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PETITIONER: SUBHASH SINGH THAKURSHYAM KISHORE GARIKAPATTICHANDRAKANT ANN

       Vs.

RESPONDENT: STATE (THROUGH CBI)

DATE OF JUDGMENT:       06/11/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 6TH DAY OF NOVEMBER, 1997 Present:                Hon’ble Mr. Justice M.K.Mukherjee                Hon’ble Mr. Justice K.T.Thomas V.R.Reddy,  Additional   Solicitor  General,  Arun  Jaitley, V.C.Mahajan, V.S.Kotwal, Rajinder Singh, S.R.Chitnis, K.T.S. Tulsi,  Gopal   Subramanium,  M.N.Sukumaran  Nair,  S.B.Wad, Sr.Advs., H.R.Khan,  I.U.Khan, Rajeev  K.Singh, Chandra Kant Nayak,  R.N.Keshwani,  D.K.Garg,  Alok  Mahajan,  P.N.Gupta, C.R.Dighe, Ms. Late Krishnamurti, Vikas Pahwa, Anil K.Gupta, Ranjit Thomas,  Ms.C.K. Sucharita,  K.R.Nambiar, M.T.George, M.Nizamudeen,                             ,Sunil Mehta, Arun K.Sinha,   A.Mariarputham,    P.Parmeswaran,    Y.P.Mahajan, T.C.Sharma, Advs. with them for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:                CRIMINAL APPEAL NO.311 OF 1997                             WITH               CRIMINAL APPEAL NO. 438 OF 1997                             AND                CRIMINAL APPEAL NO.445 OF 1997                             AND               CRIMINAL APPEAL NO. 447 OF 1997                             AND               CRIMINAL APPEAL NO. 486 OF 1997 Jayendra Thakur @ Bhai Thakur The Govt. of National Capital Territory of Delhi/C.B.I                             AND               CRIMINAL APPEAL NO. 418 OF 1997 Sabu V. Chacko Union of India                             AND               CRIMINAL APPEAL NO. 440 OF 1997 S.P. Rai State through C.B.I                             AND               CRIMINAL APPEAL NO. 374 OF 1997 M/s. East West Travel & Trade Links Ltd. Union of India

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                           AND               CRIMINAL APPEAL NO. 545 OF 1997 Paresh Mohan Desai The Govt of National Capital Territory of Delhi/C.B.I.                             AND               CRIMINAL APPEAL NO. 591 OF 1997 Mohd. Ahmed Mansoor The State through C.B.I.                       J U D G M E N T Thomas J.      Out  of  twelve  accused  persons  arraigned  before  a Designated Court  In Delhi,  ten were convicted of different offences   under   Terrorist   and   Disruptive   Activities (Prevention) Act  1987 (for  short  ’TADA’).  They  are  the appellants before  us. Some of them were found to be members of a  terrorists gang  called ’Davood  Ibrahim Group.’ Three persons, including  a former  Union Minister  of  State  for Power (Kalpnath  Rai) were  found to have harboured hardcore terrorists, besides  fastening such  a finding with A12 (M/s East West  Travel and  Trade Links  Ltd). All of them except the company  were sentenced to varying terms of imprisonment (three of  them to  life imprisonment) and fine ranging from Rupees ten lakhs downwards. A-12, company was sentenced to a whopping fine of Rs. fifty lakhs.      The incipient  backdrop with events which culminated in the nabbing  of five  accused (A1-Subhash  Singh Thakur; A2- Jaynendra Thakur  @ Bhai Thakur; A3-Shyam Kishore Garikapti; A4-Chanderkant Patil  and A5-Paresh  Mohan Desai)  has  been delineated  by   the  prosecution   by  referring  to  three different incidents  which took  place  during  the  nascent stages.  The   first  was  in  incident  which  happened  on 30.40.1991 when  a  ruthless  attack  was  launched  on  the villagers at  Vadrai (a  coastal village  in Maharashtra) in retaliation for  picking up the scattered silver bars strewn in  the   sea  from  a  capsized  vessel  employed  by  some smugglers. (The said incident is referred to in the evidence as Vadrai  incident). The second one happened in the City of Mumbai when  a number  of multistory  buildings were blasted with bombs  on 12.3.1993 in which a lot of people died and a lot  others   were  seriously  injured.  (That  incident  is referred to  in evidence as Bombay blast). The third is some terrorists armed  with  highly  sophisticated  weapons,  had gatecrashed into  the JJ  hospital Bombay  where some former members of a terrorists gang were hospitalised and they were all shot  dead by  the intruders. (That incident is referred to as the Jj shoot-out case).      For some  time in early July 1993 the Delhi Police were getting  secret  informations  that  certain  members  of  a terrorists gang  having nexus  with "Davood  Ibrahim  group" have escaped  from Bombay  and perched in hideouts in Delhi. Those  hiding   terrorists   were   closely   watching   the developments following  the arrest  of one  Amit  Tyagi  who belong to yet another terrorists’ gang. They feared that the police might track them down getting scent from the arrested terrorist. Delhi  Police were  on  the  alert  the  arrested terrorist. Delhi  Police were on the alert to trace out such hide-outs. Delhi  Crime Branch  Police  formed  a  squad  to prevent any blitz being operated by the hiding terrorists.      On 23.7.1993  Delhi  Crime  Branch  Police  got  secret information about  the movements  of certain  terrorists and that they  might  proceed  to  Indira  Gandhi  International Airport as  part of  an  orchestrated  cabal  to  strike  at designed targets.  So a posse of police personnel, headed by Shri Ajay Kumar, Assistant Commissioner of Police, proceeded

