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CASE NO.: Writ Petition (civil)  389 of 2002

PETITIONER: People’s Union for Civil Liberties & Anr.                                                    

RESPONDENT: Union of India                                         

DATE OF JUDGMENT: 16/12/2003

BENCH: S. RAJENDRA BABU & G.P. MATHUR

JUDGMENT: J U D G M E N T

[With     W.P.(Crl.) 89/2002, W.P.(Crl.)  129/2002, W.P.(Crl.) 28/2003 &  W.P.(Crl.) 48/2003]

RAJENDRA  BABU, J. :

W.P.(C) No. 389/2002 & W.P.(Crl) No.  89/2002  :              In this batch of Writ Petitions before us the  Constitutional validity of various provisions of the  Prevention of Terrorism Act, 2002 (hereinafter  POTA) is in challenge.           The Petitioners’ contended before us that  since the provisions of POTA, in pith and  substance, fall under the Entry 1 (Public Order) of  List II Parliament lacks legislative competence. To  authenticate this contention, the decision in  Rehman Shagoo & others V. State of Jammu  Kashmir, 1960 (1) SCR 680, is relied upon.   According to them, the menace of terrorism is  covered by the Entry "Public Order" and to explain  the meaning thereof, our attention is invited to  decisions in Romesh Thaper V. State of  Madras, 1950 SCR 594, Dr. Ram Manohar  Lohia V. State of Bihar, 1966 (1) SCR 709, and  Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC  746. The Petitioners thus submitted that terrorist  activity is confined only to State(s) and therefore  State(s) only have the competence to enact a  legislation. The learned Attorney General refuting this  contention submitted that acts of terrorism, which  are aimed at weakening the sovereignty and  integrity of the country cannot be equated with  mere breaches of law and order and disturbances  of public order or public safety. He argued that the  concept of "sovereignty and integrity of India" is  distinct and separate from the concepts of "public  order" or "security of State" which fall under List  II enabling States to enact legislation relating to  public order or safety affecting or relating to a  particular State. Therefore, the legislative  competence of a State to enact laws for its

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security cannot denude Parliament of its  competence under List I to enact laws to  safeguard national security and sovereignty of  India by preventing and punishing acts of  terrorism. Learned Attorney General distinguished  the decision in Rehman Shagoo and submitted  that the legislation dealt with therein is  fundamentally and qualitatively different from  POTA. He also argued before us that Rehman  Shagoo cannot mitigate the binding ratio and  unanimous conclusion reached by this Court on  the point of legislative competence in Kartar  Singh V. State of Punjab, 1994 (3) SCC 569 =  1994 (2) SCR 375, that Parliament can enact such  law.   In deciding the point of legislative  competence, it is necessary to understand the  contextual backdrop that led to the enactment of  POTA, which aims to combat terrorism. Terrorism  has become the most worrying feature of the  contemporary life. Though violent behavior is not  new, the present day ’terrorism’ in its full  incarnation has obtained a different character and  poses extraordinary challenges to the civilized  world. The basic edifices of a modern State, like -  democracy, state security, rule of law, sovereignty  and integrity, basic human rights etc are under  the attack of terrorism. Though the phenomenon  of terrorism is complex, a ’terrorist act’ is easily  identifiable when it does occur. The core meaning  of the term is clear even if its exact frontiers are  not. That is why the anti-terrorist statutes - the  earlier Terrorism and Disruptive Activities  (Prevention) Act, 1987 (TADA) and now POTA do  not define ’terrorism’ but only ’terrorist acts.’ (See  : Hitendra Vishnu Thakur V. State of  Maharashtra, (1994) 4 SCC 602).  Paul Wilkinson, an authority on terrorism  related works, culled out five major characteristics  of terrorism. They are: 1.      It is premeditated and aims to create a climate  of extreme fear or terror. 2.      It is directed at a wider audience or target than  the immediate victims of violence. 3.      It inherently involves attacks on random and  symbolic targets, including civilians. 4.      The acts of violence committed are seen by the  society in which they occur as extra-normal, in  literal sense that they breach the social norms,  thus causing a sense of outrage; and 5.      Terrorism is used to influence political behavior  in some way - for example to force opponents into  conceding some or all of the perpetrators  demands, to provoke an over-reaction, to serve as  a catalysis for more general conflict, or to  publicize a political cause.  In all acts of terrorism, it is mainly the  psychological element that distinguishes it from  other political offences, which are invariably  accompanied with violence and disorder. Fear is  induced not merely by making civilians the direct  target of violence but also by exposing them to a  sense of insecurity.  It is in this context that this  Court held in Mohd. Iqbal M. Shaikh  V. State  of Maharashtra,  (1998) 4 SCC 494,  that:

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"...it is not possible to give a precise definition  of terrorism or to lay down what constitutes  terrorism. But... it may be possible to describe  it as a use of violence when its most important  result is not merely the physical and mental  damage of the victim but the prolonged  psychological effect it produces or has the  potential of producing on the society as a  whole. ... if the object of the activity is to  disturb harmony of the society or to terrorize  people and the society, with a view to disturb  even tempo, tranquility of the society, and a  sense of fear and insecurity is created in the  minds of a section of society at large, then it  will, undoubtedly be held to be terrorist act..."

Our country has been the victim of an  undeclared war by the epicenters of terrorism with  the aid of well-knit and resourceful terrorist  organizations engaged in terrorist activities in  different States such as Jammu & Kashmir, North- East States, Delhi, West Bengal, Maharashtra,  Gujarat, Tamilnadu, Andhra Pradesh.  The learned  Attorney General placed material to point out that  the year 2002 witnessed 4038 terrorist related  violent incidents in J&K in which 1008 civilians and  453 security personnel were killed. The number of  terrorist killed in 2002 was 1707 out of which 508  were foreigners. In the year 2001 there were as  many as 28 suicide attacks while there were over  10 suicide attacks in 2002 in which innocent  persons and a large number of women and  children were killed. The major terrorist incidents  in the recent past includes attack on Indian  Parliament on 13th December 2001, attack on  Jammu & Kashmir Assembly on 1st October, 2001,  attack on Akshardham temple on 24th September  2002, attack on US Information Center at Kolkatta  on 22nd January 2002, Srinagar CRPF Camp attack  on 22nd November 2002, IED blast near Jawahar  Tunnel on 23rd November 2002, attack on  Raghunath Mandir on 24th November 2002, bus  bomb blast at Ghatkopar in Mumbai on 2nd  December 2002, attack on villagers in Nadimarg in  Pulwama District in Jammu Kashmir on the night  of 23rd-24th  March 2003 etc. There were attacks  in Red Fort and on several Government  Installations, security forces’ camps and in public  places. Gujarat witnessed gruesome carnage of  innocent people by unleashing unprecedented  orgy of terror. People in Bihar, Andhra Pradesh,  and Maharashtra etc have also experienced the  terror trauma. The latest addition to this long list  of terror is the recent twin blast at Mumbai that  claimed about 50 lives. It is not necessary to swell  this opinion by narrating all the sad episodes of  terrorist activities that the country has witnessed.          All these terrorist strikes have certain  common features. It could be very broadly  grouped into three. 1.      Attack on the institution of democracy,  which is the very basis of our country. (By  attacking Parliament, Legislative Assembly etc).  And the attack on economic system by targeting

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economic nerve centers.  2.      Attack on symbols of national pride and  on security / strategic installations. (eg. Red Fort,  Military installations and camps, Radio stations  etc.) 3.      Attack on civilians to generate terror  and fear psychosis among the general populace.  The attack at worshipping places to injure  sentiments and to whip communal passions. These  are designed to position the people against the  government by creating a feeling of insecurity.  

Terrorist acts are meant to destabilize the  nation by challenging its sovereignty and integrity,  to raze the constitutional principles that we hold  dear, to create a psyche of fear and anarchism  among common people, to tear apart the secular  fabric, to overthrow democratically elected  government, to promote prejudice and bigotry, to  demoralize the security forces, to thwart the  economic progress and development and so on.   This cannot be equated with a usual law and order  problem within a State. On the other hand, it is  inter-state, inter-national or cross-border in  character. Fight against the overt and covert acts  of terrorism is not a regular criminal justice  endeavor. Rather it is defence of our nation and  its citizens. It is a challenge to the whole nation  and invisible force of Indianness that binds this  great nation together. Therefore, terrorism is a  new challenge for law enforcement. By indulging  in terrorist activities organized groups or  individuals, trained, inspired and supported by  fundamentalists and anti-Indian elements were  trying to destabilize the country.  This new breed  of menace was hitherto unheard of. Terrorism is  definitely a criminal act, but it is much more than  mere criminality. Today, the government is  charged with the duty of protecting the unity,  integrity, secularism and sovereignty of India from  terrorists, both from outside and within borders.  To face terrorism we need new approaches,  techniques, weapons, expertise and of course new  laws.   In the above said circumstances Parliament  felt that a new anti-terrorism law is necessary for  a better future. This parliamentary resolve is  epitomized in POTA.  The terrorist threat that we are facing is now  on an unprecedented global scale. Terrorism has  become a global threat with global effects. It has  become a challenge to the whole community of  civilized nations. Terrorist activities in one country  may take on a transnational character, carrying  out attacks across one border, receiving funding  from private parties or a government across  another, and procuring arms from multiple  sources. Terrorism in a single country can readily  become a threat to regional peace and security  owing to its spillover effects. It is therefore  difficult in the present context to draw sharp  distinctions between domestic and international  terrorism. Many happenings in the recent past  caused the international community to focus on  the issue of terrorism with renewed intensity. The  Security Council unanimously passed resolutions

