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CASE NO.: Appeal (crl.)  706 of 2007

PETITIONER: Pulin Das @ Panna Koch

RESPONDENT: State of Assam

DATE OF JUDGMENT: 22/02/2008

BENCH: P.P. Naolekar & P. Sathasivam

JUDGMENT: JUDGMENT

CRIMINAL APPEAL NO. 706 OF 2007 WITH CRIMINAL APPEAL NO. 836 OF 2007 Mahendra Saikia @ Dilip Saikia                .... Appellant (s)                 Versus State of Assam                                                .... Respondent(s)

P. Sathasivam, J.

1)       These appeals, under Section 19 of the Terrorist and  Disruptive Activities (Prevention) Act, 1987 (hereinafter  referred to as "the TADA Act") are directed against the common  judgment dated 19.04.2007 of the Designated Judge at  Assam, Gauhati in TADA Sessions Case No. 1 of 1996 whereby  the Designated Judge convicted Pulin Das @ Panna Koch \026  appellant in Criminal Appeal No.706 of 2007 and Mahendra  Saikia @ Dilip Saikia \026 appellant in Criminal Appeal No. 836 of  2007 for offences under Section 3(2)(ii) of the TADA Act and  sentenced them to undergo rigorous imprisonment for five  years and to pay a fine of Rs.500/-, in default further R.I. for  another six months.     2)      Brief facts, in a nutshell, are as follows: On the night of 08.12.1993, on secret information, the police  party under the leadership of S.P. Sonitpur and S.D.P.O.,  Bishwanath Chariali raided the house of Uday Chetry.  It was  alleged that the extremist fired upon the police party and the  police party also fired in self-defence and as such there was  exchange of fire from both sides and thereafter Pulin Das @  Panna Koch\026 appellant in Crl.A.No.706 of 2007 and Mahendra  Saikia @ Dilip Saikia \026 appellant in Crl.A. No.836 of 2007 were  apprehended and arms and ammunitions were recovered from  their possession.  On the basis of the above incident, an F.I.R.  No.187/1993 was recorded and the police registered a case  under Sections 3/4/5 of the TADA Act.  On 17.12.1995,  Charge Sheet No.101 of 1995 in FIR No.187/1993 was filed  against both the accused. On 30.08.2006, statements of the  appellants-accused were recorded under Section 313 of the  Criminal Procedure Code.  The prosecution examined nine  witnesses in support of its case and exhibited the seizure list  (Ex.1), the FIR (Ex.2), the sketch map(Ex.3), the expert report  (Ex.4), prosecution sanction(Ex.5) and the charge sheet (Ex.6)  and also exhibited the seized arms and ammunitions (Mat.  Ex.1-4).   The Designated Court, Assam, Gauhati convicted the  appellants herein under Section 3(2)(ii) of TADA and sentenced  each of them to undergo rigorous imprisonment for five years  and to pay a fine of Rs.500/-, in default further rigorous  imprisonment for another six months.  However, the