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to Gagan  Vihar Extension,  Vikas Marg, Delhi in six private cars and  reached there  by 3.00  A.M. The  police-party got themselves divided  into four  different teams and each took different strategic position by keeping a close vigil on the suspected persons.      During the  wee hours,  around 4.00 A.M. accused 1 to 5 sneaked out  from their  hiding place  in a  Toyota car. The police party  stopped the  car. When  its  driver  tried  to reverse it  in a  bid to escape, the police-party surrounded the vehicle.  They caught  the five  accused red-handed with lethal arms  as  well  as  ammunitions.  A-1  Subhash  Singh Thakuar had a pistol (0.38 bore) and four live cartidges; A- 3 Shyam Kishore Garikapti had a country-made pistol and some cartridges; A-4 Chanderkant Patil had a revolver (0.38 bore) and four live cartridges; A5 Paresh Mohan Desai had a button actuated Knife. With the help of Fateh Singh, SI of the Bomb Disposal  Squad,   the  hand-grenade   was  dismantled   and diffused. The  police-party seized all the lethal weapons as well as  ammunitions under seizure memorandums prepared then and there.  Requisitions were  forwarded to  the DCP seeking permission to  proceed with  the case  and  after  obtaining written  permission  they  arrested  the  five  accused  and brought them to the police station.      On 26.7.1993,  investigation of this case was made over to the Central) Bureau of Investigation as per orders of the Government.  On   interrogation  of  the  five  accused  CBI officials came  to know  that there  were links between them and other hardcore terrorists.      On 24.10.1993,  the  CBI  officials  caught  A-6  Ahmad Mansoor @  Suhel Ahmed  from near Jama Masjid area in Delhi, being an  active associate  of the  arrested persons besides being a member of the "Davood Ibrahim group." It was further revealed that  A-6 Ahmad  Mansoor and  other terrorists were sheltered by  A-9 (Kalpnath  Rai)  in  the  guest  house  of National Power Transmission Corporation (NPTC) at Safdarjang Development  Area  in  New  Delhi.  Such  accommodation  was arranged by  A-9 through his Personal Secretary S.P. Rai (A- 8). It was also revealed that A-10 (Brij Bhushan Saran Sing) a Member  of Parliament had sheltered some terrorists in his residence at  New Delhi.  It was  also known  that  A6-Ahmad Mansoor had  received substantial  financial  help  from  A7 (Sabu V.Chako) who gave shelter to A1 (Subhash Singh Thakur) as well  as one  B.N.Rai (another hardcore terrorist) in his "Hotel   Hans    Plaza"-    During    investigation    PW-45 (Superintendent of  Police) recorded confessional statements made by  A-1 to  A-6 in the purported exercise of Section 15 of TADA.  Section  to  prosecute  A1  was  accorded  by  the Director of  CBI, for the offence under Section 3(S) of TADA and Section  25 of  the Arms Act, 1959. Charge-sheet, at the first instance,  was filed  against A1  to A6  for the  said offences.  Learned  Judge  of  the  Designated  Court,  upon consideration of  the charge-sheet,  found that  there  were materials to  proceed against A7 (Sabu Chako) for harbouring some  terrorists.   Thereupon  he  issued  summons  to  that accused. Subsequently the CBI filed as supplementary charge- sheet against  A8 (SP  Rai), A9  (Kalpnath Rai),  A10  (Brij Bhushan Saran  Singh), A11  (Sanjay Singh) and A12 (M/s East West Travel  and Trade  Links Ltd.)  on the allegations that those accused have harboured one or another terrorist during some time or the other.      As A-11  (Sanjay Singh)  could not be brought to trail, inspite of  many  efforts,  he  was  declared  a  proclaimed offender and  the case  against him  was hence  split    up. Subsequently, the  Director  of  CBI  accorded  sanction  to prosecute all  the accused  in the  Designated Court.  After

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hearing both  the prosecution  and the  accused charges were framed against  different  accused  for  different  offences under TADA and also under Section 25 of the Arms Act.      After a  long drawn  trial, examining a large number of witnesses and  marking a  good number of documents and after questioning each of accused under Section 313 of the Code of Criminal  Procedure   (for  short   ’the  Code’)  and  after affording an opportunity to the accused for adducing defence evidence the  Designated Court convicted A1, A2 and A3 under Section 3(5)  and Section  5 of  the  TADA  and  also  under Section 25  of the  Arms Act, (Each of them was sentenced to undergo imprisonment  for life and a fine of rupees ten lacs under first count, imprisonment for five years and a fine of rupees ten thousand under the second count, imprisonment for three years  and a  fine of  rupees ten  thousand under  the third court)      A-4 was  convicted under  Section 3(4) and Section 5 of the TADA  as well  as Section  25 of  the Arms Act.  (He was sentenced to undergo imprisonment for life and a fine of Rs. five lacs  on the  first count,  imprisonment for five years and a  fine of  rupees ten thousand on the second count, and imprisonment for  three years  and  a  fine  of  rupees  ten thousand on the third count).      A-5 was convicted only under Section 25 of the Arms Act and was  sentenced to undergo imprisonment for the period he had already  undergone and  to pay  a  fine  of  rupees  ten thousand. A6  was convicted  under Section  3(5) of the TADA and was  sentenced to  undergo imprisonment  for life and to pay a fine of rupees five lacs.      A7, A8, A8 and A12 were convicted under Section 3(4) of TADA. (A7 was sentenced to imprisonment for five years and a fine  of   rupees  ten   thousand.  A8   was  sentenced   to imprisonment for five years and to pay a fine of rupees five hundred. A8  was sentenced  to undergo  imprisonment for ten years and  to pay  a  fine  of  rupees  ten  lacs.  A12  was sentenced to  pay a  fine of  rupees fifty lacs and a period was fixed  for  its  payment  and  provision  was  made  for recovery of  the fine in default of payment committed by the company.)  A10   (Brij  Bhusan   Saran  Singh)  was  however acquitted.      We heard  arguments of  different  senior  counsel  for different appellants  at  length.  Shri  V.R.  Reddy,  Add1. Solicitor  General   argued  for   CBI  in  defence  of  the conviction and sentence passed on the respective appellants.      We deem  it necessary to deal first with the contention pertaining to the requirement in Section 20A(1) of the TADA. If that contention deserves acceptance the entire charge and the subsequent  proceedings would  stand vitiated.  The sub- section reads like this:      "20A(1)  Notwithstanding   anything      contained   in    the   Code,    no      information about the commission of      an offence  under this Act shall be      recorded by  the police without the      prior  approval   of  the  District      Superintendent of Police."      All  the   senor  counsel   contended  that   the  said requirement was  not complied  with in  this case before FIR was registered  in respect  of  each  of  the  five  accused intercepted on  23.7.1993. PW1  (Prithvi Singh-Inspector  of Crime Branch)  who claimed  to  have  been  in  the  raiding operation has  deposed that  immediately after the arrest of the armed  men he  sent a  written application  to DCP (same rank  as   District  Superintendent   of   Police)   seeking permission to  register the case against first accused under

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the TADA.  According to  PW1 the application so forwarded is Ext. PW1/A  and DCP  has accorded  approval thereon. Similar applications were  forwarded by  the persons  who headed the other three  teams also and they to claimed to have obtained similar approval.  The said  factual position adopted by the Crime  Branch   was  very   hotly  assailed   during  cross- examination.      All the  applications  for  approval  were  typewritten records. PW1  has said  during cross-examination,  that  one typewriter was  brought from  the office  of the  ACP to the venue of  capture of  the accused  and all  the applications were  got  typewritten  on  it.  The  trial  judge  was  not persuaded to  believe this  part  of  the  evidence  of  the prosecution   because   the   types   found   on   different applications could  only have  been produced  from different typewriters.      We scrutinised  the application  and we  are  satisfied that there  is considerable  force in  the contention of the defence that all the applications were not typed on the same typewriter. So  the stand  of the  prosecution that  written requests were  made by  the police party for approval cannot be believed  and the contention of the defence on that score was rightly repelled by the Designated Court.      But the above finding is not enough to end the travails of the  appellants in  this case.  Ex. PW-1/D  is the report (Rukka) which  PW1 submitted  to  the  Crime  Branch  Police Station and  Ex. PW10.A  is the  FIR prepared  by  the  said police on  its basis.  It is clearly mentioned in the former that "permission  for registration  of the case was obtained from  DCP/CR   after  informing   him  of   the  facts   and circumstances." The  said fact is mentioned in the FIR also. So the  factual position  is this.  PW 10/A  is the  FIR. it could only  have been  made with  the approval obtained from the DCP, though it might not have been a written approval.      The the question is whether prior approval envisaged in Section 20A(1) of the TADA should necessarily be in writing. There is  nothing in  the sub section to indicate that prior approval of  the District Superintendent of Police should be in writing.  What is necessary is the fact of approval which is sine  qua non  for recording  the information  about  the commission of  the offence  under  TADA.  The  provision  is intended to  operate as  a check against police officials of lower ranks  commencing investigation  into  offences  under TADA because  of the  serious consequences which such action befalls the  accused. However,  the check can effectively be exercised if  a superior  police official of the rank of DSP first considers the need and feasibility of it. His approval can be  obtained even  orally if such an exigency arise in a particular situation.  So oral  approval by  itself  is  not illegal and would not vitiate the further proceedings.      The apart,  one of the offence included in the FIR (Ex. PW10/A) is  Section 5 of the Explosive Substances Act. There is no  legal requirement to obtain prior permission from the DSP to  register a case for that offence. So the FIR as such was not  vitiated even otherwise. Perhaps investigation into the offences  could not  have been  commenced until approval was obtained  from the  DSP. Be  that as it may, as we found that oral approval was obtained from the DSP concerned, that is sufficient to legalise the further action.      I Ahmad  Umar Saeed Sheikh vs. State of U.P. [1996 (11) SCC 61]  an FIR  was registered under Sections 332, 307, 427 of the  IPC and  also under Sections 3 and 4 of the TADA. No prior approval  was obtained  in  that  case  under  Section 20A(1) and  hence it  was contended  that the entire FIR was liable to  be quashed.  A  Bench of two judges of this Court

