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2. Mr. Saurabh Banerjee, amices curiae for the appellant, at the outset said that so far as case of prosecution against the appellant under Section 363 and 365 IPC is concerned he will not be addressing the Court. Therefore, this appeal survives only for offence under Section 364-A IPC and that is what was indicated by Mr. Saurabh Banerjee, counsel for the appellant right from the beginning. He restricted his arguments in this appeal only against the conviction and sentence passed under Section 364A IPC.

7. Therefore, the question for consideration is what does the words "to pay a ransom" stands for? Does it mean that kidnap or abduction with the intention to demand ransom is sufficient to cover the prosecution case under Section 364-A or such a demand has to be translated into action by communicating the demand either by post or by contact.

8. As already pointed out above to attract the provisions of Section 364-A IPC, prosecution has to prove that the accused kidnapped or abducted the child, kept him under detention after such kidnapping and that the kidnapping was for ransom. So far as kidnapping and detention is concerned those have been established in the facts of this case. But by mere recovery of letter Ex.P-1 purported to have been written by the accused indicating a demand of Rs.50,000/- by itself, to our mind, would not be covered under the expression "to pay a ransom". For the purpose of getting paid a ransom a demand has to be made and communicated. Unless the price of retrieval or rescue is made the question to pay a ransom would not arise. Therefore, the essential ingredient to attract the provisions of Section 364-A is that there has to be a demand by the kidnapper on the complainant or any of his relations asking for the payment of ransom. "To pay" means to set in motion the demand for payment. Demand cannot be by keeping the letter in one's pocket. It has to be communicated to the person from whom the demand to pay is made. Unless that is done prosecution cannot succeed in covering its case under Section 364-A. In the case in hand neither the demand was raised on the family of the kidnapped boy nor communicated. Therefore, mere writing a letter and keeping it in his pocket would not tantamount to be a demand to pay a ransom.

14. Under Section 3 the prosecution was to establish that the appellants committed terrorist act and for that mere possession of photocopy of poster was not considered sufficient to constitute committing a terrorist act. It is only when the pamphlets and letters had been posted and received by the members of the public that the provisions of Section 3 of TADA could be attracted. Similarly in the case in hand to attract the provisions of Section 364-A the prosecution had to establish that "to pay a ransom" demand was raised either by contract or telephonically or by writing or sending the letter to the parents of the kidnapped boy. Having not done so mere possession of the letter Ex.P-1 by the appellant was not sufficient to attract the provisions of Section 364-A IPC. Similarly in the case of Radha Ballabh and Ors Vs. State of U.P. 1995 Supp. (3) Supreme Court Cases 119, the Apex Court upheld the decision of High court which convicted the accused because he wrote a letter demanding ransom. The letter was communicated to the informant and to the father of kidnapped boy. The Apex Court observed that the contents of the letter which was communicated to the father of the kidnapped boy showed that the ransom was demanded. Those letters were sent by post and were received by the addressee in due course. It was in this background that the Court concluded that there was a demand for ransom, and, therefore, the accused was rightly convicted. But alas those are not the facts of the prosecution case. It is prosecution's own admitted case that letter Ex.P-1 had not been communicated to the father of the kidnapped boy. Letter Ex.P(SIC) was still in possession of the accused. Therefore mere recovery of Ex.P(SIC) from the possession of the appellant cannot be deemed to pay a ransom as stipulated under Section 364-A IPC. The attempt to make the demand has to be put into operation by communicating the same by either way having not done so it cannot be said that there was a demand to pay the ransom.

17. For the reasons stated above whole upholding the conviction and sentence of the appellant under Section 363 to 365 IPC we set aside his conviction and sentence under Section 364-A IPC. If the appellant is not required in any other case he may be released. Order be communicated to the appellant through the Superintendent, Cental Jail, Tihar.

18. But before parting we must pen done our appreciation of Mr. Saurabh Banerjee who as amices curiae very ably assisted this Court.