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Designated Court acquitted the accused persons under  Section 5 of the TADA Act as there was no evidence available  for possession of unauthorized arms and ammunition.  Being  aggrieved by the said judgment, the appellants preferred  separate appeals before this Court.   3)      Heard Mr. Nitin Sangra, learned counsel, for the  appellant in Criminal Appeal No.706 of 2007 and Mr. Vijay  Hansaria, learned senior counsel, for the appellant in Criminal  Appeal No.836 of 2007 and Mr. Avijit Roy, learned counsel,  appearing for the State of Assam. 4)      Since both the appellants/accused were convicted only  under Section 3(2)(ii) of the TADA Act, it is useful to refer to  the said provision. "3. Punishment for terrorist acts .\027 (1) Whoever with  intent to overawe the Government as by law established or to  strike terror in the people or any section of the people or to  alienate any section of the people or to adversely affect the  harmony amongst different sections of the people does any  act or thing by using bombs, dynamite or other explosive  substances or inflammable substances or firearms or other  lethal weapons or poisons or noxious gases or other  chemicals or by any other substances (whether biological or  otherwise) of a hazardous nature in such a manner as to  cause, or as is likely to cause, death of, or injuries to, any  person or persons or loss of, or damage to, or destruction of,  property or disruption of any supplies or services essential to  the life of the community, or detains any person and  threatens to kill or injure such person in order to compel the  Government or any other person to do or abstain from doing  any act, commits a terrorist act.  (2) Whoever commits a terrorist act, shall,\027  ( i ) if such act has resulted in the death of any person, be  punishable with death or imprisonment for life and shall also  be liable to fine;  ( ii ) in any other case, be punishable with imprisonment for  a term which shall not be less than five years but which may  extend to imprisonment for life and shall also be liable to  fine."  5)      In Kartar Singh vs. State of Punjab, (1994) 3 SCC 569,  the legality and the efficaciousness of Sections 3 and 4 were  assailed on the following grounds, namely,- (1)     These two sections cover the acts which constitute  offences under ordinary laws like the Indian Penal  Code, Arms Act and Explosive Substances Act; (2)     There is no guiding principle laid down when the  executive can proceed under the ordinary laws or  under this impugned Act of 1987; and  (3)     This Act and Sections 3 and 4 thereof should be  struck down on the principle laid down in State of  W.B. vs. Anwar Ali Sarkar, AIR 1952 SC 75 and  followed in many other cases including A.R.  Antulay vs. Union of India and Ors., (1988)          2 SCC 764. While upholding the validity of Sections 3 and 4, the  Constitution Bench laid down that the Act tends to be very  harsh and drastic containing the stringent provisions and  provides minimum punishments and to some other offences  enhanced penalties also. The provisions prescribing special  procedures aiming at speedy disposal of cases, departing from  the procedures prescribed under the ordinary procedural law  are evidently for the reasons that the prevalent ordinary  procedural law was found to be inadequate and not  sufficiently effective to deal with the offenders indulging in  terrorist and disruptive activities, secondly that the incensed  offences are arising out of the activities of the terrorists and

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disruptionists which disrupt or are intended to disrupt even  the sovereignty and territorial integrity of India or which may  bring about or support any claim for the cession of any part of  India or the secession of any part of India from the Union, and  which create terror and a sense of insecurity in the minds of  the people. Further the Legislature being aware of the  aggravated nature of the offences have brought this drastic  change in the procedure under this law so that the object of  the legislation may not be defeated and nullified.  6)      In Hitendra Vishnu Thakur and Others vs. State of  Maharashtra and Others, (1994) 4 SCC 602, while  considering Section 3(1) and (2), two-Judge Bench of this  Court basing reliance on Kartar Singh case (supra),  Usmanbhai Dawoodbhai Memon & Ors. vs. State of  Gujarat, (1988) 2 SCC 271 and Niranjan Singh Karam  Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya &  Ors., (1990) 4 SCC 76 held thus:

"11\005. \005 \005 Thus, unless the Act complained of falls strictly  within the letter and spirit of Section 3(1) of TADA and is  committed with the intention as envisaged by that section by  means of the weapons etc. as are enumerated therein with  the motive as postulated thereby, an accused cannot be tried  or convicted for an offence under Section 3(1) of TADA. When  the extent and reach of the crime committed with the  intention as envisaged by Section 3(1), transcends the local  barriers and the effect of the criminal act can be felt in other  States or areas or has the potential of that result being felt  there, the provisions of Section 3(1) would certainly be  attracted. Likewise, if it is only as a consequence of the  criminal act that fear, terror or/and panic is caused but the  intention of committing the particular crime cannot be said  to be the one strictly envisaged by Section 3(1), it would be  impermissible to try or convict and punish an accused under  TADA. The commission of the crime with the intention to  achieve the result as envisaged by the section and not merely  where the consequence of the crime committed by the  accused create that result, would attract the provisions of  Section 3(1) of TADA. Thus, if for example a person goes on a  shooting spree and kills a number of persons, it is bound to  create terror and panic in the locality but if it was not  committed with the requisite intention as contemplated by  the section, the offence would not attract Section 3(1) of  TADA. On the other hand, if a crime was committed with the  intention to cause terror or panic or to alienate a section of  the people or to disturb the harmony etc. it would be  punishable under TADA, even if no one is killed and there  has been only some person who has been injured or some  damage etc. has been caused to the property, the provisions  of Section 3(1) of TADA would be squarely attracted. Where  the crime is committed with a view to overawe the  Government as by law established or is intended to alienate  any section of the people or adversely affect the harmony  amongst different sections of the people and is committed in  the manner specified in Section 3(1) of TADA, no difficulty  would arise to hold that such an offence falls within the  ambit and scope of the said provision\005\005.  12. Of late, we have come across some cases where the  Designated Courts have charge-sheeted and/or convicted an  accused person under TADA even though there is not even  an iota of evidence from which it could be inferred, even  prima facie , let alone conclusively, that the crime was  committed with the intention as contemplated by the  provisions of TADA, merely on the statement of the  investigating agency to the effect that the consequence of the