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has repelled the contention and observed thus:      "It is of course true that when the      above FIR  was  recorded  no  prior      approval of  the Superintendent  of      Police  was  obtained  as  required      under  Section   20A(1)   but,   as      noticed above, the FIR was recorded      not only  for offences  under  TADA      but also  for  offences  under  the      Indian Penal Code for commission of      which the  police officer concerned      was  competent   to  lodge  an  FIR      without such  approval. The absence      of     approval     of     District      Superintendent   of    Police    as      required under  Section  20A(1)  of      TADA at that stage only disentitled      the   investigating    agency    to      investigate   into   the   offences      relating  to  TADA  but  it  had  a      statutory right to investigate into      the other  offence alleged  in  the      FIR."      The next  hurdle which  prosecution has to surmount was regarding sanction  under Section  20A(2) of  the TADA.  The sanction accorded by the Director of the C.B.I. to prosecute A-1 to  A-6 has  been marked  in this case as Ext. PW-93/27. The order  narrates the facts leading to the seizure of arms and  ammunitions   from  A-1  to  A-5  and  also  about  the activities of  A-6. In  the operative  portion  thereof  the Director has stated thus:      "AND WHEREAS  I. K. Vijay Rama Rao,      Inspector General  of Police, Delhi      Special  Police   Establishment   &      Director,   Central    Bureau    of      Investigation, New  Delhi being the      competent  authority   to  sanction      prosecution in  respect of offences      u/s 3(5)  of TADA (p) ACT, 1987 and      25  Arms   Act,  1959   fully   and      carefully  examining  the  material      placed before  me in  regard to the      said allegations  and circumstances      of the  ace consider  that  accused      Scubas   Sing   Thakur,   Jaynendra      Thakur, Shyam  Kishore Garikapatti,      Chandrakant Patil,  Paresh Mohanlal      Desai and Mod. Ahmed Mansoor should      br prosecuted  in the  court of law      for the said offences.      NOW,  THEREFORE,   I  ........   do      hereby accord  sanction  u/s  20(A)      (2) of  TADA (P)  ACT, 1987 for the      prosecution of  S/Sh. Subhash Singh      Thakur,  Jayendra   Thakur,   Shyam      Kishore  Garikapatti,   Chandrakant      Patil, Paresh  Mohanlal  Desai  and      Mohd. Ahmed  Mansoor for  the  said      offences in  respect  of  abovesaid      acts and  taking of  cognizance  of      the said  offences by  the court of      competent jurisdiction."      Learned counsel  for the  appellants made multi-pronged onslaught on  the aforesaid  sanction.  First  is  that  the sanction is  not sufficient  to proceed  against the accused

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under Section  3(4) and  under Section 5 of the TADA. Second is, the  sanctioning authority  did not  intend  prosecution proceedings to  be launched  against the  appellants for any offence other  than  those  specifically  mentioned  in  the sanction order.  Third is,  the sanction  even in respect of offences mentioned therein is without application of mind of the sanctioning authority.      We may  observe, straightway, that we are not impressed by the  third point  as we  are satisfied,  by  reading  the sanction order,  that the  authority concerned was satisfied of the facts constituting the offences mentioned therein. Of course, Shri  V.S. Kotwal,  learned senior counsel contended that sanctioning  authority did not have necessary materials before him  to show  that the  arms seized on 23.7.1993 were live arms. But the report of the officers who seized them to the effect  that they  were live  arms was  available to the Director of  C.B.I. If  he felt  that such  a report  can be believed it  is not  necessary that the Director should have waited for  the result  of the  analysis  conducted  by  the laboratory upon  those arms.  That the sanctioning authority really intended  to launch  prosecution for  the offence  of illegal  possession   of  arms   is  quite  clear  from  the statements made  in the  order. True,  the section  for  the offence (Section  5  of  TADA)  has  not  been  specifically mentioned therein  but that  is of  no serous consequence as long as  the authority has specified the facts and mentioned further that  for  the  offence  arising  from  such  facts, sanction is accorded.      In this  context we  would refer  to Section 465 of the Code:      "465.  Finding   or  sentence  when      reversible  by   reason  of  error,      omission  or   irregularity.-   (1)      Subject    to     the    provisions      hereinbefore contained, on finding,      sentence or order passed by a court      of competent  jurisdiction shall be      reversed or  altered by  a court of      appeal, confirmation  or revision o      account of  any error,  omission or      irregularity  in   the   complaint,      summons,   warrant,   proclamation,      order,    judgment     or     other      proceedings before  or during trial      or  in   any   inquiry   or   other      proceedings under this Code, or any      error,  or   irregularity  in   any      sanction   for   the   prosecution,      unless  in   the  opinion  of  that      Court, a  failure of justice has in      fact been occasioned thereby.      (2)  In   determining  whether  any      error, omission  or irregularity in      any proceeding  under this Code, or      any error,  or irregularity  in any      sanction for  the  prosecution  has      occasioned a  failure  of  justice,      the Court shall have regard to that      fact whether  objection  could  and      should  have   been  raised  at  an      earlier stage in the proceedings."      In the  corresponding provision  under the old Code (of 1898) the words "or any error or irregularity i any sanction for the  prosecution" were  absent. Legal position under the old Code, as settled by the decisions of various courts, was