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1368 (2001) and 1373 (2001); the General  Assembly adopted resolution 56/1 by consensus,  and convened a special session. All these  resolutions and declarations inter alia call upon  Member States to take necessary steps to ’prevent  and suppress terrorist acts’ and also to ’prevent  and suppress the financing of terrorist acts.’ India  is a party to all these resolves.  Anti-terrorism  activities in the global level are mainly carried out  through bilateral and multilateral cooperation  among nations. It has thus become our  international obligation also to pass necessary  laws to fight terrorism.  The attempts by the State to prevent  terrorism should be based on well-established  legal principles. The ’Report of the Policy Working  Group of the United Nations and Terrorism’ urged  the global community to concentrate on a triple  strategy to fight against terrorism. They are:         a). Dissuade disaffected groups from  embracing terrorism;         b). Deny groups or individuals the means to  carry out acts of terrorism; and          c). Sustain broad-based international  cooperation in the struggle against terrorism.  Therefore, the anti-terrorism laws should be  capable of dissuading individuals or groups from  resorting to terrorism, denying the opportunities  for the commission of acts of terrorism by creating  inhospitable environments for terrorism and also  leading the struggle against terrorism. Anti -  terrorism law is not only a penal statue but also  focuses on pre-emptive rather than defensive  State action. At the same time in the light of  global terrorist threats, collective global action is  necessary. Lord Woolf CJ in A, X and Y, and  another V. Secretary of the State for the  Home Department (Neutral Citation Number:  [2002] EWCA Civ. 1502) has pointed out that  "...Where international terrorists are operating  globally and committing acts designed to terrorize  the population in one country, that can have  implications which threaten the life of another.  This is why a collective approach to terrorism is  important."  Parliament has passed POTA by taking all  these aspects into account.  The terrorism is not  confined to the borders of the country.   Cross- border terrorism is also threatening the country.    To meet such a situation, a law can be enacted  only by Parliament and not by a State Legislature.     Piloting the Prevention of Terrorism Bill in the joint  session of Parliament on March 26, 2002 Hon’ble  Home Minister said:  "...The Government of India has been  convinced for the last four years that we have  been here and I am sure even the earlier  Governments held that terrorism and more  particularly, State-sponsored cross border  terrorism is a kind of war. It is not just a law  and order problem. This is the first factor,  which has been responsible for Government  thinking in terms of an extraordinary law like  POTO.

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...So, first of all, the question that I would like  to pose to all of you and which we have posed  to the nation is: ’Is it just in Jammu and  Kashmir an aggravated law and order situation  that we are facing or is it really when we say it  a proxy war, do we really believe that it is a  proxy war?’...But when you have terrorist  organizations being trained, financed by a  State and it becomes State-sponsored  terrorism and all of them are enabled to  infiltrate into our country, it becomes a  challenge of a qualitatively different nature..."                                         (Emphasis supplied)

From this it could be gathered that  Parliament has explored the possibility of  employing the existing laws to tackle terrorism  and arrived at the conclusion that the existing  laws are not capable. It is also clear to Parliament  that terrorism is not a usual law and order  problem.  The protection and promotion of human  rights under the rule of law is essential in the  prevention of terrorism. Here comes the role of  law and Court’s responsibility. If human rights are  violated in the process of combating terrorism, it  will be self-defeating. Terrorism often thrives  where human rights are violated, which adds to  the need to strengthen action to combat violations  of human rights. The lack of hope for justice  provides breeding grounds for terrorism.  Terrorism itself should also be understood as an  assault on basic rights. In all cases, the fight  against terrorism must be respectful to the human  rights.  Our Constitution laid down clear limitations  on the State actions within the context of the fight  against terrorism. To maintain this delicate  balance by protecting ’core’ Human Rights is the  responsibility of Court in a matter like this.   Constitutional soundness of POTA needs to be  judged by keeping these aspects in mind. Now, we will revert to the issue of legislative  competence. Relying on Rehman Shagoo  Petitioners argued that Parliament lacks  competence since the ’terrorism’ in pith and  substance covered under the Entry 1 (Public  Order) of List II. Conclusion of this contention  depends upon the true meaning of the Entry -  ’Public Order’.          A constitution Bench of this Court in Rehman  Shagoo examined the constitutionality of the  Enemy Agents (Ordinance), No. VIII of S. 2005  promulgated by His Highness the Maharaja  under  Section 5 of Jammu Kashmir Constitution Act, S.  1996. For a proper understanding of the ratio in  Rehman Shagoo, it is necessary to understand the  background in which the impugned Ordinance was  promulgated. (See : Prem Nath Kaul V. The  State of Jammu & Kashmir, 1959 Supp. (2)  SCR 270, to understand the background that  prevailed in the then Kashmir). Because any  interpretation divorced from the context and  purpose will lead to bad conclusions. It is a well- established canon of interpretation that the

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meaning of a word should be understood and  applied in accordance with the context of time,  social and conditional needs. Rehman Shagoo  was concerned with the interpretation of  Instrument of Accession and the power of  Maharaja to issue the impugned Ordinance  therein. The same was promulgated to protect the  state of Kashmir from external raiders and to  punish them and those who assist them. The  situation that prevailed during the latter half of  1940s is fundamentally different form today. The  circumstances of independence, partition, state  re-organization, and the peculiar situation  prevailing in the then Kashmir etc. need to be  taken into account. It is only in that context this  Court said in Rehman Shagoo that the impugned  Ordinance:  

" ...In pith and substance deals with public  order and criminal law procedure; the mere  fact that there is an indirect impact on armed  forces in s. 3 of the Ordinance will not make it  in pith and substance a law covered by item  (1) under the head ’Defence’ in the Schedule."

Therefore, Rehman Shagoo is  distinguishable and cannot be used as an authority  to challenge the competence of Parliament to pass  POTA. The problems that prevailed in India  immediately after independence cannot be  compared with the menace of terrorism that we  are facing in the twenty first century. As we have  already discussed above, the present day problem  of terrorism is affecting the security and  sovereignty of the nation. It is not State specific  but trans-national. Only Parliament can make a  legislation to meet its challenge. Moreover, the  entry ’Public Order’ in the State List only  empowers the States to enact a legislation relating  to public order or security in so far as it affects or  relates to a particular State. How so ever wide a  meaning is assigned to the Entry ’Public Order’,  the present day problem of terrorism cannot be  brought under the same by any stretch of  imagination. Thus, Romesh Thaper, Dr. Ram  Manohar Lohia and Madhu Limaye (all cited  earlier) cannot be resorted to read ’terrorism’ into  ’Public Order’. Since the Entry Public Order or any  other Entries in List II do not cover the situation  dealt with in POTA, the legislative competence of  Parliament cannot be challenged.  Earlier a Constitution Bench of this Court,  while dealing with the very same argument, held  in Kartar Singh’s case (supra) as follows:

"Having regard to the limitation placed by  Article 245 (1) on the legislative power of the  Legislature of the State in the matter of  enactment of laws having application within  the territorial limits of the State only, the  ambit of the field of legislation with respect to  ’public order’ under Entry 1 in the State List  has to be confined to disorders of lesser  gravity having an impact within the boundaries

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of the State. Activities of a more serious nature  which threaten the security and integrity of the  country as a whole would not be within the  legislative field assigned to the States under  Entry 1 of the State List but would fall within  the ambit of Entry 1 of the Union List relating  to defence of India and in any event under the  residuary power conferred on Parliament under  Article 248 read with Entry 97 of the Union  List. ... The terrorism, the Act (TADA) contemplates,  cannot be classified as mere disturbances of  ’public order’ disturbing the ’even tempo of the  life of community of any specified locality’ - in  the words of Hidayathulla, C J in Arun Ghosh v.  State of West Bengal (1970) 1 SCC 98 but it is  much more, rather a grave emergent situation  created either by external forces particularly at  the frontiers of this country or by anti- nationals throwing a challenge to the very  existence and sovereignty of the country in its  democratic polity.          ... In our view, the impugned legislation does not  fall under Entry 1 of List II, namely, Public  Order. No other Entry in List II has been  invoked. The impugned Act, therefore, falls  within the legislative competence of Parliament  in view of Article 248 read with Entry 97 of List  I and it is not necessary to consider whether it  falls under any of the entries in List I or List  III. We are, however, of the opinion that the  impugned Act could fall within the ambit of  Entry 1 of List I, namely, ’Defence of India’."   [pp. 633, 634, 635]

       While this is the view of the majority of  Judges in Kartar Singh’s case (supra), K.  Ramaswamy,J. held  that Parliament does possess  power under Article 248 and Entry 97 of List I of  the Seventh Schedule and could also come within  the ambit of Entry 1 of List III.   Sahai,J.  held  that the legislation could be upheld under Entry 1  of List III. Thus, all the Judges are of the  unanimous opinion that Parliament had legislative  competence though for different reasons.   