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criminal act resulted in causing panic or terror in the society  or in a section thereof. Such orders result in the misuse of  TADA. Parliament, through Section 20-A of TADA has clearly  manifested its intention to treat the offences under TADA  seriously inasmuch as under Section 20-A(1),  notwithstanding anything contained in the Code of Criminal  Procedure, no information about the commission of an  offence under TADA shall even be recorded without the prior  approval of the District Superintendent of Police and under  Section 20-A(2), no court shall take cognisance of any  offence under TADA without the previous sanction of the  authorities prescribed therein. Section 20-A was thus  introduced in the Act with a view to prevent the abuse of the  provisions of TADA.  13. We would, therefore, at this stage like to administer a  word of caution to the Designated Courts regarding invoking  the provisions of TADA merely because the investigating  officer at some stage of the investigation chooses to add an  offence under same (sic some) provisions of TADA against an  accused person, more often than not while opposing grant of  bail, anticipatory or otherwise. The Designated Courts  should always consider carefully the material available on  the record and apply their mind to see whether the  provisions of TADA are even prima facie attracted.  15. Thus, the true ambit and scope of Section 3(1) is that no  conviction under Section 3(1) of TADA can be recorded  unless the evidence led by the prosecution establishes that  the offence was committed with the intention as envisaged by  Section 3(1) by means of the weapons etc. as enumerated in  the section and was committed with the motive as postulated  by the said section. Even at the cost of repetition, we may  say that where it is only the consequence of the criminal act  of an accused that terror, fear or panic is caused, but the  crime was not committed with the intention as envisaged by  Section 3(1) to achieve the objective as envisaged by the  section, an accused should not be convicted for an offence  under Section 3(1) of TADA. To bring home a charge under  Section 3(1) of the Act, the terror or panic etc. must be  actually intended with a view to achieve the result as  envisaged by the said section and not be merely an  incidental fall out or a consequence of the criminal activity.  Every crime, being a revolt against the society, involves some  violent activity which results in some degree of panic or  creates some fear or terror in the people or a section thereof,  but unless the panic, fear or terror was intended and was  sought to achieve either of the objectives as envisaged in  Section 3(1), the offence would not fall stricto sensu under  TADA. Therefore, as was observed in Kartar Singh case by  the Constitution Bench   : (SCC p. 759, para 451)  "Section 3 operates when a person not only intends to  overawe the Government or create terror in people etc.  but he uses the arms and ammunition which results  in death or is likely to cause death and damage to  property etc. In other words, a person becomes a  terrorist or is guilty of terrorist activity when intention,  action and consequence all the three ingredients are  found to exist."  

7)      In State through Superintendent of Police, CBI/SIT  vs. Nalini and Others, (1999) 5 SCC 253, three-Judge Bench  of this Court held thus: 544.  "Under Section 3 of TADA in order there is a  terrorist act three essential conditions must be present  and these are contained in sub-section (1) of Section 3 \026  (1) criminal activity must be committed with the

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requisite intention or motive, (2) weapons must have  been used, and (3) consequence must have ensued."