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that any  defect in  sanction was  not curable and hence the prosecution itself  would have been void. [vide Dr. Hori Ram Singh vs.  Emperor (AIR  1939 FC  43), Gokulchand  Dwarkadas Ramayya Munipalli vs. State of Bombay (AIR 1955 SC 287).      When Parliament enacted the present Code they advisedly incorporated the  words "any  error or  irregularity in  any sanction for  the prosecution" in Section 465 of the present Code as they wanted to prevent failure of prosecution on the mere ground of any error or irregularity in the sanction for prosecutions. An  error or  irregularity in  a sanction may, nevertheless, vitiate  the prosecution only if such error or irregularity has occasioned failure of justice.      Learned counsel  adopted  a  twin  contention  on  this aspect. First  is that the defence has raised this objection at the  earliest instance itself as they were concerned with the  impact   of  such   irregular  sanction  affecting  the prosecution. Second is that non-mention of other offences in the sanction is not merely an irregularity but it will go to the root of it.      Sub-section (2)  of Section  465 of  the Code  is not a carte blanche for rendering all trials vitiate on the ground of the  irregularity of  sanction if  objection thereto  was raised at  the first  instance itself.  The sub-section only says that  "the court  shall have  regard to  the fact" that objection has  been raised  at  the  earlier  stage  in  the proceedings. It  is only  one of  the considerations  to  be weighed but  it dos not mean that if objection was raised at the earlier  stage, for that very reason the irregularity in the sanction  would spoil  the prosecution and transmute the proceedings into a void trial.      Shri  V.R.  Reddy,  learned  Add1.  Solicitor  General, adopted another contention in this context. According to hm, Section 12(2)  of  the  TADA  is  sufficient  to  equip  the Designated Court  with valid  jurisdiction  to  convict  any accused for  any other  offence whether  or not sanction for such offence  was also  accorded. The said sub-section reads as under:      "If, in  the course  of  any  trial      under this  Act of  any offence, it      is found  that the  accused  person      has  committed  any  other  offence      under this  Act or  any  rule  made      thereunder or  under any other law,      the Designated  Court  may  convict      such person  of such  other offence      and pass any sentence authorised by      this Act  or such  rule or,  as the      case may  be, such  other law,  for      the punishment thereof."      There the  words "in the course of any trial under this Act of  any offence"  pertain to  the trial in respect of an offence  for   which  sanction  has  been  accorded  by  the authority as  contemplated under Section 20A(2) of the TADA. Similarly, the  words "any  other offence  under this Act or any rule  made thereunder or under any other law" denote all offences other than those falling in the first category. The intention of  the Parliament  in conferring  such a power on the Designated  Court is  to  prevent  unmerited  escape  of offenders from  the clutches  of penal  consequences even in cases where the Designated Court is satisfied during a valid trial that  some other  offence has  been established beyond reasonable doubt.  Once cognizance of any offence under TADa has been taken validly by the Designated Court with a proper sanction the  court  is  not  disabled  from  convicting  an accused for  any other  offence  proved  during  the  trial,

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whether or not sanction has been accorded in respect of such other offence.  The raisin d’etre is that it is the court of law which  after a  judicial scrutiny  is satisfied  on  the materials placed  before it  that another  offence has  been made out  and such  satisfaction is of a higher calibre than the satisfaction  of a  sanctioning authority.  The sanction envisaged in  Section 20A.  is, of course, a curb imposed on the prosecution agency to approach the Designated Court with a case.  But once  such approach  is validly  made with  the proper sanction  then the court gets a wider jurisdiction to deal with  the offenders in respect of all offences made out in the trial.      A-1, A-2, A-3 and A-6 were convicted under Section 3(5) of TADA  in addition  to other offences. For convenience, we reproduce the sub-section here:      "Any person  who is  a member  of a      terrorists  gang  or  a  terrorists      organisation, which  is a  involved      in   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."      The sustainability  of  the  conviction  thereunder  is assailed before  us from different angles. First is that the provision itself  is invalid  due to stark vagueness. Second is, to claw down to the tentacles of the provision it is not enough that the accused concerned is a terrorist by himself, but he  should have membership in a terrorists gang which is involved  in   terrorist  acts.   The  third  is  that  both ingredients  i.e.   membership  of   terrorists’  gang   and involvement of  such gang  terrorist acts,  must have  taken place after  the sub-section  was enacted.  According to the counsel there is utter lack of evidence in this case in that regard.      Sub-section 3(5) was inserted in TADA by Act 43 of 1993 which into  force on  23.5.1993. Under  Article 20(1) of the Constitution "no  person shall  be convicted  of any offence except for  violation of  a law  in force at the time of the commission of  the act  charged as an offence". So it is not enough  that  one  was  member  of  terrorists  gang  before 23.5.1993.      There are  two postulates  in sub-section (5). First is that the  accused should have been a member of "a terrorists gang" or  "terrorists organisation"  after 23.5.1993. Second is that  the said  gang or organisation should have involved in  terrorist  acts  subsequent  to  23.5.1993.  Unless  bot postulates  exist  together  Section  3(5)  cannot  be  used against any person.      "Terrorist act"  is defined  in Section  2(h) as having the meaning assigned to it in Section 3(1). That sub-section reads thus:      "Whoever with intent to overawe the      Government as by law established or      to strike  terror in  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      inflammables  substances  or  fire-      arms or  other  lethal  weapons  of

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    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."      The requirements of the sub-section are: (1) the person should have  done an act in such a manner as to cause, or as is likely to cause death or injuries to any person or damage to any property, or disruption of any supplies; (2) doing of such act should have been by using bombs dynamites etc.; (3) o alternatively  he should  have  detained  any  person  and threatened to  kill or  injure him  in order  to compel  the Government or  any other  person to do or abstain form doing anything.      He  who   does  a  terrorist  act  falling  within  the aforesaid meaning is liable to be punished under sub-section (2) of  Section 3.  But there  are some  other acts  closely linked with  the above  by not  included in sub-section (1), such as  entering into  a conspiracy to do the above acts or to abet, advise, incite or facilitate the commission of such acts. Such  acts are  also made punishable under sub-section (3) which reads thus:      "(3) Whoever  conspires or attempts      to  commit,  or  advocates,  abets,      advises  or  incites  or  knowingly      facilitates the  commission  of,  a      terrorists   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."      Can it  be said  that a  person who  conspires,  abets, advises or incites or facilitates the commission of the acts specified in  sub-section (1) was not committing a terrorist act? It  would be  illogical delink  the acts  enumerated in sub-section (3)  from those specified in sub-section (1) for the purposes of understanding the meaning of "terrorist act" indicated in Section 3(5).      It is  a cardinal  principal of  interpretation of  law that the  definition  given  in  a  statute  is  not  always exhaustive unless  it is expressly made clear in the statute itself. They key words in the definition section (section 2) themselves are  clear guide  to show  that  the  definitions given thereunder  are to  be  appropriately  varied  if  the context so  warrantees. The  key words  are these:  "In this Act, unless the context otherwise requires".      Therefore the  meaningful understanding should be this. For the  purpose of  sub-section (2)  the terrorist acts are those specified  in sub-section  (1) whereas fro the purpose of sub-section (5) the terrorist acts would embrace not only