Considering all the above said aspects, the  challenge advanced by Petitioners of want of  legislative competence of Parliament to enact  POTA is not tenable.  

Another issue that the Petitioner has raised  at the threshold is the alleged misuse of TADA and  the large number of acquittals of the accused  charged under TADA. Here we would like to point  out that this Court cannot go into and examine the  ’need’ of POTA. It is a matter of policy.  Once  legislation is passed the Government has an  obligation to exercise all available options to  prevent terrorism within the bounds of the  Constitution. Moreover, we would like to point out  that this Court has repeatedly held that mere  possibility of abuse cannot be counted as a ground

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for denying the vesting of powers or for declaring  a statute unconstitutional. (See: State of  Rajasthan V. Union of India, (1978) 1 SCR 1,  Collector of Customs V. Nathella Sampathu  Chetty, AIR 1962 SC 316, Keshavananda  Bharati V. State of Kerala, 1973 (4) SCC 225;  Mafatlal Industries V. Union of India, (1997) 5  SCC 536 etc).   

Meaning of the word ’abets’ in the context of  POTA:

Pertaining to the validity of individual  sections, petitioners primarily contended that  Section 3(3) of POTA provides that whoever  ’abets’ a terrorist act or any preparatory act to a  terrorist act shall be punishable and this provision,  fails to address the requirement of ’mens rea’  element. They added that this provision has been  incorporated in POTA in spite of the contrary  observation of this Court in Kartar Singh,  wherein it was held that the word ’abets’ need to  have the requisites of intention or knowledge.  Consequently, they want us to strike down Section  3(3) as the same is prone to misuse.            In Kartar Singh, this Court was concerned  with the expression "abet"  as defined under  Section 2(1)(a) of TADA and hence considered the  effect of different provisions of the TADA to  ascertain true meaning thereof.   As the meaning  of the word "abet" as defined therein is vague and  in precise, actual knowledge or reason to believe  on the part of the person to be brought within the  definition should be brought into that provision  instead of reading down that provision.  That kind  of exercise is not necessary in POTA.  

Under POTA the word "abets" is not defined  at all. Section 2(1)(i) of POTA says "words and  expressions used but not defined in this Act and  defined in the Code shall have the meaning  respectively assigned to them in the Code."  According to Section 2(1)(a) of POTA "Code"  means ’Code of Criminal Procedure, 1973 (2 of  1974).’ Whereas, Section 2(y) Cr.P.C. refers to  Indian Penal Code for meaning of the word ’abets’.  Therefore, the definition of ’abets’ as appears in  the IPC will apply in a case under POTA. In order  to bring a person abetting the commission of an  offence, under the provisions of IPC it is necessary  to prove that such person has been connected  with those steps of the transactions that are  criminal. ’Mens rea’ element is sine qua non for  offences under IPC. Learned Attorney General  does not dispute this position. Therefore, the  argument advanced pertaining to the validity of  Section 3(3) citing the reason of the absence of  mens rea element stands rejected.  

Section 4:

Section 4 provides for punishing a person  who is in ’unauthorised possession’ of arms or  other weapons.   The petitioners argued that  

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since the knowledge element is absent the  provision is bad in law. A similar issue was raised  before a Constitution Bench of this Court in  Sanjay Dutt V. State (II), (1994) 5 SCC 410.  Here this Court in Para 19 observed that:

"... Even though the word ’possession’ is not  preceded by any adjective like ’knowingly’, yet  it is common ground that in the context the  word ’possession’ must mean possession with  the requisite mental element, that is, conscious  possession and not mere custody without the  awareness of the nature of such possession.  There is a mental element in the concept of  possession. Accordingly, the ingredient of  ’possession’ in Section 5 of the TADA Act  means conscious possession. This is how the  ingredient of possession in similar context of  statutory offence importing strict liability on  account of mere possession of an unauthorised  substance has been understood."  

       The finding of this Court squarely to the  effect that there exists a mental element in the  word possession itself answers the Petitioners  argument. The learned Attorney General also  maintains the stand that Section 4 presupposes  conscious possession. Another aspect pointed out  by the petitioners is about the ’unauthorized’  possession of arms and argued that unauthorized  possession could even happen; for example, by  non-renewal of license etc. In the light of Sanjay  Dutt’s case (supra) this Section presupposes  knowledge of terrorist act for possession. There is  no question of innocent persons getting punished.  Therefore, we hold that there is no infirmity in  Section 4.

Sections 6, 7, 8, 10, 11, 15, 16 and 17:

       Contentions have been raised in regard to  provisions relating to seizure, attachment and  forfeiture of proceeds of terrorism.          Provisions relating to seizure, attachment  and forfeiture have to be read together.  Section  2(c) of POTA sets out the meaning of ’proceeds of  terrorism’ and reads as follows: " ’proceeds of terrorism’ shall mean all  kinds of properties which have been  derived or obtained from commission of  any terrorist act or have been acquired  through funds traceable to a terrorist act,  and shall include cash irrespective of  person in whose name such proceeds are  standing or in whose possession they are  found."

       Explanation to Section 3 gives the meaning  of ’a terrorist act’ in the context of sub-section (1)  of Section 3 so as to include the act of raising  funds intended for the purpose of terrorism.  

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Section 6 debars a person from holding or  possessing any proceeds of terrorism and also  makes it clear that it is liable to be forfeited.   Section 7 authorises an investigating officer, not  below the rank of Superintendent of Police with  the prior approval in writing of the Director  General of Police of the State, to seize such  property or attach the same and serve a copy of  such an order on the person concerned, if he has  reason to believe that any property in relation to  which an investigation is being conducted  represents proceeds of terrorism.  Section 8  provides for forfeiture of the proceeds of terrorism  by a court irrespective of the fact whether or not  the person from whose possession it is seized or  attached is prosecuted in a Special Court for an  offence under POTA.  Section 9 provides for issue  of show cause notice before forfeiture of proceeds  of terrorism and an order for forfeiture cannot be  made if such person establishes that he is a bona  fide transferee of such proceeds for value without  knowing that they represent proceeds of  terrorism.  Under Section 10, an appeal lies  against an order made under Section 8 of POTA.   Sub-section (2) thereof states that where an order  made under Section 8 is modified or annulled by  the High Court, the person against whom an order  of forfeiture has been made under Section 8 is  acquitted, such property shall be returned to him  and in either case if it is not possible for any  reason to return the forfeited property, adequate  compensation should be paid to him, which will be  equivalent to the price and interest from the date  of seizure of the property.  Although the  petitioners have challenged the various provisions  of POTA relating to seizure, forfeiture and  attachment of the property, ultimately they did  not pursue with that argument and submitted that  the various facets of challenge to the aforesaid  provisions can only be examined in the context of  an actual fact situation and for the present they  wanted an interpretation of the expressions used  in Section 10(2) to apply even to a case of  forfeiture of the proceeds of terrorism against a  person who is prosecuted under POTA.  Even that  aspect can only be considered when an actual  situation arises and not in the abstract.   Therefore, we need not examine in detail these  provisions except to notice the background in  which these provisions have been enacted.   

The order of forfeiture, by reason of Section  11, has been made independent of imposition of  other punishments to which a person may be  liable.  Under Section 12, Designated Authority  has been permitted to investigate the claims made  by a third party.  These provisions have to be seen  as against Section 16, which provides for  forfeiture of property of any person prosecuted  and ultimately convicted.  Here only on conviction,  forfeiture of property can take place.   In this  connection, it is relevant to take note of the  provisions of Sections 15, 16 and 17.  Section 15  renders certain transfers to be null and void in  cases where after the issue of an order under

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Section 7 or notice under Section 9 any property  is transferred by any mode whatsoever, such  transfer shall for the purpose of the Act be ignored  and if such property is subsequently forfeited, the  transfer of such property shall be deemed to be  null and void.  Section 16 enables a special court  trying a person for an offence under the Act to  pass an order that all or any of the properties,  movable or immovable or both belonging to him,  during the period of such trial, be attached, if not  already attached under the Act.  On conviction of  such person, the special court may, by an order,  declare that any property, movable or immovable  or both belonging to the accused and specified in  the order, shall stand forfeited to the Central  Government or the State Government, as the case  may be.  Section 17 provides that in cases where  any share of a company shall stand forfeited,  then, the company shall, on receipt of the order of  the special court, notwithstanding anything  contained in the Companies Act, 1956 or the  articles of association of the company, forthwith  register the Central Government or the State  Government, as the case may be, as the  transferee of such shares.

Funding and financing play a vital role in  fostering and promoting terrorism and it is only  with such funds terrorists are able to recruit  persons for their activities and make payments to  them and their family to obtain arms and  ammunition for furthering terrorist activities and  to sustain the campaign of terrorism.  Therefore,  seizure, forfeiture and attachment of properties  are essential in order to contain terrorism and is  not unrelated to the same.  Indeed, it is relevant  to notice a resolution passed by the United  Nations Security Council [Resolution No.1373  dated 28.9.2001] which emphasized the need to  curb terrorist activities by freezing and forfeiture  of funds and financial assets employed to further  terrorist activities.  It will also be interesting to  notice the United Nations International Convention  for the Suppression of the Financing of Terrorism  but at the same time it is not necessary to go into  those details in the present context.  The scheme  of the provisions indicate that the principles of  natural justice are duly observed and they do not  confer any arbitrary power and forfeiture can only  be made by an order of the court against which an  appeal is also provided to the High Court and the  rights of bona fide transferee are not affected.   Therefore, for the present, it is not necessary to  pronounce the constitutional validity of these  provisions and we proceed on the basis that they  are valid.

