constable signalled them to stop as he noticed that the scooter was being driven very fast. Instead of stopping the scooter, A-1 who was driving it, attempted to dash it against him. P.W.1 jumped aside and saved himself. After covering some distance A-1 and A-2 fell down on the road along with the scooter. P.W.1 then went to that place and asked A-1 to show his licence. A-1 challenged him by saying as who he was to ask for a licence. A-1 then said "if this police man is done away with, this police department will then understand". He also threatened P.W.1 by stating that if he tried to catch him, beat him or send him out of the country he would destroy the entire Tamil Nadu. P.W.1 suspecting them to be LTTE terrorists, shouted for help and blew his whistle. Thereupon A-1 attempted to start the scooter but it did not start. Hearing the shouts and the whistle two police constables, Sivagnanam and P.W.2 Devasayayam came there. The three police constables with the help of other persons tried to take both the accused in custody. At that time A-1 took out a cyanide capsule from his pant pocket and attempted to put it in his mouth. P.W.1 pushed his hand aside and the capsule fell down on the road. The police constables then took both the accused to Thoodivalur police station. There P.W.1 lodged a complaint against them under Section 353, 307 and 309 I.P.C. On the basis of this complaint Inspector Angamuthu, P.W.55 started the investigation. On the basis of further information other charges under the TADA Act and Explosive Substances Act, 1908 were also added. During the investigation various incriminating articles like incomplete grenades or bombs or their parts and the vehicles used in transporting the same were discovered at the instance of the accused or were recovered from there possession.

On the other hand the learned counsel appearing for the respondents supported the findings on the grounds given by the trial court and submitted that the acquittal of the accused is proper and just and does not call for any interference by this Court.

We will first consider the charge of conspiracy and the evidence led to prove it. The prosesution case was that as, after the assassination of Rajiv Gandhi on 21.5.91, it became very difficult for A-1, A-2, Guna, Dixon and others who were engaged in manufacturing hand grenades and bombs for the LTTE and as the LTTE was in dire need of those bombs latest by the end of the first week of August 1991, the accused met at the house of A-1 and A-2 situated in Shivaji Colony in the first week of July 1991 and hatched a conspiracy by agreeing "to commit illegal acts by illegal means, to strike terror in the people by using bombs and other explosive substances as was likely to cause death and injuries to Indian Leaders and people who might prevent their unlawful activities and also to manufacture grenades and explosive substances in the notified area of Coimbatore;".

In view of the aforesaid discussion of the evidence and the finding the acquittal of the accused under Section 3(3) of the TADA Act and Section 4 of the Explosive Substances Act also will have to be confirmed. No other evidence was led by the prosecution to prove that the accused intended to commit a terrorist act in India or to endanger life or cause serious injury to property in India. On the contrary, the evidence discloses that the accused who were involved in manufacturing bombs and grenades were doing so for their use by LTTE in Colone. Section 3(3) of the TADA Act makes that person punishable who 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. As no terrorist act as contemplated by Section 3(1) of the TADA Act was ever intended by any of the accused, obviously, the ingredients of Section 3(3) cannot be said to have been satisfied in this case. Section 4 of the Explosive Substances Act can have no application as the prosecution has failed to establish that any of the accused had the intention to endanger life or cause serious injury to property in India.