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CASE NO.: Writ Petition (crl.)  132-134 of 2003

PETITIONER: S.K. Shukla & Ors                                        

RESPONDENT: State of U.P. & Ors.                             

DATE OF JUDGMENT: 10/11/2005

BENCH: B.N. Agrawal & A.K. Mathur

JUDGMENT: J U D G M E N T (with SLP(Crl) No. 1521/2004, T.P.(Crl) Nos. 82-84/2004 &  Crl.A. 1511/2005 @ SLP (Crl)  No. 5609/2004)

A.K. MATHUR, J.

All these cases are inter-related and common arguments  were raised, therefore, they are disposed of by this common  order.

       Writ Petition Nos 132-134/2003 under Article 32 of the  Constitution of India is directed against the withdrawal of the  POTA order by the State Government dated 29th August 2003  against accused Udai Pratap Singh, Raghuraj Pratap Singh @  Raja Bhaiya & Akshay Pratap Singh @ Gapalji.  The Union of  India was also permitted to be impleaded as a party-respondent.

       In SLP (Crl) 5609 of 2004, the petitioner has challenged the  order passed by the POTA Review Committee dated 30.4.2004  under Section 60 of the Prevention of Terrorism Act, 2002 (15 of  2002) (hereinafter referred to as ’the POTA’).  Leave granted.

In SLP (Crl) 1521 of 2004, the High Court order dated  24.2.2004 was challenged whereby accused Akshay Pratap  Singh @ Gopalji was granted bail  in case No.10 of 2003, under  Section 3/4 of POTA, Police Station Kunda, District Pratapgarh,  U.P. on his furnishing a personal bond for Rs.1,00,000/- with two  sureties each in the like amount to the satisfaction of the Special  Judge, designated court, Kanpur.

T.P (Crl) Nos. 82-84/2004 have been filed by the petitioners  apprehending that there is likelihood of miscarriage of justice in  the  State of U.P. seeking transfer of cases pending against the  accused persons from the Special Judge, Kanpur Nagar U.P. to  the Designated Court in Delhi     

In order to appreciate the controversy involved in the  matter, it will be proper to take the first case i.e. SLP(Crl) 5609 of  2004 whereby the Review Committee reviewed the cases of all  the three respondents i.e. Raghuraj Pratap Singh alias Raja  Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias   Gopalji under Section 3/4 of the POTA Act and directed the State  Government to release all these accused persons and the  proceedings against them shall deem to have been withdrawn  from the date of this direction and they may be released from the  custody forthwith under Section 3/ 4 of the POTA Act by order

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dated 30.4.2004.  Aggrieved this order, the present petition was  filed by the appellant.

The prosecution case as disclosed in recovery memo  dated 25.1.2003 of 13.45 hrs lodged at P.S. Kunda  by  Paramhans Mishra, Inspector In-charge, P.S. Kotwali Kunda that  he along with informant and other police officials raided the  house of Udai Pratap Singh for execution of warrant of arrest in  crime No. 55/1993 under Section  2/3 of the Gangster Act  pending before Special Judge, Allahabad.  They entered through  main gate and went inside the Raj Mahal premises where they  found Shri Kesri Nandan, advocate, who told them that he is an  advocate for civil cases of Uday Pratap Singh.  They found Uday  Pratap Singh present in Raj Mahal where he was standing with  one piece of AK 56 rife with black colour belt hanging on his  right shoulder.  In the rifle, there was triangular sign on the butt  with 56 written in between it, then something was written in  Chinese language and the number was printed 1600232 and the  weapon was in perfect condition and on his shoulder there was  a bag with three pieces of magazines of AK 56 rifle.  After  unloading the AK 56 rifle they found 36 bullets.  When he was  asked to produce the licence, he could not show anything nor  was he ready to tell them how he had acquired all these items.  It  is further alleged that when they entered into his bed room they  found (i) 25 bullets of .75, .65 bores (ii) 16 bullets of 400 NITRO  (iii) 1 bullet of .577 bore (iv) 3 other old rusted bullets which were  not able to read (v) 12 bullets of .405 (vi) 35 bullets of 77 mm and  (vii) 35 bullets which are old, rusted and not readable.  After that  they found a square wooden box yellow colored polythene bag  which contained in it about 200 gms of explosive chips and in  gray colour polythene bag there was some suspicious black  power.  In a white cotton bag there was blue colour polythene  which contained near about 400 gms suspicious brown colour  powder.  In the same bed room in another corner 55 bullets .605  bore and 22 bullets of .22, two pieces of Motorola wireless set.   They further raided the mango gardens of Uday Pratap Singh  from two clues given by Bhole Tewari.  On the western direction  of the Raj Mahal Bhadri, at 200 mtrs from the western wall at the  mango gardens of Uday Pratap Singh, the police discovered  freshly dug mud.  After digging 3 ft deep with length of 5 ft and  width of 4 ft they discovered three polythene green bags and  they also found (i) one DBBL gun (ii) another DBBL gun .12 bore  (iii) another DBBL  gun No.4136 C/1 (iv) another DBBL gun  number destroyed (v) one rifle (vi) one SSBBL gun No.3077-1994  (vii) one SBBL gun number 12194-B.2 (viii) five pieces of SSBBL  guns (ix) two pieces of Mauzre guns (x) two pieces of Muzzle  loading guns (xi) thirteen pieces of swords (xii) two pieces of  Hachet (xiii) two pieces of iron spears (xiv) one cane with  concealed sword  (xv) one iron axe with cap and (xvi) one big  knife with handle.