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those enumerated  in sub-section  (1) but  those other  acts closely linked  to them  and indicated  in  sub-section  (3) also.      When so  understood, if  there is  any evidence to show that the  gang to  which A-1, A-2, A-3 or A-6 or any of them was a member, has done any such act after 23.5.1993 then the accused concerned  is liable  to be  convicted under Section 3(5) of TADA.      But the  fact is, in none of the charges framed against the above  accused  there  is  any  specification  that  any terrorist act  has been  committed by  a gang  subsequent to 23.5.1993, nor has any evidence, whatsoever, been adduced to show that  any terrorists  gang (of  which those accused are the members  or not)  has committed  any terrorist act after the said date.      In the  light of stark paucity of materials in evidence and in  view of  total want  of any  averment in the charges regarding any  activity after  the said  date it would be an idle exercise  to further probe into the width and amplitude of  the   expression   "terrorists   gang"   or   "terrorist organisation" or  as to  whether A-1,  A-2, A-3  or A-6 were members of any such gang.      The result  of the  above discussion is that conviction of A-1  to A-6  for the  offence under  Section 3(5) of TADA cannot be  sustained under law.      Now, we  proceed to  consider whether the offence under section 3(4)  of TADA  has been  made out  against A-7 (Sabu V.Chako), A-8(SP Rai), A-9 (Kalpnath Rai) and A-12 (M/s East West Travel  Links). Before  we take  up the individual case against each  one of  them we  may refer  to the  contention severally made  by the  learned counsel on a point of law as against the  conviction under  Section 3(4), Sub-section (4) of Section 3 of TADA reads thus:      "Whoever harbours  or conceals,  or      attempts to harbour or conceal, any      terrorist 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."      The word  "harbours" has  not been  defined in TADA. An endeavour was  made, during  arguments,  to  hook  with  the meaning attached  to the  same word in the Indian Penal code on the  strength of  section 2(1)(i) of the TADA which reads thus:-      "Words and  expression used but not      defined in  this Act and defined in      the code  shall have  the  meanings      respectively assigned  to  them  in      the code."      The Word "Code" in TADA must be understood as referring to the  Code of  Criminal Procedure.  1973, as  per  Section 2(1)(b) of TADA. But the word "harbour" has not been defined in the  Code. Section 2 of the Code which is a fasciculus of definition clauses  contains an  opening to  the  definition clauses in  the Indian  Penal Code by the following words in clause ’Y’ of Section 2 of the Code:      "Words and  expression  used herein      and not  defined but defined in the      Indian Penal Code (45 of 1860) have      the meanings  respectively assigned      to them in that Code."      On the  strength of the above provision learned counsel contended that  the word  "harbour", which is not defined in

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TADA, must  be understood  in  the  same  manner  as  it  is understood in the Indian Penal Code.      There are  two hurdles  in the  way to  adopt  the  IPC definition of  the word "harbour" as for TADA. First is that TADA permits  reliance to  be made  only on  the definitions included in the Procedure Code and not on the definitions in the IPC.  Second is, the word "harbour" as such has not been used in  the Procedure  Code and hence the question of side- stepping to Penal Code definitions does not arise.      Be that  as it  may, we  would refer  to the expression "harbour" as  understood in  IPC, for, TADA is essentially a penal statute and hence the meaning attached to the words in the IPC can have a bearing on the words used in TADA, unless they are differently defined in the Code.      Section 52-A  of India  Penal  Code  defines  the  word "harbour" as including:      "Supplying a  person with  shelter,      food, drink,  money, clothes, arms,      ammunition or  means of conveyance,      or the  assisting a  person by  any      means, whether  of the same kind as      those enumerated in this section or      not to evade apprehension."      Sections  136   and  312  of  IPC  are  the  provisions incorporating two  of the  offence  involving  "harbour"  in which the  common words  used are "whoever knowing or having reason to  believe."  Another  offence  in  the  Penal  Code involving "harbour"  is section  157 wherein  also the words "whoever  harbours   knowing  that  such  person  etc."  are available. It  was contended  that mens  rea  is  explicitly indicated in  the said  provisions in the Penal Code whereas no such  indication is  made in  Section 3(4)  of  TADA  and therefore, the  elements of  mens rea must be deemed to have been excluded from the scope of Section 3(4) of TADA.      The word  "harbours" used in TADA must be understood in its ordinary meaning as for penal provisions. In Black’s Law Dictionary its meaning is shown as "to afford lodging to, to shelter, or  to give  a refuge to". Quoting from Susnjar vs. U.S.,  CCA   Ohio,  27   F.2d  223,   224,  the   celebrated lexicographer has  given the  meaning of the word harbour as ’receiving clandestinely  and  without  lawful  authority  a person for  the purpose  of so  concealing him  that another having a right to the lawful custody of such person shall be deprived of the same." In the other dictionaries the meaning of the  said word is delineated almost in the same manner as above. It  is, therefore,  reasonable to  attribute a mental element (such  as knowledge  that the  harboured person  was involved in  a terrorist  act) as indispensable to make it a penal act.  That apart,  there is nothing in the Act, either expressly or  even by implication, to indicate that mens rea has been  excluded from  the offence  under Section  3(4) of TADA.      There is  catena of  decisions which  has  settled  the legal proposition  that unless  the statute clearly excludes mens rea  in the  commission of  an offence the same must be treated as  essential ingredient  of  the  criminal  act  to become punishable.  (State of  Maharashtra  vs.  Mayer  Hans George, AIR  1965 SC  722, Nathulal  vs. State  of M.P., AIR 1966 Sc 43).      If  Section   3(4)  is  understood  as  imposing  harsh punishment on  a person  who gives  shelter to  a  terrorist without  knowing   that  he   was  a   terrorist   such   an understanding would lead to calamitous consequences. Many an innocent person,  habituated to offer hospitality to friends and  relatives  or  disposed  to  zeal  of  charity,  giving

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accommodation and  shelter to  others without  knowing  that their guests  were involved in terrorist acts, would then be exposed to incarceration for a long period.      For all  the above  reasons we hold that mens rea is an essential ingredient  for the  offence envisaged  in Section 3(4) of TADA.      On the above understanding of the legal position we may say at  this stage  that there  is no  question  of  A-12  - company to  have had  the mens rea even if any terrorist was allowed to occupy the rooms in Hotel Hans Plaza. The company is not  a natural  person. WE are aware that in  many recent penal statutes,  companies or  corporations are deemed to be offenders on  the strength  f the  Acts committed by persons responsible for the management of affairs of such company or corporations e.g.  Essential Commodities  Act, Prevention of Food Adulteration Act etc. But there is no such provision in TADA which  makes the  company liable  for the  acts of  its officers. Hence, there is no scope whatsoever to prosecute a company for  the offence  under Section  3(4) of  TADA.  The corollary is  that the  conviction passed  against  A-12  is liable to be set aside.      A-7 (Sabu  V. Chacko)  the  Regional  Manager  of  A-12 company has been convicted of the offence under Section 3(4) on the strength of a finding that he had harboured A-6 Ahmed Mansoor in  Hotel Hans  Plaza, New  Delhi on  different days during a  period between  February  and  October  1993.  For proving the said offence against him prosecution should have established four  facts. They are: (10 A-6 Ahmed Mansoor had stayed in  the Hotel;  (2) Such  stay was  arranged  at  the behest of  A-7; (3) A-6 himself was a terrorist; and (4) A-7 knew that A6 was a terrorist.      Shri. Gopal  Subramaniyam, learned  senior counsel  who argued for  A-7 contended  that even  the first fact has not been established  in this case and hence there is no need to proceed to the other essentials.      There is  enough evidence  in this  case to show that a person called  "Suhel Ahmed"  had stayed  in the  said hotel during the  said period.  We do  not think  it necessary  to refer to  the evidence  in that  respect  as  it  is  not  a disputed fact.  However, there must be evidence to show that the said  Suhel  Ahmed  is  A-6  Mansoor.  Unfortunately  no witness has  started so  nor has any one identified the said Suhel Ahmed  as one  of the  arraigned accused. An endeavour was, of course, made by the prosecution to show that A-6 had impersonated in  other areas  as Suhel Ahmed. Even if it was so, what should have been established is that A-6 had stayed in the  hotel.   But not  witness said  that    fact  during evidence.      Learned judge of the Designated Court has relied on two letters which  he had received presumably from A-7 while the accused was languishing in Jail during the pre-trial period. Learned judge while questioning A-7 under Section 313 of the Code whipped  out those letters from his pocket, marked them as Ext. DA-7/1 and DA-7/2 and asked the following question:      Question:-  You  had  submitted  to      this court  document Ex.  DA-7/1  &      DA-7/2 under  your signatures, What      have you got to say?      Before A-7  answered  the  question  he  wanted  to  go through them and after going through the letters he answered thus:      "Both documents bear my signatures.      They were  prepared by  my  brother      and my  representatives but  I  had      signed them  without reading  them.