       Number of changes have been made in the  provisions which existed in TADA and which exist  in POTA.   The relevant discussion in the challenge  to Section 8 of TADA by majority in Kartar Singh  is contained in paras 149-157 and para 452 by  Justice Sahai who has concurred with the  majority.  The validity of Section 8 of TADA was  upheld, only if it was applied in the manner

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indicated in Para 156 of the judgment which is as  under :-

"The discretionary power given to the  Designated Court under Section 8(1) and (2)   is to be exercised under strict contingencies,  namely,  that (1) there must be an order of  forfeiture and that order must be in writing;   (2)  the property either movable or immovable  or both must belong to the accused convicted  of any offence of TADA Act or rule thereunder;   (3)  the property should be specified in the  order; (4)  even though attachment can be  made under Section 8(2) during the trial of the  case,  the forfeiture can be ordered only in  case of conviction and not otherwise."

       However, ultimately, they do not press these  contentions to be considered in these proceedings  by stating that the various facets as set above can  really be seen in actual fact situation and for the  present, they call upon the Court to clarify that  the expression  "modified" or  "annulled" used in  Section 10(2) shall apply even in a case of  forfeiture of the proceeds of terrorism against a  person who is not prosecuted under POTA.   

       It is not necessary to interpret these  expressions and as and when an appropriate case  arises, appropriate interpretation can be given on  the said expressions.  There is a scheme for  forfeiture of the proceeds of terrorism followed by  a show cause notice to be issued and thereafter  on a decision being made, an appeal lies thereto  and the order of forfeiture, by itself, will not  prevent the court from inflicting any other  punishment for which the person may be liable  under the Act. The effect of modification and  annulment of an order made by court under  Section 8 of the Act is set out in sub-section (2) of  Section 10.  Therefore, as rightly submitted on  behalf of the petitioners, these aspects can  appropriately be dealt with depending upon the  fact situation arising in a given case.  Therefore,   it is not necessary to express any opinion on these  aspects of the matter.

Section 14:

The constitutional validity of Section 14 is  challenged by advancing the argument that it  gives unbridled powers to the investigating officer  to compel any person to furnish information if the  investigating officer has reason to believe that  such information will be useful or relevant to the  purpose of the Act. It is pointed out that the  provision is without any checks and is amenable to  misuse by the investigating officers. It is also  argued that it does not exclude lawyers or  journalists who are bound by their professional  ethics to keep the information rendered by their  clients as privileged communication. Therefore,  the Petitioners submitted that Section 14 is  violative of Articles 14, 19, 20(3) and 21 of the

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Constitution. Learned Attorney General maintained  that the Act does not confer any arbitrary or  unguided powers; that such power is restricted to  furnish information in one’s possession in relation  to terrorist offence ’on points or matters where  the investigating officer has reason to believe (not  suspect) that such information would be useful for  or relevant to the purposes of the Act’; that this  provision is essential for the detection and  prosecution of terrorist offences; and that the  underlying rationale of the obligation to furnish  information is the salutary duty of every citizen.  

       Section 39 of the Code of Criminal Procedure,  1973 casts a duty upon every person to furnish  information regarding offences. Criminal justice  system cannot function without the cooperation of  people. Rather it is the duty of every body to  assist the State in detection of the crime and  bringing criminal to justice. Withholding such  information cannot be traced to right to privacy,  which itself is not an absolute right (See : Sharda  V. Dharmpal,  2003 (4) SCC 493). Right to  privacy is subservient to that of security of State.  Highlighting the necessity of people’s assistance in  detection of crime this Court observed in State of  Gujarat V. Anirudhsing, 1997 (6) SCC 514,  that:

"...It is the salutary duty of every witness who  has the knowledge of the commission of the  crime, to assist the State in giving evidence..."

Section 14 confers power to the investigating  officer to ask for furnishing information that will be  useful for or relevant to the purpose of the Act.  Further more such information could be asked  only after obtaining a written approval from an  officer not below the rank of a Superintendent of  Police. Such power to the investigating officers is  quiet necessary in the detection of terrorist  activities or terrorist.  

       It is settled position of law that a journalist or  lawyer does not have a sacrosanct right to  withhold information regarding crime under the  guise of professional ethics. A lawyer cannot claim  a right over professional communication beyond  what is permitted under Section 126 of the  Evidence Act. There is also no law that permits a  newspaper or journalist to withhold relevant  information from Courts though they have been  given such power by virtue of Section 15(2) of the  Press Council Act, 1978 as against Press Council.  (See also : Pandit M.S.M Sharma V. Shri Sri  Krishan Sinha, 1959 Supp (1) SCR 806, and  Sewakram Sobhani V. R.K Karanjia, 1981 (3)  SCC 208, which quoted Arnold V. King Emperor  1913-14 (41) IA 149, with approval and also  B.S.C V. Granada Television, 1981 (1) All E.R  417 (HL) and Branzburg V. Hayes, 1972 (408)  US 665). Of course the investigating officers will  be circumspect and cautious in requiring them to  disclose information. In the process of obtaining

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information, if any right of citizen is violated,  nothing prevents him from resorting to other legal  remedies.          In as much as the main purpose of Section14  of POTA is only to allow the investigating officers  to procure certain information that is necessary to  proceed with the further investigation we find  there is no merit in the argument of the  petitioners and we uphold the validity of Section  14.  

Sections 18 & 19:         Sections 18 and 19 deals with the notification  and de-notification of terrorist organizations.  Petitioners submitted that under Section 18(1) of  POTA a schedule has been provided giving the  names of terrorist organization without any  legislative declaration; that there is nothing  provided in the Act for declaring organizations as  terrorist organization; that this provision is  therefore, unconstitutional as it takes away the  fundamental rights of an organization under  Articles 14, 19(1)(a) and 19(1)(c) of the  Constitution; that under Section 18(2) of the Act,  the Central Government has been given  unchecked and arbitrary powers to ’add’ or  ’remove’ or ’amend’ the Schedule pertaining to  terrorist organizations; that under the Unlawful  Activities (Prevention) Act, 1967 an organization  could have been declared unlawful only after the  Central Government has sufficient material to  form an opinion and such declaration has to be  made by a Notification wherein grounds have to  be specified for  making such declaration: that  therefore such arbitrary power is violative of  Articles 14, 19 and 21 of the Constitution.  Pertaining to Section 19 the main allegation is that  it excessively delegates power to Central  Government in the appointment of members to  the Review Committee and they also pointed out  that the inadequate representation of judicial  members will affect the decision-making and  consequently it may affect the fair judicial  scrutiny; that therefore Section 19 is not  constitutionally valid.  

       The Learned Attorney General contended that  there is no requirement of natural justice which  mandates that before a statutory declaration is  made in respect of an organization which is listed  in the schedule a prior opportunity of hearing or  representation should be given to the affected  organization or its members: that the rule of audi  alteram partem is not absolute and is subject to  modification; that in light of post-decisional  hearing remedy provided under Section 19 and  since the aggrieved persons could approach the  Review Committee there is nothing illegal in the  Section; that furthermore the constitutional  remedy under Articles 226 and 227 is also  available; that therefore, having regard to the  nature of the legislation and the magnitude and  prevalence of the evil of terrorism cannot be said  to impose unreasonable restrictions on the  Fundamental Rights under Article 19(1)(c) of the

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Constitution.  

       The right of citizens to form association or  union that is guaranteed by Article 19(1)(c) of the  Constitution is subject to the restriction provided  under Article 19(4) of the Constitution. Under  Article 19(4) of the Constitution the State can  impose reasonable restrictions, inter alia, in the  interest of sovereignty and integrity of the  country. POTA is enacted to protect sovereignty  and integrity of India from the menace of  terrorism. Imposing restriction under Article 19(4)  of the Constitution also includes declaring an  organization as a terrorist organization as  provided under POTA. Hence Section 18 is not  unconstitutional.   