On 26th January, 2003 they recovered one 30 spring field  self loading rifle, one 30 carbine, 11 cartridges of 30 spring field  rifle and 30 cartridges of 30 carbine.  These huge catchy of arms  were recovered on the raid by the police on 25/26th January 2003  and, therefore, an order under POTA was passed against all the  three accused namely, Raghuraj Pratap Singh alias Raja Bhaiya,  Udai Pratap Singh and Akshay Pratap Singh alias Gopalji by the  State Government.   All this recovery of arms, ammunition and  other weapons were detailed in the order.  It was also disclosed  that a conspiracy was hatched by Uday Pratap Singh to cause a  massacre and/or to create terror after killing some VIPs.  In this  order it was mentioned that statement of one Shri Rajendra  Yadav was recorded on 30.2.2003 wherein he stated that

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Raghuraj Pratap Singh alias Raja Bhaiyya and Akshay Pratap  Singh alias Gopalji have brought AK-47 (56) rifle and given it to  Udai Pratap Singh.  It was also alleged that after this statement  he was murdered on 3.3.2003 and the father of the deceased  filed an FIR No.16 of 2003 under Section 302/34/506/120B IPC in  P.S. Kunda, Distt. Pratapgarh for causing the murder under a  conspiracy hatched by Raghuraj Pratap Singh, Akshay Pratap  Singh and Udai Pratap Singh.  It was alleged that these persons  kept the huge arms and ammunition including AK-56/AK-47 in  their house and whoever speaks against them meet the same  fate.  It was also alleged that they propose to take some action  against Chief Minister Mayawati.  It was also mentioned in the  order that the said AK-56 rifle was brought by Raghuraj Pratap  Singh in presence of Akshay Pratap Singh and was given to Shri  Udai Pratap Singh.  On the basis of this, State Government  granted permission to launch prosecution under Section 50 of  the POTA Act to prosecute the accused persons namely,  Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and  Akshay Pratap Singh alias  Gopalji under Sections 3(2), 3(3), 3(7)  and 4 of POTA Act by order dated 5.5.2003.  The petitioner has  given details of the large number of criminal cases pending  against these persons.  Shri Raghuraj Pratap Singh is said to be  involved in 37 cases for various offence under Sections 302,  307,147, 148, 120-B, 320 IPC.  The petitioner has also given a  chart of the cases pending against Uday Pratap Singh for  various offences under Sections 302, 307, 397 etc. totalling  around 50 cases.  The petitioner has also given a chart  mentioning the cases against Akshay Pratap Singh for the  offence under Sections 302, 307  &  the Gangster Act and many  other cases under Indian Penal Code totalling around 32 cases.   After this order was passed by the State Government against the  accused persons political events took a turn.  A new regime  came in power.  This regime after resuming the power revoked   the order by an order dated 29.8.2003.  This order was  challenged by the petitioner in the Writ Petition (Crl) 132-134 of  2003 under Article 32 of the Constitution before this Court.   

Meanwhile the accused also filed a review petition under  Section 60 of POTA before the Reviewing Committee appointed  under the POTA Act.  They also filed petition before the Central  Government.  The Reviewing Committee headed by Justice  Naseem Uddin and Rajendra Kumar Dubey, ex Commissioner in  U.P. reviewed the matter and held that since there is no case  against the applicants under the POTA and no prima facie case  is found under Sections 3 and 4 of the POTA Act, therefore,  there is no basis for proceeding against accused under POTA  and the State of U.P. was directed to release all the three  applicants.  This is the subject matter of the Special Leave  Petition (Crl) 5069 of 2004.  All the arguments were directed on  whether the order passed by the Review Committee is  sustainable in law or not.  In fact, before this order of the Review  Committee the State Government has already passed the order  for withdrawing the cases against all the accused under the  POTA Act by order dated 29.8.2003 but since the order was  passed by the Review Committee therefore we shall now deal  with this petition first that whether this order of the Review  Committee can be sustained or not.

Before we address ourselves and examine the validity of  this order passed by the Review Committee under Section 60 of  the POTA Act, it will be relevant to review the necessary  provisions of the POTA Act.  The said Act i.e Prevention of  Terrorism Act, 2002 was promulgated by the Parliament with a  view to prevent terrorists activities and the matters connected  therewith.  The terrorist act has been defined in Section 2(1)(g)

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which reads as under:

"2(1)(g) :  "Terrorist Act" has the meaning  assigned to it in sub-section (1) of Section 3 and  the expression "terrorist" shall be construed  accordingly;"

       Section 3 reads as under: "3.(1) Whoever,

(a) with intent to threaten the unity, integrity, security or  sovereignty of India or to strike terror in the people or any  section 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 or by  any other means whatsoever, in such a manner as to cause, or  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 causes damage or destruction of any  property or equipment used or intended to be used for the  defence of India or in connection with any other purposes of  the Government of India, any State Government or any of their  agencies, 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;

(b) is or continues to be a member of an association declared  unlawful under the Unlawful Activities (Prevention) Act, 1967  or voluntarily does an act aiding or promoting in any manner  the objects of such association and in either case is in  possession of any unlicensed firearms, ammunition, explosive  or other instrument or substance capable of causing mass  destruction and commits any act resulting in loss of human  life or grievous injury to any person or  causes significant  damage to any property,

commits a terrorist act.

Explanation:- For the purposes of this sub-section, "a terrorist  act" shall include the act of raising funds intended for the  purpose of terrorism.

(2) Whoever commits a terrorist act, shall:-

(a) 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:

(b) 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.

(3) Whoever conspires or attempts to commit, or advocates,  abets, advises or incites or knowingly facilitates the  commission of, a terrorist act or any act preparatory to a  terrorist act, shall 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.

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(4) Whoever voluntarily harbours or conceals, or attempts to  harbour or conceal any person knowing that such person is a  terrorist shall be punishable with imprisonment for a term  which shall not be less than three years but which may extend  to imprisonment for life and shall also be liable to fine:

Provided that this sub-section shall not apply to any case in  which the harbour or concealment is by the husband or wife of  the offender.