8)      In the light of the language used and interpreted by this  Court in various decisions, it is clear from Section 3(1) that  whoever with intent (i) to overawe the Government as by law  established; or (ii) to strike terror in the people or any section  of the people; or (iii) to alienate any section of the people; or (iv)  to adversely affect the harmony amongst different sections of  the people, does any act or things by using (a) bombs or  dynamite, or (b) other explosive substances, or (c) inflammable  substances, or (d) firearms, or (e) other lethal weapons, or (f)  poisons or noxious gases or other chemicals, or (g) any other  substances (whether biological or otherwise) of a hazardous  nature in such a manner as to cause or as is likely to cause (i)  death, or (ii) injuries to any person or persons, (iii) loss of or  damage to or destruction of property, or (iv) disruption of any  supplies or services essential to the life of the community, or  (v) detains any person and threatens to kill or injure such  person in order to compel the Government or any other person  to do or abstain from doing any act, commits a ’terrorist act’  punishable under the said Section.   9)      In view of the same, an activity which is sought to be  punished under Section 3(1) of TADA has to be such which  cannot be classified as a mere law and order problem or  disturbance of public order or disturbance of even tempo of  the life of the community of any specified locality but is of the  nature which cannot be tackled as an ordinary criminal  activity under the ordinary penal law by the normal law  enforcement agencies because the intended extent and reach of  the criminal activity of the ’terrorist’ is such which travels  beyond the gravity of the mere disturbance of public order  even of a ’virulent nature’ and may at times transcend the  frontiers of the locality and may include such anti-national  activities which throw a challenge to the very integrity and  sovereignty of the country in its democratic polity.   The  Designated Court must not act mechanically and record  conviction without examining whether or not from the  evidence led by the prosecution an offence under Section 3 (1)  is made out. 10)     Though the appellants/accused were charged under  Section 5 for possession of arms and ammunitions along with  Section 3(1) and (2), since the Designated Court itself  acquitted them in respect of offence under Section 5, in the  absence of appeal by the State there is no need to consider the  same. 11)  Now, let us consider whether prosecution has established  the charge under Section 3(2) (ii) of the TADA Act.  Before  going into the oral evidence examined on the side of the  prosecution in support of their claim, since learned counsel  appearing for the respondent/State insisted us to see the  contents of charge-sheet (Annexure 3), we verified the same.   The written ejahar received from the complainant has been  treated as FIR.  The following materials available under clause  7 of the charge-sheet read thus:- "The fact of the case is that on 8.12.93 on secret  information, it is known that some ULFA outfit  members have taken shelter in the house of Uday  Chetry situated at Christian Pura under Dhekiajuli P.S.   Accordingly, the said house was gheroed by the outfit  members.  Thereafter the outfit members (1) Pulin Das  @ Panna Koch, (2) Mohendra Saikia @ Dilip Saikia were  arrested.  From their possession, one revolver, one 303  rifle, one stand gun and some cartridges were recovered.   Be it mentioned while they were nabbed, they opened

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fire upon police for which there were exchange of fire  from both sides.  Accordingly, a case under Sections 3,  4 and 5 of TADA Act was registered and started  investigation." The charge-sheet proceeds that the accused are ULFA outfit  members.  In order to prove the charge against the accused  persons, the prosecution has examined as many as nine  witnesses.        12)     P.W.1 - Abdul Rahman, a Constable, who proceeded  along with the other members of the police party to  Christianbasti has not stated anything about the accused  particularly their activities.  He merely stated that "police  arrested two inmates of that house and seized some arms and  ammunitions". In the cross-examination, he admitted that he  was away from the house and did not see who made the firing  and he did not know whether any gun was fired or not.  He  also admitted that he did not know whether any arms and  ammunitions or any other articles were seized from the  accused persons. 13)     Nandaraj Sharma, one of the police personnel, who  visited the house of P.W. 5 was examined as P.W.2.  He mainly  referred about possession of arms and ammunitions in the  residence where the accused were apprehended.  In the cross- examination, he stated that 6/7 empty cartridges were seized  from the place of occurrence.  He further deposed that there  were five or six persons inside the house where the accused  persons were arrested and there were also women in that  house.  According to him, he did not know who fired from  inside the house.  He also did not whisper a word about the  character and activities of the accused.  14)     Another police personnel by name Phuleswar Konwer was  examined as P.W.3.  Though he furnished more details about  the occurrence particularly gun shot from the house, over- powering by the police personnel, entering the house,  apprehending the two accused and seizing arms and  ammunitions and also identified both the accused in the court  when he was examined, he also did not say anything about  either banned organization (ULFA) or the accused and their  activities.  On the other hand, he fairly admitted that he did  not know whether the arrested accused persons belonged to  any banned organization.  In other words, even the prime  witness of prosecution did not whisper anything about the  banned organization (ULFA) their connection and unlawful  activities. 15)     Next witness one Phuleswar Das who is also one of the  police personnel was examined as P.W.4.  Though he  mentioned that he heard some firing at the place of  occurrence, he did not say anything about the accused and  their activities. 16)     Shri Uday Chetry, resident of the house in question was  examined as P.W.5.  According to him, on 08.12.1993, after  attending a kirtan party, he returned home at 10 p.m. His wife  told him that two guests have come and they are sleeping after  taking food.  He also returned to bed after food.  The following  statement made by him before Court is relevant and the same  is reproduced hereunder:- "At about 12.30 A.M. midnight, I heard the sound of  firing in the house.  Out of fear we did not go out.   Thereafter police called us.  Police showed us some  arms and disclosed that they recovered it from two  ULFA men."