It is contended that before making the  notification whereby an organization is declared as  a terrorist organization there is no provision for  pre-decisional hearing. But this cannot be  considered as a violation of audi alteram partem  principle, which itself is not absolute. Because in  the peculiar background of terrorism it may be  necessary for the Central Government to declare  an organization as terrorist organization even  without hearing that organization. At the same  time under Section 19 of POTA the aggrieved  persons can approach the Central Government  itself for reviewing its decision. If they are not  satisfied by the decision of the Central  Government they can subsequently approach  Review Committee and they are also free to  exercise their Constitutional remedies.  The post- decisional remedy provided under POTA satisfies  the audi alteram partem requirement in the  matter of declaring an organization as a terrorist  organization. (See: Mohinder Singh Gill V. Chief  Election Commissioner, 1978 (1) SCC 405;  Swadeshi Cotton Mills V. Union of India, 1981  (1) SCC 664; Olga Tellis V. Bombay Municipal  Corporation, 1985 (3) SCC 545; Union of India  V. Tulsiram Patel, 1985 (3) SCC 398).  Therefore, the absence of pre-decisional hearing  cannot be treated as a ground for declaring  Section 18 as invalid.   It is urged that Section 18 or 19 is invalid  based on the inadequacy of judicial members, in  the Review Committee. As per Section 60,  Chairperson of the Review Committee will be a  person who is or has been a Judge of High Court.  The mere presence of non-judicial members by  itself cannot be treated as a ground to invalidate  Section 19. (See: Kartar Singh’ case (supra) at  page 683, para 265 of SCC).           As regards the reasonableness of the  restriction provided under Section 18, it has to be  noted that the factum of declaration of an  organization as a terrorist organization depends  upon the ’belief’ of Central Government. The  reasonableness of the Central Government’s  action has to be justified based on material facts  upon which it formed the opinion. Moreover the  Central Government is bound by the order of the  Review Committee.  Considering the nature of

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legislation and magnitude or presence of  terrorism, it cannot be said that Section 18 of  POTA imposes unreasonable restrictions on  fundamental right guaranteed under Article  19(1)(c) of the Constitution. We uphold the  validity of Sections 18 and 19.

Sections 20, 21 & 22:

       Petitioners assailed Sections 20, 21 and 22  mainly on the ground that no requirement of mens  rea for offences is provided in these Sections and  the same is liable to misuse therefore it has to be  declared unconstitutional. The Learned Attorney  General argued that Section 21 and its various  sub-sections are penal provisions and should be  strictly construed both in their interpretation and  application; that on a true interpretation of the Act  having regard to the well settled principles of  interpretation Section 21 would not cover any  expression or activity which does not have the  element or consequence of furthering or  encouraging terrorist activity or facilitating its  commission; that support per se or mere  expression of sympathy or arrangement of a  meeting which is not intended or designed and  which does not have the effect to further the  activities of any terrorist organization or the  commission of terrorist acts are not  within the  mischief of Section 21 and hence is valid.  

       Here the only point to be considered is  whether these Sections exclude mens rea element  for constituting offences or not. At the outset it  has to be noted that Sections 20, 21 and 22 of  POTA is similar to that of Sections 11, 12 and 15  of the Terrorism Act, 2000 of United Kingdom.  Such provisions are found to be quite necessary  all over the world in anti-terrorism efforts.  Sections 20, 21 and 22 are penal in nature that  demand strict construction. These provisions are a  departure from the ordinary law since the said law  was found to be inadequate and not sufficiently  effective to deal with the threat of terrorism.  Moreover, the crime referred to herein under  POTA is aggravated in nature. Hence special  provisions are contemplated to combat the new  threat of terrorism. Support either verbal or  monetary, with a view to nurture terrorism and  terrorist activities is causing new challenges.  Therefore Parliament finds that such support to  terrorist organizations or terrorist activities need  to be made punishable. Viewing the legislation in  its totality it cannot be said that these provisions  are obnoxious.  

       But the Petitioners apprehension regarding  the absence of mens rea in these Sections and the  possibility of consequent misuse needs our  elucidation. It is the cardinal principle of criminal  jurisprudence that mens rea element is necessary  to constitute a crime. It is the general rule that a  penal statute presupposes mens rea element. It  will be excluded only if the legislature expressly  postulate otherwise. It is in this context that this

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Court said in Kartar Singh’s case (supra) (at  page 645 para 115 of SCC) that:  "Unless a statue either expressly or by  necessary implication rules out ’mens rea’ in  case of this kind, the element of mens rea  must be read into the provision of the statute."  

       Mens rea by necessary implication could be  excluded from a statue only where it is absolutely  clear that the implementation of the object of the  Statue would otherwise be defeated. Here we  need to find out whether there are sufficient  grounds for inferring that Parliament intended to  exclude the general rule regarding mens rea  element. (See: State of Maharashtra V. M H  George, AIR 1965 SC 722, Nathulal V. State of  MP, AIR 1966 SC 43, Inder Sain V. State of  Punjab, (1973) 2 SCC 372, for the general  principles concerning the exclusion or inclusion of  mens rea element vis-‘-vis a given statute). The  prominent method of understanding the legislative  intention, in a matter of this nature, is to see  whether the substantive provisions of the Act  requires mens rea element as a constituent  ingredient for an offence. Offence under Section  3(1) of POTA will be constituted only if it is done  with an -’intent’. If Parliament stipulates that the  ’terrorist act’ itself has to be committed with the  criminal intention, can it be said that a person who  ’profess’ (as under Section 20) or ’invites support’  or ’arranges, manages, or assist in arranging or  managing a meeting’ or ’addresses a meeting’  (as  under Section 21) has committed the offence if he  does not have an intention or design to further the  activities of any terrorist organization or the  commission of terrorist acts? We are clear that it  is not. Therefore, it is obvious that the offence  under Section 20 or 21 or 22 needs positive  inference that a person has acted with intent of  furthering or encouraging terrorist activity or  facilitating its commission. In other words, these  Sections are limited only to those activities that  have the intent of encouraging or furthering or  promoting or facilitating the commission of  terrorist activities. If these Sections are  understood in this way, there cannot be any  misuse. With this clarification we uphold the  constitutional validity of Sections 20, 21 and 22.  

Section 27:         Under Section 27, a police officer  investigating a case can seek a direction through  the Court of Chief Judicial Magistrate or the Court  of a Chief Metropolitan Magistrate for obtaining  samples of handwriting, finger prints, foot-prints,  photographs, blood, saliva, semen, hair, voice of  any accused person reasonably suspected to be  involved in the commission of an offence under  the Act. The Court can also draw adverse  inference if an accused refuses to do so.            Petitioners argued that this Section falls foul  of Articles 14, 20(3) and 21 of the Constitution for  the reason: that no power has been left with the  Court to decide whether the request for samples

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from a suspect person sought for by investigating  office is reasonable or not; that no power has  been given to the Court to refuse the request of  the investigating officer; that it is not obligatory  for the Court to record any reason while allowing  the request; and that the Section is a gross  violation of Article 20(3) because it amounts to  compel a person to give evidence against himself.  Relying mainly on State of Bombay V. Kathi  Kalu Oghad, 1962 (3) SCR 10, learned Attorney  General submitted that the argument pertaining to  the violation of Article 20(3) is not sustainable.           We do not think, as feared by the Petitioner,  that this Section fixes a blanket responsibility  upon the Court to grant permission immediately  upon the receipt of a request. Upon a close  reading of the Section it will become clear that  upon a ’request’ by an investigating police officer  it shall only ’be lawful’ for the Court to grant  permission. Nowhere it is stated that the Court will  have to positively grant permission upon a  request. It is very well within the ambit of Court’s  discretion. If the request is based on wrong  premise, the Court is free to refuse the request.  This discretionary power granted to the Court  presupposes that the Court will have to record its  reasoning for allowing or refusing a request.  Pertaining to the argument that the Section per se  violates Article 20(3), it has to be noted that a  bench consisting of 11 judges in Kathi Kalu  Oghad’s case (supra) have looked into a similar  situation and it is ruled therein (at pages 30 -32)  that:     "...The giving of finger impression or of  specimen signature or of handwriting, strictly  speaking, is not ’to be a witness’...when an  accused person is called upon by the Court or  any other authority holding an investigation to  give his finger impression or signature or any  specimen of his handwriting, he is not giving  any testimony to the nature of a personal  testimony. The giving of a personal testimony  must depend upon his volition. He can make  any kind of statement or may refuse to make  any statement. But his finger impressions or  his handwriting, in spite of efforts at concealing  the true nature of it by dissimulation cannot  change their intrinsic character. Thus the  giving of finger impression or of specimen  writing or of signatures by an accused person,  though it may amount to furnishing evidence in  the larger sense, is not included within the  expression ’to be a witness’...

...They are only materials for comparison in  order to lend assurance to the Court that its  inference based on other pieces of evidence is  reliable..."                                   (Emphasis Supplied)

       This being the position in law, the argument  of the Petitioners pertaining to the violation of  Article 20(3) is not sustainable. It is meaningful to  look into Section 91 of Cr. PC that empowers a  criminal court as also a police officer to order any

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person to produce a document or other thing in  his possession for the purpose of any inquiry or  trial. (See: Shyamlal Mohanlal V. State of  Gujarat, AIR 1961 SC 1808, in this regard).  Moreover, this Section is only a step in aid for  further investigation and the samples so obtained  can never be considered as conclusive proof for  conviction. Consequently we uphold the  constitutional validity of Section 27.