(5) Any person who is a member of a terrorist gang or a  terrorist organization, which is involved in terrorists acts, shall  be punishable with imprisonment for a term which may extend  to imprisonment for life or with fine which may extend to  rupees ten lakh or with both.

Explanation: For the purposes of this sub-section, "terrorist  organization" means an organization which is concerned with  or involved in terrorism.

(6) Whoever knowingly holds any property derived or obtained  from commission of any terrorist act or has been acquired  through the terrorist funds shall be punishable with  imprisonment for a term which may extend to imprisonment  for life or with fine which may extend to rupees ten lakh or with  both.

(7) Whoever threatens any person who is a witness or any  other person in whom such witness may be interested, with  violence, or wrongfully restrains or confines the witness, or  any other person in whom the witness may be interested, or  does any other unlawful act with the said intent, shall be  punishable with imprisonment which may extend to three  years and fine."

       Section 4 reads as under:

"Where any person is in unauthorized possession of any:- (a) arms or ammunition specified in columns (2)  and (3) of Category I or Category III(a) of Schedule  1 to the Arms Rules, 1962, in a notified area,

(b) bombs, dynamite or hazardous explosive  substances or other lethal weapons capable of  mass destruction or biological or chemical  substances of warfare in any area, whether  notified or not,

he shall be guilty of terrorist act notwithstanding anything  contained in any other law for the time being in force, and be  punishable with imprisonment for a term which may extend to  imprisonment for life or with fine which may extend to rupees  ten lakh or with both.

Explanation: in this section, "notified area" means such area  as the State Government may, by notification in the Official  Gazette, specify."

        Section 60 lays down that the Central Government and the  State Government constituting a Review Committing for  purposes of reviewing the cases.  Section 60 reads as under:

"60(1) The Central Government and each State Government  shall, whenever necessary, constitute one or more Review

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Committees for the purposes of this Act.

(2) Every such Committee shall consist of a Chairperson and  such other members not exceeding three and possessing  such qualifications as may be prescribed.

(3) A Chairperson of the Committee shall be a person who is,  or has been, a Judge of a High Court, who shall be appointed  by the Central Government, or as the case may be, the State  Government, so however, that the concurrence of the Chief  Justice of the High Court shall be obtained in the case of a  sitting Judge:

Provided that in the case of a Union territory, the appointment  of a person who is a Judge of the High Court of a State shall  be made as a Chairperson with the concurrence of the Chief  Justice of the concerned High Court.

4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003

(4) Without prejudice to the other provisions of this Act, any  Review Committee constituted under sub-section (1) shall, on  an application by any aggrieved person, review whether there  is a prima facie case for proceeding against the accused under  this Act and issue directions accordingly.

(5) Any direction issued under sub-section (4):

(i) by the Review Committee constituted by the  Central Government, shall be binding on the  Central Government, the State Government and  the police officer investigating the offence; and

(ii) by the Review Committee constituted by the  State Government, shall be binding on the State  Government and the police officer investigating  the offence.

(6) Where the reviews under sub-section (4) relating to the  same offence under this Act, have been made by a Review  Committee constituted by the Central Government and a  Review committee constituted by the State Government, under  sub-section (1), any direction issued by the Review Committee  constituted by the Central Government shall prevail.

(7) Where any Review Committee constituted under sub- section (1) is of opinion that there is no prima face case for  proceeding against the accused and issues directions under  sub-section (4), then, the proceedings pending against the  accused shall be deemed to have been withdrawn from the  date of such direction."

A perusal of these relevant Sections shows that Section 3  deals with terrorist activities and we are specially concerned  with sub-section (3) which, inter alia, states that  whoever  conspires or attempts to commit, or advocates, abets, advises  or incites or knowingly facilitates the commission of, a terrorist  act or any act preparatory to a terrorist act, shall 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.  Therefore the ambit of Terrorist Act is very  wide and in this any person who commits or advocate, abets,  advises or incites or knowingly facilitates the commission or

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involved in preparation to a terrorist act can be roped in under  the wide definition of the Terrorist Act.  In fact, the sub-section  (1) of Section 3 clearly says that whoever with intent to threaten  the unity, integrity, security or sovereignty of India or to strike  terror in the people or a section of the people does any act or  thing by using bombs, dynamite or other explosive substances  or inflammable substances or firearms or lethal weapons or  poisons or noxious gases or other chemicals or by any other  substances of a hazardous nature or by any other means  whatsoever, in such manner as to cause death 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 causes damage or destruction of  any property or equipment used or intended to be used for the  defence of India or in connection with any other purposes of the  Government of India, any State Government or any of their  agencies, or detains any persons 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.  That shows that if  any person with the help of any bombs, dynamite or explosive  substance or by fire arm or  lethal weapons terrorize people or  any section of people then such action will amount to a terrorist  activity and the preparation thereof will also be punishable.   Therefore, the question before us is whether the possession of  the weapons by the accused persons in their houses were lethal  weapons and the possession of the explosive substances were  preparation of the terrorist act or not.  Secondly, whether  unauthorized possession under Section 4(a) of the Arms Act and  ammunition specified in column 2 and 3 and category (1) or  category 3(a) of Schedule 1 to the Arms Act, 1959 in notified  area would attract the wrath of this provision.  Likewise, whether  possession of hazardous explosive or lethal weapons capable of  mass destruction by these accused persons can be prosecuted  or not under Section 4(b) of the Act.