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    They were submitted to the court on      my behalf  but I was not having any      knowledge whether  these have  been      submitted to the court or not."      The above  letters, read as a whole, were in substances a litany of his innocence. Such as:      "My lord, Sir, I suffered all these      9 months  for not being guilty. Sir      I have  a family.  I  have  only  a      small dram,  to lead  a  good  life      with my  family  without  any  over      ambitions.      with pain  and sorry  I request you      to please  take appropriate actions      against the  people  who  tell  and      spread the  untold story  which you      or CBI  never told. Because that is      an assasination of the character of      a person who does not know anything      or did  not do  anything wrong.  My      Lordship, I  have never  even heard      the name  of A1  to A6. or met them      in any  life before I came to jail.      I the  name of  Jesus I  can assure      you these things. My Lordship, I am      swearing in  the name  of God, I am      an innocent  man, Please relieve me      from this  agony and  pain.  Please      relieve  me  from  this  agony  and      pain. If  not, I do not think I can      take all  these  things  for  long.      Please have pity on me."      But  the  unfortunate  aspect  is,  learned  judge  has extricated one  sentence out of those letters and used it as though it  was  art  of  prosecution  evidence  against  the accused and  jettisoned the  entire remaining  bulk  of  the letters which  are lengthy  supplications for  kindness  and mercy.      It was  illegal on the part of the learned judge of the Designated Court  to have used any part of the said letters, especially when  those letters  were not adduced as evidence in the  case through any procedure known to law. Not even an affidavit has  been filed  by any  one atheist  for formally proving those  letters in  evidence. Section 314 of the Code is intended  to afford opportunity to an accused "to explain any circumstance  appearing in the evidence against him." It is trite  that an  accused cannot  be confronted during such questioning with any circumstances which is not in evidence. Section 313  of the  Code is  not intended  to be used as an interrogation. No  trial court  can pick   out  any paper of document from  outside the  evidence and abruptly slap it on the   accused and corner him for giving an answer favourable or unfavourable.  The procedure adopted by the learned judge is using  the said  two letters  is not permitted by law. We therefore, disapprove  the said  course and  dispel the said letters book bell and candle.      What remains  as against A-7 is that one person by name Suhel Ahmed  had stayed  in Hotel  Hans Plaza - nothing more and nothing else. We need not, therefore, proceed further to the other  three requirements  necessary to  fasten him with liability  under  section  3(4)  of  TADA.  The  result  is, conviction of A-7 in this case cannot be upheld.      The case  against A8. (S.P. Rai) and A-9 (Kalpnath Rai) can be  considered together  so that  much overlappings  and repetitions can  be averted. A-8 was the Additional Personal

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Private Secretary  of A-9 during the tie when the latter was Union Minister  of State  for Power. The charge against them is that  they   have sheltered  two terrorists  (A-1 Subhash Singh Thakur  and another  person called  "V.N. Rai") in the guest house  attached to  the  National  Power  Transmission Corporation (NPTC  for  short),  now  known  as  Power  Grid Corporation. V.N.  Rai is  said to be an accused in JJ shoot out case.  The finding  of the  Designated Court is that A-8 had harboured A-1 Subhash Singh Thakur and A-9 has harboured V.N. Rai during certain period in 1992.      Shri Jaitley, learned senior counsel who argued for the accused has  contended that  even assuming  that a person by name V.N. Rai had stayed in the NPTC Guest House there is no evidence that  he was a terrorist and that there is no shred of evidence  that A-9  knew  that  the  said  person  was  a terrorist.      There seems  to be  some evidence to show that a person by name  "B.M. Rai" had stayed in the Guest House concerned. PW-21 was  the Senior  Manager (Admn.)  in  the  Power  Grid Corporation. He  said that  a person called V.N.  Rai had to be accommodated  in the guest house on the recommendation of A-8. This  was corroborated  by PW-38  who was Add1. General Manager of  the said  corporation, though  there is a little discrepancy in  the name mentioned by the last two witnesses (one said  it was  on B.N.  Rai, the other witness said that the name  is B.M. Rai), but nobody had identified the person called B.N.  Rai or  B.M. Rai  in the  trial court. There is nothing to show that the said person had anything to do with any  terrorist  activity.  Of  course  prosecution  made  an endeavour to  show that  the person  called B.N.  Rai is the same person arraigned in JJ shoot out case by name "Vijendra Rai". Apart from the absence of any connecting nexus between Vijendra Rai in JJ shoot out case and B.N. Rai (or B.M. Rai) who stayed  in the  guest house,  there is no legal evidence whatsoever  to   prove  that  Vijendra  Rai  himself  was  a terrorist.      It appears  that there is some evidence in this case to show that  A-1 had  stayed in the NPTC Guest House but there is no  evidence to  show that is stay was at the instance of A-8 S.P. Rai. Hence it is unnecessary to proceed to consider the next  aspect whether  A-8 was  having any knowledge then that A-1 was a terrorist.      The result  of the above discussion is that A-8 and A-9 cannot be  convicted of  the offence  under Section  3(4) of TADA.      Turning to  the case  against A-4 that he had harboured A-1, A-2  and A-3, we must observe that the only evidence on record on  that score  is the  statement recorded from those three  accused   by  the  Superintendent  of  Police.  Those statements are described as confessional statements. To what extent those  confessional statements have involved A-4 need be considered  only if  the confession of one accused can be used against another accused.      Section 15  of the  TADA provides that "notwithstanding anything in  the Code or in the Indian Evidence Act ...... a confession made  by a  person before  a police  officer  not lower in  rank than  a Superintendent of Police ...... shall be admissible  in the  trial of  such person  or co-accused, abettor or  conspirator for  an offence  under this  Act  or rules made  thereunder provided  that co-accused, abettor or conspirator in  charged and  tried in the same case together with the accused". In this context we may point out that the words  "or  co-accused,  abettor  or  conspiration"  in  the proviso were  not in  the section until the enactment of Act 43 of  1993 by  which those words were inserted. By the same