Section 30:          Section 30 contains provision for the  protection of witness. It gives powers to the  Special Court to hold proceedings in camera and  to taking measures for keeping the identity of  witness secret.          Petitioners challenged the constitutional  validity of this Section by leveling the argument;  that the right to cross-examine is an important  part of fair trial and principles of natural justice  which is guaranteed under Article 21; that even  during emergency fundamental rights under  Article 20 and 21 cannot be taken away; that  Section 30 is in violation of the dictum in Kartar  Singh’s case (supra)  because it does not contain  the provision of disclosure of names and identities  of the witness before commencement of trial; that  fair trial includes the right for the defence to  ascertain the true identity of an accuser; that  therefore the same has to be declared  unconstitutional. Learned Attorney General  submitted that such provisions or exercise of such  powers are enacted to protect the life and liberty  of a person who is able and willing to give  evidence in prosecution of grave criminal offences;  that the Section is not only in the interest of  witness whose life is in danger but also in the  interest of community which lies in ensuring that  heinous offences like terrorist acts are effectively  prosecuted and punished; that if the witnesses are  not given immunity they would not come forward  to give evidence and there would be no effective  prosecution of terrorist offences and the entire  object of the Act would be frustrated; that cross- examination is not a universal or indispensable  requirement of natural justice and fair trial; that  under compelling circumstances it can be  dispensed with natural justice and fair trial can be  evolved; that the Section requires the Court to be  satisfied that the life of witness is in danger and  the reasons for keeping the identity of the witness  secret are required to be recorded in writing; that,  therefore, it is reasonable to hold that the Section  is necessary for the operation of the Act.          Section 30 of POTA is similar to Section 16 of  TADA, the constitutional validity of which was  upheld by this Court in Kartar Singh’s case  (supra) (see pages 683 - 689 of SCC). In order to  decide the constitutional validity of Section 30 we  don’t think it is necessary to go into the larger  debate, which learned Counsel for both sides have  argued, that whether right to cross-examine is  central to fair trial or not. Because right to cross- examination per se is not taken away by Section  30. This Section only confers discretion to the

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concerned Court to keep the identity of witness  secret if the life of such witness is in danger. We  cannot shy away from the unpleasant reality that  often witnesses do not come forward to depose  before Court even in serious cases. This  precarious situation creates challenges to our  criminal justice administration in general and  terrorism related cases in particular.  Witnesses do  not volunteer to give evidence mainly due to the  fear of their life. Ultimately, the non-conviction  affects the larger interest of community, which lies  in ensuring that the executors of heinous offences  like terrorist acts are effectively prosecuted and  punished. Legislature drafted Section 30 by taking  all these factors into account. In our view a fair  balance between the rights and interest of  witness, rights of accused and larger public  interest has been maintained under Section 30. It  is also aimed to assist the State in justice  administration and encourage others to do the  same under the given circumstances. Anonymity  of witness is not general rule under Section 30.  Identity will be withheld only in exceptional  circumstance when the Special Court is satisfied  that the life of witness is in jeopardy. Earlier this  Court has endorsed similar procedure. (See:  Gurbachan Singh V. State of Bombay, 1952  SCR 737, Hira Nath Mishra V. Principal,  Rajendra Medical College, 1973 (1) SCC 805,  A. K. Roy V. Union of India, 1982 (1) SCC 271).  While deciding the validity of Section 16 of TADA,  this Court quoted all these cases with approval.  (See also the subsequent decision in Jamaat-e- Islami Hind V. Union of India, 1995 (1) SCC  428.                   The need for the existence and exercise of  power to grant protection to a witness and  preserve his or her anonymity in a criminal trial  has been universally recognised.   Provisions of  such nature have been enacted to protect the life  and liberty of the person who is able and willing to  give evidence in support of the prosecution in  grave criminal cases.  A provision of this nature  should not be looked at merely from the angle of  protection of the witness whose life may be in  danger if his or her identity is disclosed but also in  the interest of the community to ensure that  heinous offences like terrorist acts are effectively  prosecuted and punished. It is a notorious fact  that a witness who gives evidence which is  unfavourable to an accused in a trial for terrorist  offence would expose himself to severe reprisals  which could result in death or severe bodily injury  or that of his family members.  If such witnesses  are not given appropriate protection, they would  not come forward to give evidence and there  would be no effective prosecution of terrorist  offences and the entire object of the enactment  may possibly be frustrated.   Under compelling  circumstances this can be dispensed with by  evolving such other mechanism, which complies  with natural justice and thus ensures a fair trial.

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       The observations made in this regard by this  Court in the decisions to which we have adverted  to earlier have been noticed by this Court in  Kartar Singh’s case (supra) and has upheld the  validity of a similar provision subject, of course, to  certain conditions which form part of Section 30  now.   The present position is that Section 30(2)  requires the court to be satisfied that the life of a  witness is in danger to invoke a provision of this  nature. Furthermore, reasons for keeping the  identity and address of a witness secret are  required to be recorded in writing and such  reasons should be weighty.   In order to safeguard  the right of an accused to a fair trial and basic  requirements of the due process a mechanism can  be evolved whereby the special court is obligated  to satisfy itself about the truthfulness and  reliability of the statement or disposition of the  witness whose identity is sought to be protected.  

       Our attention has been drawn to legal  position in USA, Canada, New Zealand, Australia  and UK as well as the view expressed in the  European Court of Human Rights in various  decisions.  However, it is not necessary to refer  any of them because the legal position has been  fully set out and explained in Kartar Singh and  provision of POTA in Section 30 clause (2) has  been modelled on the guidelines set out therein.   We may further notice that the effort of the court  has been to balance the right of the witness as to  his life and liberty and the right of community in  effective prosecution of heinous criminal offences  with the right of the accused to a fair trial.  This is  done by devising a mechanism or arrangement to  preserve anonymity of the witness when there is  an identifiable threat to the life or physical safety  of the witness or others whereby the court  satisfies itself about the weight to be attached to  the evidence of the witness. In some jurisdictions  an independent counsel has been appointed for  the purpose to act as amicus curie and after going  through the deposition evidence assist the court in  forming an opinion about the weight of the  evidence in a given case or in appropriate cases to  be cross-examined on the basis of the questions  formulated and given to him by either of the  parties. Useful reference may be made in this  context to the recommendations of the Law  Commission of  New Zealand.   

       The necessity to protect the identity of the  witness is not a factor that can be determined by  a general principle.  It is dependent on several  factors and circumstances arising in a case and,  therefore, the Act has left the determination of  such question to an appropriate case.

       Keeping secret the identity of witness,  though in the larger interest of public, is a  deviation from the usual mode of trial. In  extraordinary circumstances we are bound to take  this path, which is less travelled. Here the Special  Courts will have to exercise utmost care and  caution to ensure fair trial. The reason for keeping

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identity of the witness has to be well  substantiated. It is not feasible for us to suggest  the procedure that has to be adopted by the  Special Courts for keeping the identity of witness  secret. It shall be appropriate for the concerned  Courts to take into account all the factual  circumstances of individual cases and to forge  appropriate methods to ensure the safety of  individual witness. With these observations we  uphold the validity of Section 30.  

Section 32:         This Section made it lawful of certain  confessions made to police officers to be taken  into consideration.          Concerning the validity and procedural  difficulties that could arise during the process of  recording confessions the Petitioners submitted  that there is no need to empower the police to  record confession since the accused has to be  produced before the Magistrate within forty-eight  hours, in that case magistrate himself could record  the confession; that there is no justification for  extended time limit of forty eight hours for  producing the person before Magistrate; that it is  not clear in the Section whether the confession  recorded by the police officer will have the validity  after Magistrate has recorded the fact of torture  and has sent the accused for medical  examination; that it is not clear as to whether  both the confession before the police officer as  well as confession statement before the Magistrate  shall be used in evidence; that the Magistrates  cannot be used for mechanically putting seal of  approval on the confessional statements by the  police; that, therefore, the Section has to be  nullified. Validity of this Section was defended by  the learned Attorney General by forwarding the  arguments that the provisions relating to the  admissibility of confessional statements, which is  similar to that of Section 32 in POTA was upheld in  Kartar Singh’s case (supra); that the provisions  of POTA are an improvement of TADA by virtue of  enactment of Section 32(3) to 32(5); that the  general principles of law regarding the  admissibility of a confessional statement is  applicable under POTA; that the provision which  entails the Magistrate to test and examine the  voluntariness  of a confession and complaint of  torture is an additional safeguard and does not in  any manner inject any constitutional infirmity;  that there cannot be perennial distrust of the  police; that Parliament has taken into account all  the relevant factors in its totality and same is not  unjust or unreasonable.         At the outset it has to be noted that the  Section 15 of TADA that was similar to this Section  was upheld in Kartar Singh’s case (supra) (pages  664-683 of SCC). While enacting this Section  Parliament has taken into account of all the  guidelines, which were suggested by this Court in  Kartar Singh’s case (supra). Main allegation of  the Petitioners is that there is no need to empower  the police to record confession since the accused  has to be produced before the Magistrate within

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forty-eight hours in which case the Magistrate  himself could record the statement or confession.  In the context of terrorism the need for making  such a provision so as to enable Police officers to  record the confession was explained and upheld  by this Court in Kartar Singh’s case (supra)  (page 680 para 253 of SCC). We need not go into  that question at this stage. If the recording of  confession by police is found to be necessary by  Parliament and if it is in tune with the scheme of  law, then an additional safeguard under Section  32 (4) and (5) is a fortiori legal.  In our considered  opinion the provision that requires producing such  a person before the Magistrate is an additional  safeguard. It gives that person an opportunity to  rethink over his confession. Moreover, the  Magistrate’s responsibility to record the statement  and the enquiry about the torture and provision  for subsequent medical treatment makes the  provision safer. It will deter the police officers  from obtaining a confession from an accused by  subjecting him to torture.  It is also worthwhile to  note that an officer who is below the rank of a  Superintendent of Police cannot record the  confession statement. It is a settled position that  if a confession was forcibly extracted, it is a nullity  in law. Non-inclusion of this obvious and settled  principle does not make the Section invalid. (See :  Kartar Singh’s case (supra) page 678, para 248  - 249 of SCC). Ultimately, it is for the concerned  Court to decide the admissibility of the confession  statement. (See : Kartar Singh’s case (supra)  page 683, para 264 of SCC). Judicial wisdom will  surely prevail over irregularity, if any in the  process of recording confessional statement.  Therefore we are satisfied that the safeguards  provided by the Act and under the law is adequate  in the given circumstances and we don’t think it is  necessary to look more into this matter.  Consequently we uphold the validity of Section 32.  