       Learned counsel  for the appellant has seriously  challenged the order passed by Review Committee.   Learned  counsel for the petitioner submitted that in fact the Review  Committee did not appreciate the scope of Section 4 of the Act  properly.  He submitted that though the cases of these accused  persons are covered under Section 4(a) because of unauthorized  possession of arms and ammunition, but in case it is not  covered under Section 4(a), then alternatively it is squarely  covered under Section 4(b) because there is no need to notify  the area under Section 4(b) as required under Section 4(a) of the  Act.

       Shri Shanti Bhushan, learned senior counsel appearing for  the State supported the order of the Review Committee.  Shri  Rao, learned senior counsel appearing for the accused  respondents also strenuously urged that the order passed by  the Review Committee is correct and the Review Committee has  not committed any irregularity or illegality.  

        Section 4 has already reproduced above has two parts, one  with the possession of the arms and ammunition specified in  column 2 and 3 of the category 1 or category 3(a) of Schedule 1  of the Arms Rules, 1962, the unauthorized possession of them in  notified area is punishable.  Now the category 1 of Schedule  under the Arms Rules, 1962 read with category 3(a) of the  Schedule 1 reads as under:

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        SCHEDULE I (See rule 3) Category Arms Ammunition 1 2 3 I (a) Prohibited arms as defined in  Section 2 (1) (i) and such other arms as  the Central Government, may, by  notification in the Official Gazette,  specify to be prohibited arms. Prohibited ammunition as defined in  Section 2 (1) (h) and such other  articles as the Central Government  may, by notification in the Official  Gazette, specify to be prohibited  ammunition.   (b) Semi-automatic fire-arms, other  than those included in categories 1 (c)  and III (a), smooth bore guns having  barrel of less than 29" in length. Ammunition for arms of category I  (b).   (c) Blot action or semi-automatic rifles  of ".303" or 7.62 mm. bore or any  other bore which can chamber and fire  service ammunition of .303" or 7.62  mm. calibre; muskets of .410" bore of  any other bore which can fire .410"  musket ammunition ; pistols, revolvers  or carbines of any bore which can  chamber .380" or .455" rimmed  cartridges or service 9 mm. or ".445"  rimless cartridges.  Ammunition for fire-arms of cate- gory I (c).   (d) Accessories for any fire-arms  designed or adapted to diminish the  noise or flash caused by the firing  thereof. Nil. II Machinery for manufacture or proof- testing of a fire-arm. Machinery for manufacturing  ammunition. III Fire-arms other than those in  categories I, II and IV, namely : Ammunition for fire-arms other  than those in categories I, II and IV,  namely :   (a) Revolvers and pistols. Ammunition for fire-arms of cate-

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gory III (a).   (b) Breech- loading rifles other than  .22 bore rifles mentioned in category  III (c) below. Ammunition for fire-arms of cate- gory III (b).   (c) 22 bore (low velocity) rifles using  rimfire cartridges, breech-loading  smooth-bore guns and air-rifles. Ammunition for fire-arms of cate- gory III (c).   (d) Air-guns and muzzle-loading guns. Ammunition for fire-arms of cate- gory III(d). IV Curios and historical weapons, other  than those excluded under Section 45  (c). Curios and historical ammunition. V Arms other than fire-arms : Sharp- edged and deadly weapons, namely- swords(including sword-stick),  daggers, bayonets, spears (including  lances and javelins; battle-axes, knives  (including kirrpans and khukries) and  other such weapons with blades longer  than 9" or wider than 2" other than  those designed for domestic,  agricultural, scientific or industrial  purpose, steel batton; "Zipo" and  other such weapons called "life pre- serves"; machinery for making arms,  other than category II; and any other  arms which the Central Government  may notify under Section 4. Nil. VI   VI (a) Articles containing explosives  or fulminating material; fuses and  friction  tubes other than blank fire  cartridges.     VI (b) Ingredients as defined in  Section 2 (b) (VII). Note.\027 Parts and accessories of any arms or ammunition and charges for fire-arms and  accessories for charges belong to the same category as the arms or ammunition.

       The second category i.e. Section 4(b) which says that the  unauthorized possession of bombs, dynamites, hazardous  explosive substances or other lethal weapons or poisons or  noxious gases or other chemicals or by any other substances of  a hazardous nature capable of mass destruction whether  notified or not notified.  Therefore, the possession of bombs,  dynamite or hazardous explosive substance or lethal weapons  in an unauthorized manner is punishable in itself and need not  be in notified area.  Therefore, Section 4(a) and (b), the  possession of the arms mentioned in clause (a), unauthorized

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possession thereof in notified area is prohibited whereas in  Section 4(b) any bomb, dynamite, hazardous explosive or lethal  weapon capable of a mass destruction is punishable  irrespective of the fact that the area is notified or not notified.   The qualification of the notified area is not required in Section  4(b).

