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CASE NO.: Appeal (crl.)  602 of 2004

PETITIONER: Vijaykumar Baldev Mishra @ Sharma

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 18/05/2007

BENCH: Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      I have perused the judgment of my learned brother Hon’ble S.B.  Sinha, J. in this case.  The facts of the case have been narrated in the  judgment of my learned brother and hence I am not repeating the same.   I  entirely agree with the reasoning and conclusion of my learned brother.

2.      However, there is an important constitutional point which though not  taken in the Criminal Appeal before us, is of such great importance that I  wish to express my opinion on the same.

3.      The Terrorist and Disruptive Activities (Prevention) Act, 1987  (hereinafter referred to as "The Act") stated initially in Section 1(4) thereof  that the said Act will remain in operation for a period of two years from  24.5.1987, but thereafter by amendments from time to time the period of two  years was extended to four years, then six years and lastly for eight years.

4.      Thus Section 1(4) of the Act as it stood ultimately read as follows : "It shall remain in force for a period of [eight  years] from the 24th day of May, 1987, but its expiry  under the operation of this sub-section shall not affect \026

(a)     the previous operation of, or anything  duly done or suffered under this Act  or any rule made thereunder or any  order made under any such rule, or

(b)     any right, privilege, obligation or  liability acquired, accrued or incurred  under this Act or any rule made  thereunder or any order made under  any such rule, or

(c)     any penalty, forfeiture or punishment  incurred in respect of any offence  under this Act or any contravention of  any rule made under this Act or of  any order made under any such rule,  or

(d)     any investigation, legal proceeding or  remedy in respect of any such right,  privilege, obligation, liability, penalty,  forfeiture or punishment as aforesaid  

and any such investigation, legal proceeding or remedy

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may be instituted, continued or enforced and any such  penalty, forfeiture or punishment may be imposed as if  this Act had not expired."    

5.      There was no further extension of the period for which the Act  remained in force, and hence the Act automatically came to an end on  24.5.1995.

6.      However, Section 1(4) of the Act also stated that the expiry of the  aforesaid period of the Act would not affect any right or liability incurred  when the Act was in force, and legal proceedings can be instituted or  continued as if the Act has not expired, provided the act in question was  committed when the Act was in force.  It is under this provision that  prosecutions under TADA have been continued although the life of the Act  has expired.

7.      In my opinion the provision that legal proceedings can be instituted or  continued even after the Act has expired, is clearly violative of Article 14 of  the Constitution of India.  We may test the constitutional position by taking  a hypothetical case.  Supposing a law is made which makes an act  committed by a person a crime on one day, but the same law says that the  same act will not be a crime if committed on the next day.  Surely such a law  will be violative of Article 14 unless there is very strong and rational basis  for such classification and differentiation.

8.      From the common sense point of view too, it does not stand to reason  that a certain act will be treated as a crime if committed within one time  period, but it will not be a crime if it is committed thereafter.

9.      Of course, if there is good rational ground for making such a  differentiation, Article 14 may not be violated but then it will be for the State  Authorities to justify such a classification on some reasonable and rational  basis, failing which it will clearly violate Article 14 of the Constitution.

10.     In the present case, Section 1(4) of the Act says that the offence  created by Section 3 of the Act will be punishable as a crime if the act was  committed on or before 24.5.1995, but if the same act was committed after  24.5.1995, it will not be a crime.  To my mind this is ex facie violation of  Article 14 of the Constitution and hence Section 1(4) of Act to the extent it  says that acts mentioned in Section 3 committed on or before 24.5.1995 can  still be treated as a crime and punished under the TADA, though the same  act committed after 24.5.1995 cannot, is in my opinion clearly ultra vires  Article 14 and hence is liable to be struck down as unconstitutional.   

11.     Since this point has not been raised in the appeal I am not giving any  final opinion in the matter, but the point, to my mind, is of such a vital and  wide constitutional importance that I thought it fit to express my opinion on  the same, so that this opinion can be considered in other cases where  prosecutions under TADA are going on or where convictions have been  made in relation to the offences under Section 3 alleged to have been  committed before 24.5.1995.

12.     As regards those who have already undergone the entire sentence for  which they were convicted under TADA obviously nothing can be done, but  regarding those who have undergone only part of the sentence or regarding  those who are facing prosecution or investigation under TADA such  prosecution or investigation are liable to be quashed in view of the opinion  expressed above.   

13.     It is of course made clear that the above opinion has nothing to do  with Article 20(1) of the Constitution, which deals with ex post facto laws.

14.     With the above observation the appeal is allowed and the impugned  order is set aside.  The appellant is directed to be released forthwith unless

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required in some other case.