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amendment Act  Section 21  was  also  recast  which,  as  it originally stood,  enabled the  Designated Court  to draw  a legal presumption that the accused had committed the offence "if it  is proved  that a  confession has been made by a co- accused that the accused had committed the offence-"      The legal  presumption linked to an accused vis-a-vis a confession  made   by  a  co-accused  had  been  deleted  by Parliament through  Act 43 of 1993 and as a package inserted the words mentioned above in Section 15.      What is the effect of such deletion from Section 21 and addition to Section 15 of TADA? It should be remembered that under Section  25 and  26 of  the Evidence Act no confession made by  an accused  to a  police officer,  or to any person while  he  was  in  police  custody  could  be  admitted  in evidence, and  under Section  162 of  the Code  no statement made by  any person during investigation to a police officer could  be  used  in  a  trial  except  for  the  purpose  of contradiction. In  view of  the aforesaid ban imposed by the legislature Section  15 of the TADA provides an exception to the ban.  But it  is well to remember that other confessions which are  admissible even  under the  Evidence Act could be used as   against  a co-accused  only  upon  satisfaction  o certain  conditions.   such  conditions  are  stipulated  in Section 30 of the Evidence Act, which reads thus:      "When more  persons  than  one  are      being tried  jointly for  the  same      offence, and  a confession  made by      one  of   such  persons   affecting      himself  and  some  other  of  such      persons is  proved, the  court  may      take   into    consideration   such      confession as  against  such  other      person  as   well  as  against  the      person who makes such confession."      The  first   condition  is   that  there  should  be  a confession  i.e.   inculpatory  statement.  Any  exculpatory admission is  not  usable  for  any  purpose  whatsoever  as against a co-accused. The second condition is that the maker of the confession and the co-accused should necessarily have been tried  jointly for the same offence. In other words, if the co-accused  is tried  for some  other offence, though in the same  trial, the  confession made  by one  is not usable against  the   co-accused.  Third   condition  is  that  the confession made by one accused should affect himself as well as the co-accused. In other words, if the confessor absolves himself from the offence but only involves the co-accused in the crime,  while making  the confession,  such a confession cannot be used against the co-accused.      Even if  no conditions  are  satisfied  the  use  of  a confession as  against a  co-accused  is  only  for  a  very limited  purpose   i.e.  the     same   can  be  taken  into consideration as  against such  other person. It is now well settled that  under Section  30  of  the  Evidence  Act  the confession made  by one  accused is not substantive evidence against a  co-accused. It  has only  a corroborative  value, (vide Kashmira  Singh vs. State of Madhya Pradesh - AIR 1952 SC 159,  Nathu vs.  State of Uttar Pradesh - AIR 1956 SC 56, Haricharan Kurmi vs. State of Bihar - AIR 1964 SC 1184)      A confession  made admissible  under Section  15 of the TADA can  be used  as against  a co-accused only in the same conditions as stipulated in Section 30 of the Evidence Act.      In view of the above legal position the confession made by A-1(Subhash  Singh Thakur),  A-1(Jaynendra Thakur  and A- 3(Shyam  Kishore   Garikapti)  cannot  be  used  against  A- 4(Chanderkant Patil),  even as  for  corroborative  purposes

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because the  former set  of accused  were not  tried for the offence under  Section 3(4)  of TADA. So the first condition set for  the in  Section 30  of the  Evidence  Act  is  non- existent. Though  under Section 15 of TADA such a confession is admissible  in evidence  even when  the confessor and the co-accused are  tried in  the same case (no matter that they are not  tried together for the same offence) the utility of such  a   confession  as   against   the   co-accused   gets substantially impaired  for all  practical  purposes  unless both of them are tried for the same offence. Consequently in the present  trial the  confessions made  by the first three accused would  remain at  bay so  far  as  A-4  (Chanderkant Patil) is concerned as for Section 3(4) of TADA. The further corollary is  since there is no substantive evidence against A-4 regarding  Section 3(4)  of TADA  he cannot be convicted under this Section.      Now we  have to  consider the  case of prosecution that the police  party conducted  a raid  during the wee hours of 23.7.1993 and  rounded up A-1 to A-5 red-handed with illegal arms and  ammunition while  they were proceeding in a Toyota car.      We have  to observe,  at the outset on this point, that even if  prosecution story is accepted by us and the finding of the  Designated Court  is upheld  on this  point  we  are unable to  uphold the conviction of A-5 (Paresh Mohan Desai) under  Section  25  of  the  Arms  Act.  A-5  was  found  in possession of  only a  knife the  length of  which is  9.2". Possession of  a knife,  if that has to amount to an offence under the  aforesaid provisions,  must be  of such  a  knife which  should   answer  the  description  specified  in  the notification issued  under Section  4 of  the Arms  Act. The notification which was in force at the relevant time was No. 13/203/78-Home(G). What is prohibited under the notification is possession  of a knife having a length of  7.62 cm. and a width of  7.2 cm. or above. In the charge framed against A-5 (Paresh Mohan  Desai) there is no averment that he possessed a  knife   of  the  above  description.  Nor  is  there  any indication in  the document  evidencing seizure of the knife regarding its  width.  In  view  of  the  total  absence  of anything in  the evidence  that A-5 possessed a knife of the description specified  in  the  notification,  he  would  be entitled to an acquittal of the said offence.      According to  the evidence,  the police  party went  to Gagan Vihar Extension, Vikas Marg, New Delhi  in 6 motorcars and they  reached the  place by  about 3  A.M. and  they got divided themselves  into four  different squads and remained at four  different spots  within the  proximity of  the iron gate of  the colony. When they spotted the Toyota car moving out of  the colony  the police  party stopped  it before the vehicle could  cross the  gate. It  was  surrounded  by  the police personnel  and the lethal weapons which were found in the possession of the miscreants were seized.      PW-1 (Prithvi  Singh, Inspector  of Crime  Branch)  has said in his evidence that the first squad caught hold of A-4 (Chanderkant  Patil)   and  seized   a  revolver   and  live cartridges from him. That version is fully supported by PW-8 (Lalit Kumar,  HC) and PW-9 (Rajinder Gautam, Inspector) who were in that team. the second squad caught hold of A-2 (Bhai Thakur) and  seized one  0.38 pistol  and 4  live cartridges from him.  That version  is supported,  inter alia,  by PW-4 (Mehak Sing,  SI) and  PW-5 (Ashok  kumar, HC),  who were in that team.      The third  team consisted  of PW-6 (Roop Lal, SI), PW-7 (Surendra Singh, Constable), PW-11 (Rajendra Singh, ASI) and PW-12 (Mahabir  singh, HC)  as well  as others,  They caught