       So far as Section 4(a) is concerned, the Review Committee  had discussed the matter in greater details and it was found that  the notification under Section 4(a) was not issued prior to the  recovery of the arms and ammunition at the house of Udai  Pratap Singh on 23.1.2003.  It was submitted that the raid in the  house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap  Singh and Akshay Pratap Singh alias  Gopalji were politically  motivated as these persons did not support the Government of  Mayawati, the raid was conducted and POTA cases were  launched against them.  When the new Government came  headed by Chief Minister Mulayam Singh Yadav then this order  was revoked under POTA as Raghuraj Pratap Singh supported  this Government.  We are not concerned with the political  overtone of the matter.  We are examining the matter purely from  the legal point of view.  The question before us is that on the  relevant date whether the whole area of Uttar Pradesh was  notified area or not under Section 4(a) of the Act.  Much  argument was addressed in this case and the original records of  the Secretariat and of the Government Press was placed before  us for our perusal.  It may also be relevant to mention here that a  committee was appointed on the complaint made by some of the  legislators that the raid at the house of Udai Pratap Singh was  made prior to issue of the notification of the notified area. The  committee after considering full enquiry found that notification  of notified area was promulgated on 29.1.2003 and it was  communicated to the district on 31.3.2003 and it reached them  thereafter.  Since this finding was seriously debated before us  also, therefore we perused the report of the committee as well,  we called the original record to satisfy ourselves when exactly  was notification issued.  After going through the note sheet of  the Secretarial file as well as the record of the Government  printing press, Lucknow, we are satisfied that in fact the  notification declaring whole of State of Uttar Pradesh as a  notified area was not  published on 23.1.2003.  But the decision  on the note-sheet was taken on 22.1.2003 and a communication  was sent to the Government Press for publication of it on  23.1.2003 but in fact it was published as per the record of the  Government Press on 29.1.2003 though it was dated notification  dated 23.1.2003.  Therefore after close scrutiny of the records of  the Government Secretariat’s files as well as original registers of  the Government Press, we are of the opinion that the view taken  by the Review Committee to this extent is correct that the whole  area was notified on 29.1.2003 only and not on 23.1.2003 - the  date of the notification.  The requisition reached the Government  Press for publication 5.30 on 27.1.2003 and it was published and  ready for dispatch on 29.1.2003 and accordingly it was  dispatched to the Home Department on 29.1.2003.  Therefore,  from these facts it is clear that the finding accorded by the  Review Committee that the notification notifying the State of  U.P. as a notified area under Section 4(a) was published in the  Extra Ordinary Gazette of U.P. on 29.1.2003 and it was  dispatched thereafter to all the districts magistrates.  Therefore,   it became effective from the date of its publication.  Normally  under the State General Clause Act, an Act comes into force on  the date when the assent of the Governor or the President as the  case may be, is first published in the official gazette of the State.   Therefore, publication in the gazette is essential as it affects the  rights of the public.  Since this prohibitory notification notifying

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that the possession of certain kinds of arms in the notified area  is prohibited, therefore, it would come into effect from the date  when it was published in the official gazette.

Therefore, so far as this part of the finding given by the  Review Committee  that notification under Section 4(a) had not  come into existence at the time when the raid at the premises of  Udai Pratap Singh was conducted, this finding of the POTA  Review Committee is correct.  As a result of this finding so far  as charge under Section 4(a) cannot be sustained.  

Now, coming to alternative submission of the learned  counsel that Section 4(b) where unauthorized possession of the  bombs, dynamites or hazardous explosive substance or lethal  weapons capable of mass destruction is concerned, in that case  the area need not be notified.  The unauthorized possession  thereof itself has been found to be punishable under this  Section.  Learned counsel submitted that this aspect seems to  have been completely missed by the Review Committee.  The  Review Committee only concentrated with regard to the  question of Section 4(a), but did not examine the matter with  reference to sub-section (b) of Section 4 of the Act.  The two  expressions which appear in Section 4(b) are relevant for our  purposes i.e. the possession of  "hazardous explosive  substance" or "lethal weapons capable of mass destruction" .   Learned counsel for the petitioner has submitted that the  hazardous explosive substances were recovered from the house  of Udai Pratap Singh cannot be dismissed as an explosive of low  intensity and in that connection learned counsel has invited our  attention to the expression hazardous and also invited our  attention to the findings given by the forensic experts.  The  explosive substances recovered were sent for Forensic Science  Laboratory, U.P. Agra and Forensic Science Laboratory in their  report has observed as under:

"On the analysis explosive substances Nitrate,  Sulpher, Potassium and Charcoal were found in  the Exhibit. Organic chemical and DLC method  has been used."

Our attention was also invited to the observation of the  bomb disposal/disbursement certificate it was mentioned that  ’low intensify’.  Therefore the question is whether this explosive  can be said to be as hazardous substance or not.  Firstly, it is  unlikely that a law abiding citizen will keep such quantity of the  explosive at his house.  It is not an explosive for purpose of  firecrackers.  In the light of the facts mentioned above, keeping  of such explosive at their house does not show that it was  meant for a bonafide purpose.  The question is whether this  substance is hazardous in nature or not.  The very fact of  keeping such huge quantity of explosive in house is on the face  of it is a hazardous and it is not kept normally by a person  unless who deals in explosive with authorized licence for that  purpose.  The possession of such explosive without any  authorized licence is a serious matter.  Though, it is dealt  separately because the accused has already been charged  under the Explosive Act.  But in this present context can such  unauthorized possession by a person can be said to be a  bonafide, is it not a hazardous or injurious to the public at large?   The hazardous has been defined in Collins Cobuild English  Language Dictionary as "something that is hazardous is  dangerous, especially to people’s health or safety.   The  hazardous has also been defined in the New Oxford Dictionary  of English as "Risky; dangerous".  Aiyar’s Advanced Law

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Lexicon at page 826 defines ’Hazardous substance’ as :  

"A solid waste, or combination of solid wastes  which because of its quantity, concentration or  physical, chemical or infectious characteristics may  cause, or significantly contribute to an increase in  mortality or an increase in serious irreversible, or  incapacitating reversible, illness or pose a  substantial present or potential hazard to human  health or the environment when improperly treated,  stored, transported, or disposed of, or otherwise  managed."   

The explosive substance has also been defined in Section  2 of the Explosive Substance Act, 1908 which reads as under:

"2. In this Act the expression "Explosive  Substance" shall be deemed to include any  materials for making any explosive substance;  also any apparatus, machine, implement or  material used, or intended to be used, or adapted  for causing, or aiding in causing, any explosion in  or with any explosive substances; also any part of  any such apparatus, machine or implement."

Therefore considering the hazardous substance under  Section 4(b) mean that possession of it by any person be it  notified area or otherwise is also punishable under the Act.   

