Indian Kanoon - Search engine for Indian Law

The only material facts for answering the above question are these: The petitioner is one of the several accused persons in case No. 1 of 1993 being trial in the Designated Court for Greater Bombay in connection with the bomb blasts which took place in Bombay on 12.3.1993 killing a large number of person and causing huge destruction of property. The case of the prosecution against the petitioner, set out in the charge-sheet, is that on 16.1.1993 he "knowingly and intentionally procured from accused Anees Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba @ Ibrahim Musa Chouhan, Abu Salem Abdul, Qayoob Ansari and Man-zoor Ahmed Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and cartridges for the purpose of committing terrorist acts. By keeping the AK-56 rifles, hand grenades, pistol and cartridges' in his possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts of the rifle, the 9 mm. pistol and 53 rounds of live cartridges were recovered during the course of investigation. Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla, Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1 AK-56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them from the house of accused Sanjay Dutt, at his instance, with the intention to protect the offender i.e. Sanjay Dutt from legal consequences and therefore, they are also guilty of the offence u/s 201 IPC". The charge against the petitioner is of several offence including those under the TADA Act, of which Section 5 thereof is one, Reliance is placed by the prosecution on the testimony of certain witnesses, some incriminat-ing circumstances and an unretracted confession by the petitioner himself. In the said confession, which has remained unretracted, the petitioner admitted receiving three AK-56 rifles on 16.1.1993 along with ammunition from the aforesaid persons adding that two days later he returned two of them but retained only one for the purpose of self-defence. The petitioner further stated that in view of the tense communal situation as a result of the incident at Ayodhya on 5.12.1992 and the serious threats given to petitioner's father Sunil Dutta then a Member of Parliament, for his active role in steps taken to restore communal harmony and serious threats to petitioners' sisters also, all of whom were residing together, the petitioner agreed to obtain and keep one AK-56 rifle with ammunition for protection of him family without the knowledge of his father. In short, the petitioner's statement is that his possession of one AK-56 rifle with am-munition was in these circumstances for self defence on account of the serious threats to the members of his family, unrelated to any terrorist activity and, therefore, mere unauthorised possession of the weapons and ammunition by him in these circumstances cannot constitute an offence under Section 5 of the TADA Act. and has to be dealt with only under the Arms Act, 1959. The petitioner claims to be released on bail on this basis and places reliance on certain other facts pertaining to his conduct to support his assertion that his action in unconnected with any terrorist or disruptive activity. It is unnecessary here to refer to any other facts which may be material only for the purpose of considering the case of petitioner on the merits for grant of bail. The Designated Court has refused bail to the petitioner. These special leave petitions are against the order of the Designated Court, in substance, for grant of bail to the petitioner.

The Terrorist and Disruptive Activities (Prevention) Act, 1987 is 'an Act to make special provisions for the prevention of, and of coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto'. The Statement of Objects and Reason indicates the historical background and the situation which led to enactment. It is useful to refer to the material portion of the Statement of objects and Reasons which is, as under : -

"The Terrorist and Disruptive activities (Prevention) Act, 1985, was enacted in May, 1985, in the background of escalation of terrorist activities in many parts of the country at that time. It was expected then that it would be possible to control the menace within a period of two years and, therefore, the life of the said Act was restricted to a period of two years from the date of its commencement, However, it was subsequently realised that on account of various factors, what were stray incidents in the begnning have now become a continuing menace specially in States like Punjab. On the basis of experience, it was felt that in order to combat and cope with terrorist and disruptive activities effectively, it is not only necessary to continue the said law but also to strength it further. The aforesaid Act 1985 was due to expire on the 23rd May, 1987. Since both House of Parliament were not in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on the 23rd May, 1987, which came into force with effect from the 24th May, 1987.

The next ingredient is that the possession of such an arm etc. should be 'unauthorised. That also presents no difficulty. The unauthorised pos- session in the context means without the authority of law. There is not disputed even in this area. The difficulty arises only hereafter. The unauthorised possession so understood of such an arm etc. 'in a notified area' constitutes the offence. The true import of this last ingredient is the area of real controversy.

Section 2(l)(f) defines 'notified area' to mean such area as the State Government may, by notification in the Official Gazette, specify. There is no express indication in the Act of the manner in which the State Government is to exercise this power of issuing the notification. It is rightly urged by the learned Additional Solicitor General that the manner in which this power is to be exercised by the State Government has to be inferred by reading the enactment as a whole keeping in view its object, from which it follows by necessary implication. He submits that the indication is, that the State Government is to notify a specified area for this purpose with reference to the extent of terrorist and disruptive activities herein with a view to check the influx into. The availability without the notified area of the specified arms and ammunition etc. which by their inherent nature are lethal and hazardous and, therefore, facilitate commission of terrorist and disruptive activities. He submits that the unauthorised possession of arms and ammunition etc. of the specified category facilitates the commission of terrorist and disruptive activities and, therefore, an area which is more prone to such activities is notified with a view to prevent the availability of unauthorised weapons and substances of this kind in that area. Learned Additional Solicitor General submitted that it is because of this fact of greater proneness of a notified area to the commission of terrorist and disruptive activities that mere unauthorised possession of the specified arms etc, therein is made a statutory offence of strict liability. This is the basis of his contention that a conviction under Section 5 of the TADA Act must follow on proof by the prosecution of conscious 'possession', 'unauthorisedly', of any of the specified arms and ammunition etc. in a 'notified area'. We think the submission of the learned Additional Solicitor General that the State Government's power to notify an area under Section 2(l)(f) must have relation to curbing terrorist and disruptive activities in the notified area is well founded for otherwise the State Government's power would be unfettered and unguided which would render Section 5 vulnerable.

Several facets of the arguments of sides aim at supporting the rival contentions. Learned Additional Solicitor General contends that there is not such right available to the accused being tried for an offence punishable under Section 5 of the TADA Act while the others canvass for accepting the other view. The clue for resolution of his controversy lies in the significance and true import of the third ingredient of the offence, namely, a 'notified area'.

We have already indicated the manner in, and the purpose for which, a specified area is declared to be a notified area by the State Government under Section 2(1) (f) of the TADA Act. This is done with reference to the fact that a notified area is treated to be more prone to the commission and escalation of terrorist and disruptive activities. This is the basis for classification of 'a notified area' differently from the non-notified areas and it has a reasonable nexus with the object of classification. Such activities must, therefore, have a bearing on the constitution of any special offence confined to that area. Declaration of a specified area as a notified by the State Government is based on its satisfaction , subjective in nature that the area is prone to terrorist and disruptive activities and its escalation. This opinion of the State Government has to be formed necessarily with reference to facts relating to incidents of terrorist and disruptive activities, for the prevention of which check on the influx of the specified arms and ammunition etc. in that area, is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as notified area has to be presumed for the purposes of Section 5 for otherwise it would be put to proof in every case. This is not true significance of the third ingredient of the offence under Section 5.