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hold of A-3 (Shyam Kishore Garikapati) and seized a country- made pistol as well as alive cartridge for him. That version is  spoken  to  by  the  aforesaid  witnesses  besides  PW-1 (Prithvi Singh).      The fourth  team consisted  of  PW-1  (Prithvi  Singh), Inspector), PW-2 (Jagdish, ASI), PW-3(Rakesh, Constable) and a few  other  policemen.  They  caught  A-1  (Subhash  Singh Thakur) who  had in  his possession one hand-grenade wrapped in the raxine bag. Immediately a requisition was sent to the Bomb Disposal  Squad for  defusing  the  grenade  which  was promptly reciprocated.  After it  was defused the same taken into  custody.  That  version  is  fully  supported  by  the aforesaid witnesses.      As against the said version of the prosecution the five accused had  put forth  a totally different version in their defence. According to them the police took them into custody from different  places on  19.7.1993 and detained them under illegal custody  and concocted  the present  version for the purposes of nailing them to a charge under TADA.      Learned counsel,  who  argued  for  different  accused, amongst the  first five,  cited before us a fact which looms large   in   all   the   confessions   recorded   by   PW-45 (Superintendent of  Police, Special  Task Force  of CBI). On three dates  during the  second week  of  August  1993,  the confessional statements  of those accused have been recorded by PW-45.  What has  been highlighted by the counsel is that narration  of   the  activities   in  all  the  confessional Statements stopped  with  18.7.1993  and  none  among  those confessors mentioned anything beyond 18.7.1993.      As  the  first  blush,  we  also  felt  that  the  said circumstance is  a formidable  one lending  credence to  the defence version.  But a  closer  scrutiny  of  the  evidence dissuaded us  from attaching  any such  significance to  the said  circumstance.   It  cannot   be  assumed   that   PW-5 Superintendent of  Police was  unaware when  he recorded the confessional statement that the police version was in favour of the  arrest of  those accused on 23.7.1993. Very probably the confessors  had no  significant activity  to be narrated after  18.7.1993  and  it  cannot  be  believed  that  those confessors were  unaware  of  what  happened  to  themselves subsequent to that date.      The second  point of  attach was  that the police party did not  examine a single independent witness to support the case that  the 5  accused were rounded up on the early hours of 23.7.1993,  nor did they secure the signature of at least one such independent person in any of the documents prepared at the time of seizure of the arms and ammunition.      As a  legal proposition  it was argued that it would be unsafe to  base a  conclusion  on  the  evidence  of  police officers alone  without being  supported  by  at  least  one independent person  from the locality. To reinforce the said contention  Shri.  V.S.Kotwal,  Senior  Advocate  cited  the decision of  this Court  in  Pradeep  Narayan  Madqaonkar  & others vs.  State of  Maharashtra [1995 (4) SCC 255] wherein want of  independent  witnesses  of  the  locality  rendered suspicious a raid conducted by the police.      There can  be no  legal proposition  that  evidence  of police officers,  unless supported by independent witnesses, is unworthy  of acceptance.  Non-examination of  independent witness of  even presence of such witness during police raid would cast  an added  duty on the court to adopt grater care while scrutinising  the evidence  of the police officers. If the evidence  of the  police officer  is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent

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witness was  examined. In  Pradeep Narain Madgaonkar (supra) to which  one of us (Mukherjee, J) is a party, the aforesaid position has  been stated in unambiguous terms, the relevant portion of which is extracted below:      "Indeed,  the   evidence   of   the      official (police)  witnesses cannot      be discarded  merely on  the ground      that  they  belong  to  the  police      force and are, either interested in      the    investigation     of     the      prosecuting  agency   but  prudence      dictates that  their evidence needs      to be  subjected to strict scrutiny      and    as     far    as    possible      corroboration of  their evidence in      material  particulars   should   be      sought. Their  desire  to  see  the      success of  the case based on their      investigation,   requires   greater      care    to     appreciate     their      testimony."      In Balbir  Singh vs. [1996 (11) SCC 139] this Court has repelled a  similar contention  based on non-examination  of independent witnesses.  The same  legal  position  has  been reiterated by  this  court time and again vide Paras Ram vs. State of  Haryana [1992 (4) SCC 662], Sama Alana Abdulla vs. State of   Gujarat  [1996 (1)  SCC 427],  Anil  alias  Andya Sadashiv Nandoskar  vs. State  of Maharashtra  [1996 (2) SCC 589], Tahir vs. State (Delhi) [1996 (3) SCC 338].      The factual  position is also to be mentioned now. PW-1 Prithvi Singh  has said  in evidence  that the  police party had, in  fact, tried  to get  one or  two persons who cam by that way  to remain  as witnesses  for the  action they were about to take but none of them obliged. We should not forget that the  time of  the raid  was during  the odd  hours when possibly no  pedestrian would have been trekking on the road nor any shopkeeper remaining in his shop nor a hawker moving around on the pavements.      Learned counsel then pointed out from evidence that the Daily Dairy  which was  maintained  in  the  police  station contained entries of all what happened on the early hours of the crucial date. They are not produced. Counsel, therefore, argued that  an adverse  inference can be made from the non- production of such diaries.      We do  not find  any force  in the  said contention  No doubt Daily Diary is a document which  is in constant use in police station.  But no  prosecution is  expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by  prosecution as   a  matter of  course in  every case, the  function of  the police  station would be greatly impaired. It  is neither  desirable  nor  feasible  for  the prosecution to  produce such diaries in all cases. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it.      Regarding to  the occurrence  on  the  early  house  of 23.7.1993, we  have before  us the  consistent version of 11 witnesses, of  course all  of them police officers, who have participated in the action. To support their version we have before us  in evidence  Ext. PW-1/D Rukkha which reached the police station  during the early hours of the same ay itself which contains a narration of the events which took place at Gagan Vihar  extension Delhi.   There  is no reason to doubt that the  said Rukkha  wold have been concocted subsequently because an FIR was registered in the same police station the

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strength of  the facts  revealed in the said Rukkha. The FIR is (Ext.  PW-10/A). We  put on record that nobody had argued before us  that the  said FIR  a subsequent  creation or was ante-dated.      A reference  to the  evidence of  PW-14 (Rajinder Kumar Jain) would  be apposite in this context. He is the owner of premises No. 105 Gagan Vihar Extension,  Delhi (which was in the  name   of  his  wife)  which  was  rented  out  to  A-4 (Chanderkant patil).  The witness  has said in evidence that A-4 was  staying in  that apartment  and  in  July  1993  he accommodated 4  or 5  friends in the same apartment with the permission of the landlord. The most important aspect of his testimony  is,  he  had  seen  A-4  in  the  apartment  till 23.7.1993. Of  course a  suggestion was  ut to  him that  he would have seen A-4 only till 18th or 19th of July 1993, but the witness  had emphatically  repudiated  that  suggestion. This evidence  of PW-14  us almost  a guarantee that A-4 was not taken  into police custody before 23.7.1993 and that his case in  defence  that  he  as  actually  nabbed  by  police 19.7.1993 is not a true version.      Thus we  can unhesitatingly  concur with the finding of the trial  court that  the prosecution version regarding the rounding of  A-1 to  A-5 during  the wee  hours of 23.7.1993 with arms and ammunition, is true.      The  upshot  is  the  following:  Prosecution  has  not established any case against A-5 to A-9 and A-12. Hence they are entitled  to acquittal.  We  therefore,  set  aside  the conviction and  sentence passed  on them and acquit them. WE also set  aside the conviction and sentence passed on A-1 to A-3 under   Section  3(5) of  TADA and  on A-4 under Section 3(4) of  TADA. But  A-1, A-2,  A-3  and  A-4  cannot  escape conviction under Section 5 of TAA and Section 25 of the Arms Act. We confirm their conviction under the said offences.      However, we are not satisfied that the minimum sentence of imprisonment for 5 years awarded by the trial court to A- 1 to  A-4 for  the  offence  under  Section  5  to  TADA  is commensurate to  the gravity  of the  offence.  Perhaps  the trial court would have been persuaded to award that sentence in view  of the  fact that  those accused  were sentenced to imprisonment under  Section 3(5)  of TADA.  Now that we have set aside  the conviction  of those  accused of  the offence under Section  3(5) of  TADA we  think that  the sentence of imprisonment awarded  to A-1  to A-4  for the  offence under Section 5  of TADA  must be  enhanced. We  can consider that aspect only after hearing A-1 to A-4  on the point. Hence we direct the  Registry to  serve notice on the counsel for A-1 to A-4  on the  proposal to  enhance the  sentence  for  the offence under Section 5 of TADA.