Learned Counsel Shri Shanti Bhushan and Shri Rao tried  to play it down that as per the finding of the bomb demolishing  squad it is of low intensity and cannot fall in category of  hazardous substance.  We regret, we cannot accept their  submission.  This explosive is capable of creating a havoc if it is  used for preparing a bomb, it is capable of mass destruction.   Any person in this background possessing this hazardous  explosive substance cannot  be credited to have it for bonafide  purpose.  Therefore, the fact that hazardous substance was  found at the house of Udai Pratap Singh clearly shows that the  case is covered by Section 4(b) and it cannot be played down  simply because it has been reported by the bomb demolishing  squad that it is of low intensity.  This  explosive substance is  certainly hazardous and is capable of being used for preparation  of bomb or other explosive material for scaring the people or for  causing mass destruction be it in terms of the human beings or  any building or otherwise.  This aspect of the matter seems to  have not been adverted by the Review Committee.

Similarly, learned counsel for the appellant  has also  placed much emphasis on the expression "other lethal  weapons".    AK-56 is a weapon of such a mass destruction that  if it is fired then it can at a time kill number of persons because  of his lethal potentiality.  The expression "lethal" has also been  defined in Aiyar’s Advanced Law Lexicon which reads as under:

"Lethal weapon. A deadly weapon.  The term "lethal weapons"  means deadly weapons.  "Guns, Swords, pistols, knives, and  the like are lethal weapons as matter of law, when used within  striking distance of the party assaulted.  Others are lethal or  not according to their capability of producing death or great  bodily harm in t he manner in which they are used."

A lethal weapon is a weapon capable of causing an injury, and

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if it is barreled and if a shot, bullet, or other missile can be  discharged from it, it is a firearm.  A signal pistol firing a  cartridge with explosive ballistic and containing a  phosphorous and magnesium flare is a lethal weapon

To give ’legal’ is natural meaning, such a weapon should be  proved to be one capable of causing injuries of a more than  trivial nature and of a kind which it might reasonably be  expected could lead to death."

Stroud’s Judicial Dictionary of Words & Phrases defines  ’lethal weapon’ as under:  

"A lethal weapon is a weapon capable of causing an injury,  and if it is barreled and if a shot, bullet, or other missile can be  discharged from it, it is a firearm.  A signal pistol firing a  cartridge with explosive ballistite and containing a  phosphorous and magnesium flare is a lethal weapon".   

AK-56 is a very dangerous weapon and it is used in the  warfare as well as in terrorist activities very frequently.  The  possession of which in an unauthorized manner is itself is an  offence under Section 4(b) of the Act.  Learned counsel has also  brought to our notice the potentiality of creating mass  destruction by a weapon like AK-56 and invited our attention to  the literature of the AK-47 and AK-56, AK-56 is, in fact, the  improved version of AK-47.  AK-47 literature which has been  brought to our notice reads as under:

"AK-47.net: AK-47:- The AK-47 was designed by Mikhail  Timofeyevich Kalashnikov as a replacement for the SKS and  as a rifle that could be used by Soviet tank crews.  In 1946,  while working at the Kovrov weapons plant, Kalashnikov  began work on the AK-47.  The AK-47 was accepted as the  standard rifle for the Soviet Army in 1949 and retained that  status until it was succeeded by the AKM.  To this day  between 30 and 50 million copies and variations of the AK-47  have been produced world wide, making it the most widely  used rifle in the world.

The AK-47 is chambered in 7.62X39 and features hardwood  furniture with a fixed stock.  The AK-47 has a 16 inch barrel  with a muzzle nut to protect the threads.  The AK-47 features a  stamped receiver with a non ribbed cover plate and magazine.   The rifle can be fired in two different firing modes; semi and  full auto.  The AK-47 has a 800 meter leaf sight that is only  adjustable for range.  All windage adjustments must be made  by using the front sight.  The AK-47 weighs 4,300 g and has a  rat e of fire of 600rpm.  The rifle will accept most synthetic and  metal magazines, generally 30 rounds in capacity.  The rifles  effective killing range is 1,500 meters, and is generally not  used for more than 300 meters.  The original AK-47 was not  outfitted for the use of a bayonet, however the design was  changed and a bayonet was added.  The AK-47 also features a  hollow compartment in the buttstock which was used to keep  the cleaning kit."  (Source of information is www.ak-47.net/ak47/akru/ak47.html)

AK-56 has the same features except some minor  improvement on it, reads as under:

"Caliber: 7.62X39  Action: Gas operated, rotating bolt  Overall length: 874 mm

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 Weight: 3.80 kg.   Magazine capacity: 30 rounds     The type 56 assault rifle was adopted by PLA in 1956, along  with Type 56 carbine (which was a licence built Soviet SSKS  copy).  The type 56 assault rifle was, in turn, also a licensed  copy of the Soviet AK-47 assault rifle, with minor  modifications.

Type 56 is a gas operated, selective fire weapon.  The receiver  is machined from steel, the two lugged bolt locks into receiver  walls.  Type 56 ha AK-47 style controls with reciprocating  charging handle and massive safety-fire selector lever at the  right side of the receiver.  The furniture was made from wood,  and compact version with underfolding metallic buttstock was  also available.  The only visible difference from Soviet AK-47 is  a permanently attached spike beyonet, which folds under the  barrel when not in use."

The design features has been quoted from the Janes  Information Group reads as under:

"Type 56 basic version with a fixed wooden stock, Type 56-1  with a vertically folding metal stock, and Type 56-II with a  horizontally folding metal stock.  Except for the differences in  the stock and the lack of a tool kit with the basic variant, the  two versions with folding stock are identical to the basic  variant.

The Type 56 is such a reliable weapon that it can function  normally after total immersion in mud and water.  The fully  chromed barrel ensures effective operation even at very low  temperatures.  Unlike the Aks, the Type 56 is fixed with a  foldable bayonet, but the two later version versions have no  bayonet.