Except the above statement, he did not say anything about the  accused persons and their activities.   17)     P.W.6, Om Chetry, who is none else than the brother of

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P.W.5. deposed that he lives with his brother Uday Chetry,  and is residing in the same house.  Like P.W.5, he also  deposed that at mid-night, he heard the sound of firing, woke  up and both of them were called by the police.  He also  deposed that from police we came to know that both the  guests are members of ULFA.  18)     As rightly pointed out by learned counsel appearing for  the appellants/accused though the prosecution has claimed  that P.W.5 and P.W.6 were important witnesses, their evidence  clearly show that they did not know about the activities of the  accused persons particularly whether they are members of  ULFA.  Both of them have stated that from the police only they  came to know that both are members of ULFA.  It is clear that  they heard the above information about the accused persons  from the police.  In such situation and particularly in the light  of the charge against the accused, it is but proper on the part  of the prosecution to put-forth reliable and acceptable  evidence/material to show that the accused were members of  ULFA which is a banned organization.  Apart from the above  witnesses, the prosecution has examined two more witnesses  in support of their case.   19)     One Durga Mohan Brahma, Inspector of Police, has been  examined as P.W.7. His entire evidence is available from pages  39-41 of the paper-book.  We scanned the same.  Nowhere he  mentioned anything about the activities of the accused and  ULFA.  His evidence is also not helpful to the prosecution.  

20)     The next witness examined on the side of the prosecution  is P.W.8, Bhadra Kanta Buragobain. He has nothing to do with  the charge framed since according to him, he examined arms  and ammunitions on 15.12.1995 though seized on  08.12.1993.  We have already referred to the fact that the  Designated Court itself acquitted the accused persons from  the charge under Section 5 of the Act.   21)     The last witness examined on the side of the prosecution  was P.W.9, namely, Jogesh Barman.  He was, at the relevant  time, working as D.S.P. H.Q. at Tezpur.  According to him, he  received an order from S.P. Sonitpur for completion of the  investigation of the case.  He further deposed that after going  through the materials from the CD, he submitted charge-sheet  against both the accused persons.  Though P.W.9 is a D.S.P.  Senior Officer of the District, he also did not whisper about  ULFA, the connection of the accused persons with the said  organization and their activities etc.   

22)     In a case of this nature, particularly, in the light of the  stringent provisions as provided in sub-section (1) of Section 3  as well as Section 20A which mandates that no information  about the commission of an offence under this Act shall be  recorded by the police without prior approval of the D.S.P, and  no court shall take cognizance of any offence under this Act  without previous sanction of the Inspector General of Police or  Commissioner of Police, we are of the view that P.W.9 D.S.P.  ought to have explained all the details about the ULFA  organization its activities and the alleged connection of the  accused persons.  It is the bounden duty of the prosecution to  examine highest police officer of the district, namely,  Superintendent of Police or equivalent officer about the above- mentioned relevant materials.  We have already highlighted  the relevant ingredients and conditions to be fulfilled before  initiating prosecution under Section 3(1) of the TADA Act.   Though most of the prosecution witnesses adverted to seizure  of arms and ammunitions and the accused were charged for  an offence under Section 5 which speaks about possession of  unauthorized arms etc. in specified areas, the Designated

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Court acquitted them on the said charge and admittedly the  State has not preferred any appeal.   23)     In view of the above discussion and in light of strict  compliance to be followed to attract Section 3(1), the  conviction under Section 3(1) and punishment under sub- section 2(ii) of Section 3 of the TADA Act cannot be sustained.   We are satisfied that the prosecution has miserably failed to  establish the charge levelled against both the accused.  The  Designated Court has committed an error in accepting the  prosecution case based on a mere reference of ULFA by P.Ws.  5 and 6.  In fact, both of them have stated that it was the  police who disclosed that they recovered some arms from two  ULFA men and it is not their own assertion.  Neither P.Ws.5  and 6 nor the remaining seven police personnel including Dy.  Superintendent of Police, who were examined, whisper a word  about the banned organization - ULFA and the alleged  unlawful activities of the accused persons in terms of Section  3(1) of the Act.  These material aspects have not been adverted  to by the Designated Court.  

24)     For the reasons stated above, both the appeals succeed  and are hereby allowed.  The conviction of the appellants  under Section 3(1)(2)(ii) of the TADA Act with sentence and  fine thereunder is set aside.  The appellants are directed to be  released forthwith, if not required in any other offence.