Section 49:

       Section 49 mainly deals with procedure for  obtaining bail for an accused under POTA.          Petitioners’ main grievance about this Section  is that under Section 49(7) a Court could grant  bail only if it is satisfied that there are grounds for  believing that an accused ’is not guilty of  committing such offence’, since such a satisfaction  could be attained only after recording of evidence  there is every chance that the accused will be  granted bail only after minimum one year of  detention; that the proviso to Section 49(7),  which is not there under TADA, makes it clear that  for one year from the date of detention no bail  could be granted; that this Section has not  incorporated the principles laid down by this Court  in Sanjay Dutt’s case (supra) (at page 439 para  43-48 of SCC) wherein it is held that if a challan is  not filed after expiry of 180 days or extended  period, the indefeasible right of an accused to be  released on bail is ensured, provided that the  same is exercised before filing of challan; that the  prosecution is curtailing even this right under

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POTA. Therefore, the petitioners want us to make  the Section less stringent according to the settled  principles of law. Learned Attorney General  submitted that the provisions regarding bail are  not onerous nor do they impose any excessive  burden or restriction on the right of the accused;  that similar provisions are found in Section 37 of  the NDPS Act 1985 and in Section 10 of the UP  Dacoity Affected Areas Act; that on a true  construction of Section 49(6) and (7) it is not  correct to conclude that the accused cannot apply  for bail at all for a period of one year; that the  right of the accused to apply for bail during the  period of one year is not completely taken away;  that the stringent provision of bail under Section  49(7) would apply only for the first one year of  detention and after its expiry the normal bail  provisions under Cr.P.C. would apply; that there is  no dispute that the principle laid down by this  Court in D.K Basu V. State of West Bengal,  1997 (1) SCC 416, will apply; that in the light of  effective safeguards provided in the Act and  effective remedies against adverse orders there is  no frailty in Section 49.  

       Section 49 of the Act is similar to that of  Section 20 of TADA, constitutional validity of  which has been upheld by this Court in Kartar  Singh’s case (supra) (pages 691-710 of SCC).  Challenge before us is limited to the interpretation  of Section 49(6) and (7). By virtue of Section  49(8), the powers under Section 49 (6) and (7)  pertaining to bail is in addition to and not in  derogation to the powers under the Code or any  other law for the time being in force on granting of  bail. The offences under POTA are more complex  than that of ordinary offences. Usually the overt  and covert acts of terrorism are executed in a  chillingly efficient manner as a result of high  conspiracy, which is invariably linked with anti- national elements both inside and outside the  country. So an expanded period of detention is  required to complete the investigation. Such a  comparatively long period for solving the case is  quite justifiable. Therefore, the investigating  agencies may need the custody of accused for a  longer period. Consequently, Section 49 (6) and  (7) are not unreasonable. In spite of this, bail  could be obtained for an accused booked under  POTA if the ’court is satisfied that there are  grounds for believing that he is not guilty of  committing such offence’ after hearing the Public  Prosecutor. It is the general law that before  granting the bail the conduct of accused seeking  bail has to be taken into account and evaluated in  the background of nature of crime said to have  committed by him. That evaluation shall be based  on the possibility of his likelihood of either  tampering with the evidence or committing the  offence again or creating threat to the society.  Since the satisfaction of the Court under Section  49(7) has to be arrived based on the particular  facts and after considering the abovementioned  aspects, we don not think the unreasonableness  attributed to Section 49(7) is fair. (See: Kartar

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Singh’s case (supra) page 707, para 349-352 of  SCC).   

       Proviso to Section 49(7) reads as under:

"Provided that after the expiry of a period of  one year from the date of detention of the  accused for an offence under this Act, the  provisions of sub-section (6) of this Section  shall apply."

       It is contended that this proviso to Section  49(7) of POTA is read by some of the courts as a  restriction on exercise of power for grant of bail  under Section 49(6) of POTA and such power  could be exercised only after the expiry of the  period of one year from the date of detention of  the accused for offences under POTA.  If the  intention of the legislature is that an application  for bail cannot be made prior to expiry of one year  after detention for offences under POTA, it would  have been clearly spelt out in that manner in  Section 49(6) itself.  Sections 49(6) and 49(7) of  POTA have to be read together and the combined  reading of these two sections is to the effect that  Public Prosecutor has to be given an opportunity  of being heard before releasing the accused on  bail and if he opposes the application, the court  will have to be satisfied that there are grounds for  believing that he is not guilty of having committed  such offence.  It is by way of exception to Section  49(7) that proviso is added which means that  after the expiry of one year after the detention of  the accused for offences under POTA, the accused  can be released on bail after hearing the Public  Prosecutor under ordinary law without applying  the rigour of Section 49(7) of POTA.  It also  means that the accused can approach the court  for bail subject to conditions of Section 49(7) of  POTA within a period of one year after the  detention for offences under POTA.

Proviso to Section 49(7) provides that the  condition enumerated in sub-section (6) will apply  after the expiry of one-year.  There appears to be  an accidental omission or mistake of not including  the word ’not’ after the word ’shall’ and before the  word ’apply’. Unless such a word is included, the  provision will lead to an absurdity or become  meaningless.   Even otherwise, read appropriately,  the meaning of the proviso to Section 49(7) is that  an accused can resort to ordinary bail procedure  under the Code after that period of one year.  At  the same time, proviso does not prevent such an  accused to approach the Court for bail in  accordance with the provisions of POTA under  Section 49(6) and (7) thereof.   This interpretation  is not disputed by the learned Attorney General.    Taking into account of the complexities of the  terrorism related offences and intention of  Parliament in enacting a special law for its  prevention, we do not think that the additional  conditions regarding bail under POTA are  unreasonable. We uphold the validity of Section  49.

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       There is no challenge to any other provisions  of the Act.         In the result, these petitions stand dismissed  subject, however, to the clarifications that we  have set out above on the interpretation of the  provisions of the enactment while dealing with the  constitutionality thereof.  

W.P.(Crl.) 129/2002 :         A case was registered against the petitioner  under Section 13(1)(a) of the Unlawful Activities  Prevention Act, 1967, Section 21(2) and (3) of the  Prevention of Terrorism Act, 2002 (POTA) read  with Sections 109 and 120B of the Indian Penal  Code on 4.7.2002.  When the petitioner returned  to Chennai from Chicago on 11.7.2002, he was  arrested at the Chennai Airport and was produced  before a Judicial Magistrate, Madurai on  12.7.2002. He had been remanded.  He has been  detained in jail since then pursuant to the remand  order of the Judicial Magistrate, Madurai.  A  notification was issued constituting Special Court,  Chennai  at Poonamallee for trial of the offences  under POTA.  The petitioner was produced before  the Special Court on 7.8.2002 and he has been  continued to be remanded to jail from time to  time.  On 9.10.2002, his remand has been  extended beyond the period of 90 days.           In this case, though several questions have  been raised,  two questions have been specifically  urged, namely  : (1)     Whether Section 21(1) and (3) of the  Prevention of Terrorism Act, 2002 are  offending Article 19(1)(a) and 19(1)(c) of the  Constitution of India and therefore  unconstitutional?  (2)     Does the mere expression of sympathy for  Tamils in Sri Lanka for whom the Liberation  of Tigers of Tamil Eelam has become the  sole-representative recognised by the  International Community amount to support  to a terrorist organisation under the  Prevention of Terrorism Act, 2002 thereby  empower the State to curtail the personal  liberty?

       We have upheld the constitutional validity of  Section 21 of POTA in the decision pronounced by  us in Writ Petition (C) No. 389 of 2002 above and,  therefore, the first question does not survive for  consideration.         So far as the second question is concerned,   we have heard Shri F.S. Nariman and Shri Anil B.  Divan, learned senior counsel appearing for the  petitioner, apart from Shri Rajinder Sachhar and  Shri B.S. Malik, the learned senior counsel  appearing for the petitioner in connected matters,  on the interpretation of Section 21 of POTA.  Shri  P.P. Rao, appearing for the State of Tamil Nadu,   has made elaborate submissions and adverted to  various affidavits filed by the Union of India.   However, it is not necessary for us to examine any  of these aspects in these proceedings. We have  carefully considered the arguments advanced by

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the learned counsel and that of the learned  Attorney General for India on this aspect of the  matter.   We think, the proper course that has to  be adopted in a case of this nature where a  criminal case has already been lodged and the  same is pending consideration before the Special  Court, it would not be appropriate for us to  express our views on the question of facts arising  in this case.  We are sure that the Special Court  will decide the matter in the light of decision  pronounced by us in Writ Petition (C) No. 389 of  2002 above.         The writ petition is disposed of with aforesaid  observations.