All Type 56 assault rifles fire in either semiautomatic or  automatic mode and have an effective range of about 300 m.  At full cyclic rate, they can fire about 600 rounds per minute  semiautomatic.  Both the Type 56-I and Type 56-II can mount a  grenade launcher."

The above potentiality of AK-56 is capable of causing mass  destruction.  It fires about 600 rounds per minutes, it means 600  bullets if hit all the 600 targets, it can lead to a mass destruction.   Therefore, the possession of such unauthorized weapon is  dangerous and is capable of mass destruction.  It is a lethal  weapon capable of mass destruction and unauthorized  possession thereof is itself punishable.  This aspect was also  not been adverted by the Review Committee.  The Review  Committee only directed that an unauthorized possession of the  weapons which have been specified in column 2 and 3 of  category 1 or category 3(a) of Schedule 1 to the Arms Rules  possession of it in the notified area is punishable.  But if at the  same time one of the weapons falls in the category of Section  4(b), then it does not mean that since it falls in category  4(a), it  stands excluded from category of Section 4(b).  If the weapon  falls in the category of Section 4(b) also under the head ’lethal  weapon’, then irrespective of the fact that it falls in the category  (a) will not be excluded from category of Section 4(b).  We  cannot read both the provisions of clause (a) and (b) to be of  exclusive of each other.  Both the provisions have to be read  harmoniously.  If the weapon which is specified in clause (a) is  equally covered under clause (b) under the heading of ’lethal

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weapon’, then it would not mean that it shall stand excluded  from Section 4(b).   We have to keep in view the purpose for  which this Act was enacted i.e. prevention of the terrorists  activities and we cannot interpret provisions of Section 4(a) and  (b) to be exclusive of each other [Ref : 2005 (6) SCALE 177].  If  the weapons enumerated in clause (a) are also covered in clause  (b), then it does not go out of the net of clause (b).  This aspect  was not addressed by the Review Committee at all.  The Review  Committee put a complete gloss over possession of the  explosive substance, that it is not a hazardous or capable of  mass destruction because of its low intensity.

Secondly, the Review Committee has also has entered into  the merit of the matter that accused persons Raghuraj Pratap  Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap  Singh alias Gopalji cannot be connected with the recovery of  these catchy of arms.  The role of the Review Committee is very  limited and the Review Committee has to see a prima facie case  and cannot enter into the merit that whether ultimately the  conviction will be entailed or not or the evidence is so weak to  connect the other accused persons.  The role given to the  Review Committee under sub-section (4) of Section 60 is very  limited and it has only to see whether there is a prima facie case  for proceeding against the accused under the Act or not.  The  Review Committee has traveled beyond its scope, the  sufficiency of evidence cannot be gone into by the Review  Committee.  It is also not the job of the Review Committee  whether confession is admissible or not.  Role assigned to  Review Committee is very limited and if the prima facie case  connects the accused on the basis of the material with the  prosecution then it is not for the Review Committee to dilate on  that as if they are trying the cases under the Act.  As we have  already mentioned above that we need not enter into the political  controversy that whether first order passed was politically  motivated or the second order passed was also equally  politically motivated by other party in power, we do not want to  go into these questions.  The use of the Act for personal benefit  of the political parties has to be condemned in no uncertain  terms.  This Act cannot be used for the political ends; it is meant  for the benefit of the nation so that the terrorists activities do not  disturb the sovereignty or integrity of the nation.     So far as this  case is concerned, we are of the opinion that there is prima facie  case for prosecuting the accused persons.  These accused  persons were charged under Section 3(3) read with Section 4  (a)(b) of the Act.  But so far as Section 4(a) is concerned, for  reasons mentioned above, it cannot proceed now.  But it can  proceed so far as under Section 3(3)  & Section 4(b) of the Act is  concerned along with  Arms Act & Explosives Act.   Therefore,  we allow this appeal in part.  We set aside the order of the  Review Committee and hold that the respondents can be  prosecuted under Section 3(3) and Section 4(b) of the Act and  other provisions of the Explosive and Arms Act. The accused,  Mr. Udai Pratap Singh and  Raghuraj Pratap Singh alias Raja  Bhaiya may surrender before the Judge, Designated Court,  under POTA Act/Sessions Judge, Kanpur Nagar within a week  and apply for bail. In case they fail to appear before the Judge,  the Judge, Designated Court under POTA Act, Kanpur Nagar  get  them arrested.   So far as  Akshay Pratap Singh is concerned,   as he is already on bail,  he need not to surrender. However, any  observation made in this order will not prejudice their trial.

SLP(Crl)  1521 of 2004

This petition is directed against the order passed by the  High Court granting the bail.  By this petition, the petitioner has

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challenged the order passed by the High Court of Judicature,  Allahabad releasing Akshay Pratap Singh @ Gopalji on bail.   Since the bail has already been granted and he was in detention  for a long time, we do not propose to interfere with the bail  order, but observation made by the learned Judges in the order  cannot be sustained as it is contrary to our finding.  Therefore,  SLP(Crl) 1521 of 2004 is dismissed.