W.P.(Crl.) 28/2003  :         The petitioner in this writ petition seeks for  declaration that Section 21(2) and the proviso to  Section 49(6) and 49(7) of POTA are illegal and  ultra vires the Constitution of India.           Inasmuch as we have upheld the  constitutional validity of Section 21(2) and proviso  to Section 49(6) and 49(7) of POTA in the  judgment pronounced by us in Writ Petition (C)  No. 389 of 2002 above, this writ petition is  dismissed.  

W.P.(Crl.) 48/2003   :

       In this writ petition, apart from challenging  the constitutional validity of Sections 1(4), 3 to 9,  14, 18 to 24, 26, 27, 29 to 33, 36 to 53 which has  been upheld by us in the judgment pronounced by  us in Writ Petition (C) No. 389 of 2002 above, the  constitutional validity of Entry 21 of the Schedule  to POTA is also challenged.   

       On that aspect no specific arguments have  been addressed by any of the parties.  This matter  will have to be heard separately and hence, this  writ petition is de-linked from other matters.                                    

Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622# 4051#P. VENKATARAMA REDDI # Dr. AR. LAKSHMANAN. ###                                                                 Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey and Ors.                      

#State of Bihar                                          #2003-11-25#25623# 104-106#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                              Appeal (civil)#Appeal (civil)  10906 of 1996#1996#Shanti Kumar Panda                                          #Shakutala Devi                                          #2003-11-03#25624# 10906#R.C. LAHOTI # ASHOK BHAN. ###                                                                                                         Appeal (civil)#Appeal (civil)  11483 of 1996#1996#Amrendra Pratap Singh                     

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#Tej Bahadur Prajapati & Ors.                       #2003-11-21#25625# 11483#R.C. LAHOTI # ASHOK BHAN. ###                                                                                     Appeal (civil)#Appeal (civil)  9130 of 2003#2003#Ameer Trading Corporation Ltd.              

#Shapoorji Data Processing Ltd.                          #2003-11-18#25626# 9130#CJI# S.B. Sinha # AR. Lakshmanan. ##                                                                            Appeal (civil)#Appeal (civil)  14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.R s., etc. etc.                      #State of Uttar Pradesh                                    #2003-11-28#25627# 14178-14184#Do raiswamy Raju # Arijit Pasayat. ### Appeal (crl.)#Appeal (crl.)  1968 of 1996#1996#Goa Plast (P) Ltd.                                                   #Chico Ursula D’Souza                                                   #2003-11-20#25628# 1968#B.P. Singh # Dr. AR. Lakshmanan ###                                                                           Writ Petition (crl.)#Writ Petition (crl.)  199 of 2003#2003#Ashok Kumar Pandey #The State of West Bengal #2003-11-18#25629# 199#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                          Appeal (crl.)#Appeal (crl.)  20 of 2003#2003#Surendra Paswan                                          #State of Jharkhand                                              #2003-11-28#25630# 20#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                                        Appeal (crl.)#Appeal (crl.)  278 of 1997#1997#Vidyadharan                                                     #State of Kerala                                                         #2003-11-14#25631# 278#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                                           Appeal (crl.)#Appeal (crl.)  292 of 1997#1997#State of Madhya Pradesh. #Awadh Kishore Gupta and Ors.                    #2003-11-18#25632# 292#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                          ###State of Punjab & Anr.                                        #M/s Devans Modern Brewaries Ltd. & Anr.                         #2003-11-20#25633##CJI.# R.C. Lahoti # Dr. AR. Lakshmanan. ##                                                                                                                        Appeal (crl.)#Appeal (crl.)  331 of 1997#1997#Shriram                                                         #State of Madhya Pradesh                                         #2003-11-24#25634# 331#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                                        Appeal (civil)#Appeal (civil)  3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P.  & Ors.                            #Toddy Tappers Coop. Society, Marredpally  & Ors.          #2003-11-17#25635# 3630-3631#CJI. #Dr. AR. Lakshmanan ###              Appeal (crl.)#Appeal (crl.)  371-372 of 2003#2003#Ram Dular Rai & Ors.                                #State of Bihar                                          #2003-11-27#25636# 371-372#S.B. Sinha. ####                                                                                                                  Appeal (civil)#Appeal (civil)  4075-4081 of 1998#1998#Nair Service Society                                                  #Dist. Officer, Kerala Public Service Commission & Ors.  #2003-11-17#25637# 4075-4081#CJI. # Dr. AR. Lakshmanan. ###                                         

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Appeal (civil)#Appeal (civil)  4698-4700 of 1994#1994#State of U.P. & Ors.                                          #Lalji Tandon (Dead)                                            #2003-11-03#25638# 4698-4700#R.C. LAHOTI #  ASHOK BHAN  ###                                            Appeal (crl.)#Appeal (crl.)  506 of 1997#1997#State of Karnataka                                              #Puttaraja                                                       #2003-11-27#25639# 506#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                                           Appeal (crl.)#Appeal (crl.)  519-521 of 2003#2003#Goura Venkata Reddy                                Vs. #State of Andhra Pradesh                                         #2003-11-19#25640# 519-521#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                  Appeal (crl.)#Appeal (crl.)  530-531 of 2003#2003#Bhargavan & Ors.                                            #State of Kerala                                                 #2003-11-17#25641# 530-531#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                                                                                Appeal (civil)#Appeal (civil)  7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.                                 #Arnavaz Rustom Printer & Anr.                              #2003-11-24#25642# 7371#R.C. LAHOTI # ASHOK BHAN. ###                                                                          Appeal (civil)#Appeal (civil)  9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad,  District, Andhra Pradesh        #Nookala Rajamallu and Ors.                              #2003-11-21#25643# 9205-07#DORAISWAMY RAJU # ARIJIT PASAYAT. ###                                        Transfer Petition (crl.)#Transfer Petition (crl.)  77-78 of 2003#2003#K. Anbazhagan                                                   #The Superintendent of Police & ors.     #2003-11-18#25644# 77-78#S.N. VARIAVA # H.K. SEMA. ###                                                  Appeal (civil)#Appeal (civil)  7868 of 1995#1995#ITW Signode India Ltd.                               #Collector of Central Excise                     #2003-11-19#25645# 7868#CJI# S.B. Sinha # Dr. AR. Lakshmanan. ##                                                                                  Appeal (civil)#Appeal (civil)  857 of 1998#1998#Shyam Singh #Daryao Singh (dead) by Lrs. & Ors               #2003-11-19#25646# 857#Shivaraj V. Patil # D.M. Dharmadhikari. ###                                                                                             Appeal (civil)#Appeal (civil)  3630-3631 of 2003#2003#Prohibition & Excise Supdt. A.P. & Ors .                #Toddy Tappers Coop. Society, Marredpally & Ors.                                             

#2003-11-17#25647# 3630-3631#S.B. Sinha          ####                                                      Appeal (civil)#Appeal (civil)  62-65 of 1999#1999#Pramod K. Pankaj                                            #State of Bihar and Ors.                                           #2003-11-20#25648# 62-65#CJI# # S.B. Sinha. ##                                                                                                  Appeal (civil)#Appeal (civil)  8232 of 1996#1996#Hindustan Lever & Anr.                                               #State of Maharashtra & Anr.                                     #2003-11-18#25649# 8232#R.C. Lahoti # Ashok Bhan. ###                                                                                        Appeal (civil)#Appeal (civil)  5337-5339 of 1999#1999#Manager, Nirmala Senior, Secondary Sch

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ool, Port Blair          #N.I. Khan & Ors.                                                #2003-11-21#25650# 5337-5339#SHIVARAJ V. PATIL # ARIJIT PASAYAT. ###                                                     Appeal (civil)#Appeal (civil)  9131 of 2003#2003#Rekha Mukherjee                                                      #Ashish Kumar Das & Anr.                                         #2003-11-18#25651# 9131#CJI# S.B. Sinha # Dr. AR. Lakshmanan. ##                                                                                         Appeal (civil)#Appeal (civil)  3130 of 2002#2002#Ashan Devi & Anr.                                    #Phulwasi Devi & Ors.            #2003-11-19#25652# 3130#Shivaraj V. Patil # D.M. Dharmadhikari. ###                                                                                        Appeal (civil)#Appeal (civil)  7096 of 2000#2000#Smt. Lila Ghosh (Dead) through LR, Shri Tap as Chandra Roy #The State of West Bengal                #2003-11-18#25653# 7096#S. N. Variava # H. K. Sema. ###                                                                 ###Harinagar Sugar Mills Ltd.                    #State of Bihar & Ors.                           #2003-11-19#25654##Brijesh Kumar # Arun Kumar. ###                                                                                                                                         Appeal (crl.)#Appeal (crl.)  115-120 of 2002#2002#R. Sai Bharathi                                                     #J. Jayalalitha & Ors.                                           #2003-11-24#25655# 115-120#S. RAJENDRA BABU  # P. VENKATARAMA REDDI ###                                                                                 Appeal (civil)#Appeal (civil)  9136-9137 of 2003#2003#M/s.Sathyanarayana Brothers (P) Ltd.          #Tamil Nadu Water Supply & Drainage Board  #2003-11-18#25656# 9136-9137#Brijesh Kumar # (Arun Kumar. ###