Writ Petition (Crl) 132-134 of 2003

This petition is filed against the order passed by the State  Government dated 29.8.2003 whereby public prosecutor was  directed to withdraw the POTA cases against the accused  persons.  An application was moved by public prosecutor for  withdrawal of theses cases before Special Judge, though no  order was passed permitting withdrawal of these cases.   However, in view of our finding in SLP (Crl) 5609 of 2004, we  cannot affirm the order of the State Government for withdrawal  of these cases and consequential application made by the public  prosecutor for withdrawal of these cases.  The order passed by  the Government dated 29.8.2003 as well as application moved by  the special public prosecutor before the Special Judge, Kanpur  Nagar cannot be sustained and accordingly the order passed by  the State Government and the application moved by the special  public prosecutor before the Special Judge at Kanpur, both are  rejected.  In this connection our attention was invited to 1983(1)  SCC 438, 1980(3) SCC 435, 1996(2) SCC 610, 2002(3) SCC 510.  In  these cases it has been laid down that the public prosecutor has  to shoulder a greater responsibility for withdrawal of the cases  under Section 321 Cr.P.C.   In Sheonandan Paswan vs. State of  Bihar and others \026 1983 (1) SCC 438, it was held, that the settled  law laid down by the Supreme Court has been that the withdrawal  from the prosecution is an executive function of the Public  Prosecutor and the ultimate decision to withdraw from the  prosecution is his.  Before an application is made under Section 321,  the Public Prosecutor has to apply his mind to the facts of the case  independently without being subject to any outside influence.  The  Government may suggest to the Public Prosecutor that a particular  case may not be proceeded with, but nobody can compel him to do  so.  However, Section 321 of the Code does not lay any bar on the  Public Prosecutor to receive any instruction from the Government  before he files an application under that section.  If the Public  Prosecutor received such instructions, he cannot be said to act  extraneous influence.  On the contrary, the Public Prosecutor cannot  file an application for withdrawal of a case on his own without  instruction from the Government, since a Public Prosecutor cannot  conduct a case absolutely on his own, or contrary to the instruction  of his client, namely, the Government.  Unlike the Judge, the Public  Prosecutor is not an absolutely independent officer.  He is appointed  by the government for conducting in court any prosecution or other  proceedings on behalf of the Government concerned.  So there is the  relationship of counsel and client between the Public Prosecutor and  the Government. If the Government gives instructions to a Public  Prosecutor to withdraw from the prosecution of a case, the latter after  applying his mind to the facts of the case may either agree with  instructions and file a petition stating grounds of withdrawal or  disagree therewith having found a good case for prosecution and  refuse to file the withdrawal petition.  In the latter event the Public  Prosecutor will have to return the brief and perhaps to resign, for, it is  the Government, not the Public Prosecutor, who is in the know of  larger interest of the State".  The Public Prosecutor cannot act like  a post box or act on the dictate of the State Governments.  He  has to act objectively as he is also an officer of the Court.  At the  same time court is also not bound by that.  The courts are also  free to assess whether the prima face case is made or not.  The

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court, if satisfied, can also reject the prayer.  However in the  present case we have examined the matter and found that there  is a prima facie case to proceed against the accused persons  under Section 4(b) of the Act and other provisions of the  Explosive or Arms Act, therefore, the sanction granted by the  Government and application moved by public prosecutor for  withdrawal of the cases cannot be sustained.  Hence writ  petition Nos.132-134 of 2004 is accordingly allowed and the  order of the State Government dated 29.8.2003 withdrawing the  cases against the accused persons is quashed, likewise  direction to the public prosecutor for withdrawing the cases  from the Court.

Transfer Petition No.82-84 of 2004

This petition relates to transfer of the cases from State of  U.P. to any other court under Section 406 Cr.P.C. 1993 in  criminal case No.3/2003 in crime case No.10/03 under Sections 3  & 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj  Pratap Singh @ Raja Bhaiya and Akshya Pratap Singh @ Gopalji  pending before the Designated Court under POTA at Kanpur to  the Designated Court under POTA at Delhi or before any other  Special Judge at Delhi.

Likewise, crime case Nos. 113/2002 and 209/2002 under  Sections 2/3 of U.P. Gangster and Anti-social Activities  (Prevention) Act, 1986 titled as State vs Udai Pratap Singh,  Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap  Singh @ Gopalji pending in the court of Special Judge (Gangster  Act), Allahabad, U.P. to the court of Special Judge at Delhi or to  any other court at Delhi.

The petitioner has stated that there will be no chance of fair  trial in the State of U.P. as most of the witnesses are afraid to  speak against the respondents and even one Shri Rajender  Yadav was killed as he deposed against these persons.  It was  also mentioned that the State Government is not serious.  The  State Government has already withdrawn the POTA cases  against the accused persons and directed the public prosecutor  to withdraw these cases.  In this background, there is no  likelihood of fair trial in the State of U.P.  The respondents failed  to file counter affidavit, but an affidavit has been filed by one  Dinesh Priyadarshi on behalf of respondents No. 2 to 4.  But no  affidavit was filed by the respondents though they were made a  party to the petition.  We failed to understand why the affidavit  has not been filed by respondents themselves.  It is alleged that  accused Raghuraj Pratap Singh alias Raja is an independent  MLA who is supporting the present government and is a Minister  

in the government.   After going through the transfer petition  and counter affidavit on behalf of the respondents, we are of the  opinion that there is likelihood of miscarriage of justice in the  background mentioned above.  It is alleged that murder of Shri   Rajender Yadav has taken place and his younger brother is  connected with this case.  Therefore in the interest of justice  both these cases be transferred to any other court where, in a  proper atmosphere, the matter can be dealt with fairly.  In the  interest of justice, we direct that criminal case No.3/2003 in  crime case No.10/03 under Sections 3 & 4 of POTA Act titled as  State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja  Bhaiya and Akshya Pratap Singh @ Gopalji, and case No.

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113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti  Social Activities(Prevention) Act, 1986 titled as State of U.P. vs.  Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya &  Akshya Pratap Singh pending in the Court of Special  Judge(Gangster Act), Allahabad, U.P. be transferred to a Special  Judge in M.P.  Let the Hon. Chief Justice nominate any Special  Judge to try these cases.  The transfer petitions are  accordingly  allowed.